Citation Nr: 20009908 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-46 281 DATE: February 6, 2020 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a facial skin condition to include acne scarring is granted. New and material evidence having been received, the petition to reopen the claim for service connection for a skin condition to include scarring on the chest, shoulders, back, and stomach is granted. New and material evidence having been received, the petition to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for a skin condition, to include acne scarring, is denied. Service connection for a skin condition, to include scarring on the chest, shoulders back, and stomach, is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT 1. In an unappealed April 2008 rating decision, the RO denied service connection for a skin condition. 2. The evidence received since the April 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for a skin disability. 3. In an unappealed January 2009 rating decision, the RO denied service connection for PTSD. 4. The evidence received since the January 2009 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for a PTSD. 5. The evidence of record reflects that the Veteran’s currently diagnosed skin conditions clearly and unmistakably preexisted service and were not clearly and unmistakably aggravated by service. CONCLUSIONS OF LAW 1. The April 2008 rating decision, which denied service connection for a skin disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening of the claim seeking service connection for a skin disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2009 rating decision, which denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria for reopening of the claim seeking service connection for PTSD are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for a skin condition of the face to include acne scarring are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 6. The criteria for entitlement to service connection for a skin disorder of the back, shoulders, chest, and stomach are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to July 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the proceeding is of record. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. Skin Conditions Here, the claim of service connection for a skin condition was originally denied in an April 2008 rating decision. The Veteran submitted a Notice of Disagreement in October 2008 and a Statement of the case was issued in June 2010. The Veteran did not, however, file a timely VA Form 9 or its equivalent. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). As a result, the April 2008 rating decision became final. In the April 2008 rating decision, the RO noted that the Veteran’s enlistment exam showed a moderate degree of acne on the face, back and chest. His claim was denied on the basis that his skin condition was not related to active duty service and there was no evidence that the claimed disability had been clinically diagnosed. Evidence associated with the claims file after the April 2008 rating decision includes medical treatment records, lay statements, and the Veteran’s hearing testimony. This evidence indicates that the Veteran has a formal diagnosis of cystic acne with scarring. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely, the existence of a diagnosed disease. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. PTSD Here, the claim of service connection for a PTSD was denied in a January 2009 rating decision. Additional evidence was received within one year and the RO readjudicated the Veteran’s claim in April 2010 when the denial was confirmed and continued. The Veteran was notified of this decision and of his appeal rights in an April 2010 letter but did not perfect a timely appeal. Moreover, no evidence pertaining to the Veteran's claim was associated with the claims file within one year of the RO's decision. As a result, the decision became final. The Veteran’s claim for service connection for PTSD was again denied in a May 2014 rating decision. Relevant VA treatment records were associated with the file within one year of this decision and the Veteran’s claim was readjudicated in the September 2015 rating decision on appeal. In the April 2010 ratings decision, the RO denied the Veteran’s claim because there was no verifiable in-service event and the service treatment records did not show any treatment or symptoms for PTSD while on active duty. Evidence associated with the claims file following the April 2010 treatment records includes VA treatment records, lay statements, and the Veteran’s hearing testimony. This evidence contains details surrounding the Veteran’s claimed in-service stressor. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely, the existence of an in-service stressor. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. To rebut this presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Further, aggravation may not be conceded where the disability underwent no increase in severity in service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Given these provisions, the standard of proving a claim based on “aggravation” changes depends on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness was nevertheless rebutted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Skin condition of the face to include facial acne scarring and chest, shoulder, back and stomach. The Veteran is seeking service connection for a skin disability of the face, to include scarring and a skin condition of the chest, shoulders, back, and stomach. The Veteran has argued that these disabilities began during boot camp and have continued to the present. He also testified that he was unable to take his medication while on active duty based on the difficulty receiving treatment while on a submarine. Upon enlistment, the Veteran was examined and this February 2001 induction examination diagnosed mild to moderate pre-existing acne on his face, back and chest. At the Hearing, the Veteran testified that he had several sick calls regarding his acne to get medication. The record contains two records related to visits for acne treatment. The first on April 18, 2001, six days after becoming active. The Veteran was prescribed a facial wash and antibiotics for his condition. The second record is a Pseudofolliculitis Barbae Care (PFB) flow sheet for acne. The sheet noted that it was the first visit for the 20-year-old concerning his acne. Medications were prescribed and he Veteran received counseling regarding shaving techniques and Navy grooming regulations. A shaving waiver due to facial nodulocystic acne was added to the Veteran’s record. The flow sheet and waiver specifically noted the condition as acne and not PFB. While this record is not dated, it listed the Veteran’s age as 20 years, indicating that it was created between 2000 and 2001. The record also indicates that it was created as part of the Veteran’s entrance to submarine school, suggesting it was created in June 2001. May 2001 medical treatment records show that the Veteran sought treatment for a rash in the groin area that spread to his waist and ankles. Scabies was ruled out and the Veteran was told to return in a week if it did not get better. The evidence does not demonstrate that the Veteran sought follow up treatment. In a self-report of medical history completed at the time of his separation from service, the Veteran reported that he was not taking any medications and denied having skin diseases, to include acne. A clinical examination was conducted at the time of his separation from service and acne, to include acne scars, was not noted. Instead, the only skin abnormality identified by the examining medical officer was a tattoo on his right forearm. If the Veteran had acne, acne scars, or a skin disability, at the time of his separation from service such would have been recorded as the examiner had already pointed out a skin abnormality based on the presence of a tattoo. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). At the Hearing, the Veteran testified that the he was unable to take his medication onto his submarine due to regulations related to allowable items on a submarine. He stated that the regulations prevented him from taking his medication onto his submarine, thus preventing him from taking his medication. The record shows that the Veteran was prescribed medications in 2001; however, subsequent medical records indicate that the Veteran was not taking medications. On an October 2002 consultation sheet, the Veteran reported that he was not taking any medications and in his separation examination, the report indicates that the Veteran was not taking any medications. The Board has considered the Veteran’s statements that he was unable to treat his condition while in service, thus aggravating his condition. While the Veteran is competent to testify about his experience inservice; the Board finds his contemporaneous statements made to medical providers during service to be significantly more credible and probative than subsequent statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Specifically, the Board puts a greater weight in his written statements on his May 2005 assessment and 2006 examination that he did not have any skin conditions. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). In this case, the record clearly indicates that the Veteran entered service with a preexisting skin disability, received treatment, and his skin disability resolved. The record clearly indicates that there was no aggravation of the pre-existing disability. As discussed above, the Veteran ceased taking medication and his disability had resolved prior to his separation from service. Thus, the Veteran’s claims are denied. REASONS FOR REMAND With respect to the acquired psychiatric disorder claim, the Board finds that remand is warranted for additional development. At the December 2019 Hearing, the Veteran testified that sometime between 2002 and 2004, he was assaulted by a military police officer at Point Loma Base in San Diego. The Veteran recalls filing an incident report documenting the event. As the Veteran has provided additional details that could lead to verification of a stressor, remand is warranted. On remand, efforts should be made to verify this claimed stressor. The matters are REMANDED for the following action: 1. Obtain the incident report from Point Loma Base in San Diego California. All actions to verify the alleged stressor should be fully documented in the claims file. If the information provided by the Veteran lacks sufficient specificity to be verified, the AOJ should make a formal finding to that effect. 2. Then, the AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of all current psychiatric disorders. All diagnostic testing deemed to be necessary by the examiner should be accomplished. After examination of the Veteran and a review of the claims file, the examiner should do the following: a) The examiner should list all psychiatric disabilities diagnosed on examination. b) For any psychiatric disability (other than PTSD) diagnosed on examination, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder had its clinical onset in service or is otherwise related to active duty. c) For any PTSD diagnosed on examination, the examiner must identify the stressor(s) which serve as the basis for the PTSD diagnosis. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. V. Palatt, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.