Citation Nr: 21062314 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-01 558 DATE: October 7, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a skin disorder is granted. Service connection for chronic dermatitis is granted. FINDINGS OF FACT 1. In a final rating decision issued in June 2012, the Agency of Original Jurisdiction (AOJ) denied service connection for a skin disorder. 2. Evidence added to the record since the final June 2012 rating decision and associated June 2014 statement of the case is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a skin disorder. 3. Resolving all doubt in the Veteran's favor, his currently diagnosed chronic dermatitis is related to his military service. CONCLUSIONS OF LAW 1. The June 2012 rating decision that denied service connection for a skin disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for chronic dermatitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1971, to include service in the Republic of Vietnam. He is the recipient of numerous awards and decorations, to include the Combat Infantry Badge and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2017 by a Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 90 days for the submission of additional evidence, which was received in May 2021. The Board notes that, in May 2021, a VA Form 21-22a (Appointment of Individual as Claimant's Representative) in favor of Ralph Bratch, an attorney, was received. However, as the Veteran's appeal was most recently certified to the Board and docketed in January 2020, and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, The American Legion, a veterans service organization, retains representation of the Veteran in his appeal. 38 C.F.R. § 20.1305(a), (b); Perez v. Shinseki, 25 Vet. App. 190 (2011) (the Board did not err in denying claimant's request for change of representative, where request was submitted more than 90 days after his appeal was certified to the Board and no good cause was shown for the delay). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a skin disorder. By way of background, VA received the Veteran's original claim for service connection for a skin disorder in October 2011. In an April 2012 rating decision, the AOJ considered his service treatment records (STRs), post-service VA treatment records, and January 2012 and February 2012 VA examinations, and found that, while his STRs reflected complaints, treatment, or diagnosis similar to that claimed, the evidence did not demonstrate a currently diagnosed disability or a link between such claimed disorder and his military service. Following receipt of an April 2012 statement from the Veteran, a June 2012 rating decision, which considered the previously mentioned evidence as well as such newly received statement, confirmed and continued the prior denial. In this regard, the AOJ observed that, while the current evidence discussed the symptoms of his claimed skin disorder, his STRs, to include his June 1971 separation examination, did not reflect complaints, treatment, or diagnosis of such disorder. Later that month, the Veteran was advised of the decision and of his appellate rights. In March 2013, he entered a notice of disagreement as to such denial and a statement of the case, which considered additional private and VA treatment records and a June 2014 VA opinion, was issued in June 2014; however, he did not file a timely substantive appeal. In this regard, the June 2014 statement of the case acknowledged the Veteran's in-service exposure to herbicide agents coincident with his service in Vietnam from December 1969 to November 1970 and his complaints of a rash diagnosed as rubella in service in January 1971, as well as post-service treatment for a rash and dermatitis, but found that the probative evidence did not demonstrate that his current skin disorder is related to his military service. Specifically, the AOJ acknowledged an October 2011 opinion from the Veteran's VA physician in which he indicated that the Veteran's current rash was related to his military service, but found that such lacked a rationale. Rather, the AOJ found a June 2014 VA opinion that his current skin rash/dermatitis was less likely than not related to his military service highly probative. In this regard, the examiner noted that the Veteran's STRs reflected treatment for a rash in connection with additional symptoms, which was diagnosed as rubella, in January 1971, and observed that the remainder of his STRs and contemporaneous post-service treatment records failed to show treatment for a rash on a recurring basis. He further indicated that the Veteran's rash associated with rubella resolved without residuals, and his current skin rash/dermatitis are different and unrelated conditions caused by different mechanisms with no relationship to each other. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the June 2012 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the June 2012 rating decision and associated June 2014 statement of the case includes additional private and VA treatment records, an April 2017 VA examination, an April 2019 letter from a fellow service member, an April 2021 statement from the Veteran's treating VA physician, and the Veteran's lay statements, to include letters sent during his time in Vietnam and his testimony at the March 2021 Board hearing. In this regard, in letters sent from the Veteran to his parents while he was stationed in Vietnam, to include in January 1970, reflects his reports of experiencing a rash, to include on the inside of both arms. Also, in April 2019, a fellow service member, M.L., reported that he was the medic for the Veteran's unit in Vietnam and recalled treating the Veteran for a rash, which he indicated he likely identified as jungle rot. Furthermore, while the April 2017 VA examiner indicated that he could not offer an opinion as to the etiology of the Veteran's skin disorder, diagnosed as eczema, without resorting to mere speculation as the rash had a slightly dissimilar description, he observed that the Veteran reported that such was the same as the one he experienced in service, and, in April 2021, the Veteran's treating VA physician opined that his current skin disorder, diagnosed as chronic dermatitis, is related to his military service. Thus, as the Veteran's claim was previously denied on the basis that his STRs failed to show relevant complaints, treatment, or diagnoses and the probative evidence did not demonstrate that his current skin disorder was related to his military service, and the newly received evidence addresses both bases, the Board finds that the evidence added to the record since the final June 2012 rating decision and associated June 2014 statement of the case is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a skin disorder. Thus, as new and material evidence has been received, the Veteran's claim for service connection for a skin disorder is reopened. 2. Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. At his March 2021 Board hearing and in documents of record, the Veteran contends that his current skin disorder had its onset in service, to include as a result of exposure to herbicide agents, and has reoccurred intermittently since such time. Thus, he claims that service connection for such disorder is warranted. In this regard, the record reflects that the Veteran served in Vietnam from December 1969 to November 1970, and his STRs show that, in January 1971, he complained of an upset stomach, fever, sore throat, conjunctivitis, post-cervical adenopathy, and rash, which was diagnosed as rubella. While the remainder of his STRs are negative for any relevant complaints, treatment, or diagnoses, letters sent from the Veteran to his parents while he was stationed in Vietnam, to include in January 1970, reflects his reports of experiencing a rash, to include on the inside of both arms. Additionally, in April 2019, a fellow service member, M.L., reported that he was the medic for the Veteran's unit in Vietnam and recalled treating the Veteran for a rash, which he indicated he likely identified as jungle rot. Post-service treatment records reflect treatment for a rash in April 2002 and May 2002, which was diagnosed as contact dermatitis. Additionally, in July 2002, the Veteran reported that his rash continued to reoccur and subsequent treatment records dated in April 2010, March 2012, September 2012, and February 2017 reflect his complaints of an itchy rash. The latter record reflects an assessment of intermittent erythematous rash and it was noted that the Veteran reported having the same lesions in the past, which started while he was in Vietnam. In this regard, the physician noted that, upon review of his STRs, letters, and current condition, it was probable that his current chronic skin rash may be related to his military service. Additionally, in October 2011, the Veteran's treating VA physician noted that the Veteran's STRs reflected treatment for a rash in January 1971 and, thus, it was as likely as not that his current rash was related to his military service. However, he did not offer a rationale for such opinion and, furthermore, as noted previously, the June 2014 VA examiner provided a well-supported opinion that his current skin rash/dermatitis was less likely than not related to his in-service treatment for rubella as such resolved without residuals and his current skin rash/dermatitis were different and unrelated conditions caused by different mechanisms with no relationship to each other. Nonetheless, at an April 2017 VA examination, the examiner noted that the Veteran had a pruritic rash on his arms as described in a letter to his parents while in Vietnam and diagnosed eczema, but indicated that he could not offer an opinion as to the etiology of such skin disorder without resorting to mere speculation as the rash had a slightly dissimilar description. However, he observed that the Veteran reported that such was the same as the one he experienced in service. Furthermore, in April 2021, the Veteran's treating VA physician opined that his current skin disorder, diagnosed as chronic dermatitis, is related to his military service. In support thereof, he noted that he reviewed the letters sent from the Veteran to his parents while he was stationed in Vietnam detailing a rash, M.L.'s letter reflecting treatment for a rash in Vietnam, and his in-service exposure to herbicide agents, and found that it was highly likely that his current chronic skin disorder is directly related to his military service. Thus, while the highly probative June 2014 VA opinion reflects that the Veteran's current skin disorder is unrelated to his in-service treatment for a rash associated with rubella, the Board finds that the evidence is in relative equipoise as to whether such disorder is otherwise related to his military service. In this regard, while the April 2017 VA examiner indicated that he was unable to offer an opinion without resorting to mere speculation, he noted the Veteran's report that such was the same as he had experienced in service. Additionally, while lacking a rationale beyond a recitation of the relevant facts, the Veteran's treating VA physician found that his chronic dermatitis was related to his military service. Moreover, the Veteran, who is competent to describe the nature and onset of a rash, has consistently reported that such had its onset during his service in Vietnam, which is supported by his contemporaneous letters to his parents and M.L.'s statement, and has reoccurred since such time, which is supported by his post-service treatment records. Further, the Board has no reason to doubt his credibility in such regard. Thus, the Board resolves all doubt in the Veteran's favor and finds that his currently diagnosed chronic dermatitis is related to his military service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.