Citation Nr: 20021283 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-30 718 DATE: March 25, 2020 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a skin disorder has been received, the application to reopen is granted. Service connection for a low back disorder is granted. Service connection for a left knee disorder is dismissed. Service connection for a right ankle disorder is dismissed. REMANDED Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. An unappealed November 1999 rating decision denied service connection for eczema; a subsequent unappealed rating decision in September 2006 continued the denial. 2. Evidence received since the September 2006 decision relates to an unestablished fact necessary to substantiate the Veteran’s claim for entitlement to service connection for a skin disorder. 3. The evidence is at least in equipoise as to whether the Veteran’s low back disorder is etiologically related to his service-connected right knee disorder. 4. During the January 2020 Board videoconference hearing, prior to the promulgation of the Board’s decision in the appeal, the Veteran withdrew the appeal with respect to the issues of entitlement to service connection for a left knee disorder and right ankle disorder. CONCLUSIONS OF LAW 1. The September 2006 rating decision that denied service connection for eczema is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the September 2006 rating decision is new and material and serves to reopen the Veteran’s claims of entitlement to service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a low back disorder have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for withdrawal of entitlement to service connection for a left knee disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 5. The criteria for withdrawal of entitlement to service connection for a right ankle disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1991 to October 1992, with additional service in the Army National Guard. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. During the hearing, the Veteran agreed to waive initial Agency of Original Jurisdiction (AOJ) review of additional VA treatment records. As the record shows that the Veteran has multiple diagnoses for skin disorders, the claim has been expanded and recharacterized as indicated above. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans’ Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted sufficient to reopen the previously denied claim for service connection for a skin disorder. In a November 1999 rating decision, the Regional Office (RO) initially denied service connection for eczema. The basis of the denial was that the evidence failed to show a disability for which compensation may be established. The Veteran did not appeal that denial or submit new and material evidence within one year of that decision. Therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). The subsequent unappealed rating decision in September 2006 continued the denial for eczema, finding that there was no new and material evidence to reopen the claim. The September 2006 rating decision is the most recent final decision regarding a claim for service connection for a skin disorder. In November 2015 the Veteran submitted his current claim for service connection for a skin disorder. See November 2015 Fully Developed Claim. Such claim has been construed as a request to reopen the previously denied claim for a skin disorder. The evidence received since the September 2006 rating decision includes a March 2016 VA examination report, November 2015 private dermatologist statement, private treatment records, and the January 2020 Board hearing transcript. This evidence relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for a skin disorder. As such, the Veteran’s claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 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). 2. Entitlement to service connection for a low back disorder. The evidence of record shows a current diagnosis for a lumbosacral strain and a positive diagnostic imaging report from October 2017 shows mild disc narrowing at L4-5. See May 2017 VA Examination report. Moreover, the Veteran is service connected for a right knee disorder. Thus, the first and second elements of secondary service connection are met. See 38 C.F.R. § 3.310(a). The remaining issue for consideration is whether a nexus exists between the Veteran’s low back disorder and his service-connected right knee disorder. The Board finds that it does. In pertinent part, in September 2019, the Veteran’s VA physician opined that his sacroiliac joint pain and low lumbar pain was most likely secondary to the altered mechanics from the antalgia associated with his right knee. The physician’s opinion was based on treatment of the Veteran and consideration of his reported history. The Board finds this medical opinion probative and consistent with the other evidence of record, which indicates that the Veteran’s had an antalgic gait from offloading his right knee. See October 2019 VA Treatment records. Thus, there is sufficient evidence to establish an etiological link between the Veteran’s low back disorder and his service-connected right knee disorder. The Board acknowledges the negative nexus opinion provided by the May 2017 VA examiner. Specifically, the examiner opined that the Veteran’s low back disorder was less likely than not proximately due to or a result of the Veteran’s right knee disorder and was less likely than not aggravated beyond its natural progression by the right knee disorder. The examiner explained that the claimed disorder was a separate entity entirely from the right knee disorder and was unrelated to it. Significantly, however, the examiner did not consider and/or discuss whether altered gait mechanics from the right knee disorder could cause/aggravate the Veteran’s low back disorder. As such, the Board affords the May 2017 VA examiner’s opinions very little to no probative value. In light of the foregoing, the Board finds that entitlement to service connection for a low back disorder as secondary to service-connected right knee disorder is warranted. 3. Entitlement to service connection for a left knee disorder and right ankle disorder. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the claimant or by his or her authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204. To that end, at the January 2020 Board videoconference hearing, the Veteran expressly withdrew the claims for entitlement to service connection for a left knee disorder and right ankle disorder. Given the Veteran’s clear intent to withdraw the appeal of these matters, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder is remanded. In March 2016, the Veteran underwent a VA examination to assess the etiology of his skin disorder. The examiner diagnosed the Veteran with dermatitis/eczema and folliculitis of the upper thighs. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran’s preexisting medical condition continued during service, which was typical of the condition. However, the progression was not beyond the normal progression of the disorder and there was no evidence of permanent aggravation beyond normal progression. Significantly, however, the Board finds the March 2016 VA medical opinion insufficient because the examiner’s rationale was conclusory, and she otherwise failed to consider and/or discuss relevant evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In pertinent part, although the examiner generally found that the Veteran’s preexisting condition was not aggravated, she did not otherwise explain the significance, if any, of the multiple skin disorder diagnoses during service. In fact, it appears that the Veteran’s pre-service diagnosis of contact dermatitis was changed to chronic eczema. Furthermore, the examiner did not consider or discuss evidence from the Veteran’s private dermatologist who suggested that the Veteran’s use of chemical suits during active duty service could have worsened his skin disorder. See November 2015 My Dermatologist Treatment records. The examiner also did not consider or discuss the relevant lay statements from the Veteran, his wife, his mother, and his sister, which indicate that the Veteran began having problems with his skin during active duty service. See November 2015 Buddy Statements and November 2015 Statement in Support of Claim. The Board emphasizes that lay persons are competent to establish the presence of observable symptomatology, such as skin changes. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the Board finds that remand is warranted for a new VA examination consistent with the directives herein. The matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran’s skin disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. Based on a review of the evidence of record, the examiner should respond to the following: a) Identify/diagnose all skin disorders that currently exist or have existed during the pendency of the appeal. b) The examiner must identify whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed skin disorder preexisted his active duty service. c) If it is determined that a skin disorder clearly and unmistakably preexisted service, the examiner must state whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting skin disorder was not aggravated beyond the natural progression of the condition during his active duty service? Note that the term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. d) If a skin disorder is determined not to preexist service, the examiner must state whether it is at least as likely as not (i.e., 50 percent or greater probability) that the skin disorder is related to the Veteran’s active duty service. In rendering the above opinions, the VA examiner must specifically consider and discuss: i) the significance, if any, of the change in diagnosis from contact dermatitis in April 1991 to chronic eczema in July 1992, documented in the Veteran’s service treatment records (STRs); ii) the May 1992 STR indicating that the Veteran wished to discontinue service due to exacerbation of his skin condition with field duty; iii) the November 2015 private dermatologist statement; iv) the private treatment records from June 1997, June 1998, July 2002, and August 2008 showing continuous skin problems; and v) the November 2015 buddy statements from the Veteran’s wife, mother and sister. The examiner should note that the Veteran is a nurse and therefore has some medical expertise, and is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the examiner determines that physical examination of the Veteran is necessary in order to provide the requested opinion, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.