Citation Nr: 20021763 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-33 989A DATE: March 26, 2020 ORDER The appeal as to the claim for an increased (compensable) rating for hemorrhoids is dismissed. As new and material evidence to reopen a claim of entitlement to service connection for skin rash has been received, to this limited extent, the appeal is granted. REMANDED The claim of entitlement to service connection, for skin rash, on the merits, is remanded. FINDINGS OF FACT 1. In October 2019, prior to the promulgation of a decision in the appeal, the Veteran indicated in correspondence and during his Board hearing that his appeal as to the claim for a higher rating for hemorrhoids be withdrawn. 2. A June 1997 rating decision denied service connection for skin rash; although notified of the denial in a June 1997 letter, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. New evidence associated with the claims file since the June 1997 denial relates to an unestablished fact necessary to substantiate the claim for service connection for skin rash and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal as to the claim for a higher rating for hemorrhoids are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The June 1997 rating decision which denied service connection for skin rash is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. As additional evidence received since the June 1997 rating decision is new and material, the criteria for reopening the claim for service connection for skin rash are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to October 1970, including service in the Republic of Vietnam. This appeal to the Board of Veterans’ Appeals (Board) arose from April 2011 and December 2011 rating decisions in which the Department of Veterans Affairs (VA) Regional Office (RO) denied an increased (compensable) rating hemorrhoid, as well as denied service connection for skin rash. The Veteran timely disagreed with the denials, and this appeal ensued. In October 2019, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. At that time, the undersigned VLJ ordered the record held open for 30 days for the submission of additional evidence., In November 2019, private medical evidence detailing the Veteran’s skin rash medication was received. Also, as discussed in further detail below, during that hearing, the Veteran expressed his desire to withdraw his increased rating claim from appellate consideration. 1. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2019, the Veteran submitted correspondence requesting that his appeal as to the claim for an increased rating for hemorrhoids be withdrawn. Likewise, during the October 2019 Board hearing, the Veteran expressed his desire to withdraw from appeal his increased rating claim for hemorrhoids. The Veteran’s desire to withdraw his appeal as to that claim is recorded in the hearing transcript. Accordingly, the Board does not have jurisdiction to review the claim, and it must be dismissed. 2. Request to Reopen Under legal authority in effect at the time of the prior denial of the Veteran’s claim for service connection for skin rash and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran’s initial claim for service connection for skin rash was denied in a June 1997 rating decision. The pertinent evidence then of record consisted of his service treatment and personnel records (which document no complaint, finding, or diagnosis of skin rash); and private treatment records from the Veteran’s physician, Dr. D.L. Reeve, dated from May 1990 to December 1996 (which document no treatment or findings relating to a skin condition). The RO denied the claim on the basis that there was no medical evidence that the Veteran’s current skin rash either occurred in or was caused by service. Although notified of the denial in a June 1997 letter (which neither the Veteran nor his representative has alleged that the Veteran did not receive), the Veteran did not appeal the denial. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial, and no additional service records, warranting reconsideration of the claim, have been received. See 38 C.F.R. § 3.156(b), (c). Therefore, the RO’s June 1997 denial of the claim is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Veteran filed his current request to reopen his previously denied claim for service connection for skin rash in September 2010. Regarding requests to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the June 1997 rating decision. Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Pertinent evidence added to the claims file since the June 1997 rating decision includes VA treatment records, private treatment records, lay statements from the Veteran’s friends and the Veteran’s oral and written assertions. Collectively, the statements from the Veteran’s friends indicate that they noticed the Veteran had a rash all over his face when returned home from service, and Veteran testified that he began experiencing skin rash during service. These statements suggest a nexus between current skin problems and service. No such evidence was previously of record. The Board finds that the above-described evidence, when considered in light of the evidence previously of record, provides a basis for reopening the previously denied claim. This evidence is “new” in that it was not before the RO at the time of the June 1997 denial, and is not duplicative or cumulative of the evidence previously of record. Moreover, this evidence is “material” in that it relates to unestablished facts necessary to substantiate the claim for service connection—namely, whether the Veteran’s current skin rash disability had its onset during service or is otherwise medically related to service. Thus, under the liberal standard of Shade, and presuming the credibility of evidence, the additionally received evidence provides a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for skin rash are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the remaining claim for service connection for skin rash , on the merits, is warranted. The Veteran contends that his current skin rash is related to service. He specifically alleges that he developed the skin rash on his face due to exposure to herbicide agents, including Agent Orange, during active duty service in Vietnam. The Veteran underwent VA examination in August 2016. However, the VA examiner appears to have based his etiology opinion solely on the lack of an in-service diagnosis, without specifically addressing the lay statements of record as to onset and continuity of the Veteran’s his skin rash symptoms, which is impermissible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran’s report of in-service injury and instead relied on the absence of evidence in a veteran’s service medical records to provide a negative opinion). As such, the Board finds that the medical opinion evidence of record is inadequate to resolve the claim, and that further medical etiology opinion—based on full consideration of the Veteran’s documented medical history and all lay assertions, and supported by complete, clearly-stated rationale—is needed to resolve the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes action to provide an examination or obtain a medical opinion, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). The Board also notes that the Veteran served in Vietnam during the Vietnam era, and thus his exposure to herbicide agents during such service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii). Notably, while chloracne or other acneform disease consistent with chloracne are skin disabilities in on the list of diseases recognized by the VA Secretary as etiologically related to presumed herbicide exposure—and for which presumptive service connection, based on such exposure, is available (see 38 C.F.R. § 3.309(e)), the Veteran has not been diagnosed with any such disorder, and skin rash, per se, is not on the list. However, the Board’s inquiry is not limited to presumptive service connection, as the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). Therefore, the etiology opinion sought on remand should also o address the relationship, if any, between the Veteran’s current skin rash disability and service, to include, but not limited to, his presumed exposure to herbicide agents during service.. Prior to accomplishing action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, regarding any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran’s response has expired, arrange to obtain, from an appropriate physician, an addendum opinion addressing the etiology of his diagnosed skin rash disability, based on claims file review (if possible). Only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect consideration of the Veteran’s documented medical history and assertions. Following a review of all relevant evidence of record, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current skin rash had its onset in service or is otherwise etiologically related to service, to include, but not limited to, his presumed exposure to herbicides therein. In rendering the requested opinion, the physician must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s statements that he began experiencing skin rash n service, and the statements of his friends indicating that he had a skin rash when he came home from service.. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and his friends are competent to report their observations of the Veteran; such lay reports must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 4. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claim on appeal, on the merits, considering all pertinent evidence (to include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.