Citation Nr: 21075190 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-02 895 DATE: December 17, 2021 ORDER New and material evidence having been received, the claim for service connection for porphyria cutanea tarda (PCT) is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for porphyria cutanea tarda is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for PCT was denied in prior rating decisions dated in July 2002 and August 2012. 2. The Veteran did not appeal the July 2002 or August 2012 rating decisions or submit new and material evidence within one year; therefore, the decisions became final. 3. The evidence received since the August 2012 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for PCT. CONCLUSIONS OF LAW 1. The July 2002 and August 2012 rating decisions regarding the claim for service connection for PCT are final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. The criteria to reopen the claim for service connection for PCT are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1970 to October 1974. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in January 2017 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in August 2021. A copy of the transcript has been associated with the record. The Board sincerely apologizes for any additional delay in rendering a decision for this claim on appeal; however, to ensure the Veteran is afforded every opportunity to substantiate his claim, a remand is required. 1. Whether new and material evidence has been received to reopen the claim for service connection for porphyria cutanea tarda Board decisions and rating decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Generally, a claim that has been denied in an unappealed rating or Board decision may not thereafter be reopened and allowed. 38 C.F.R. § § 20.1100, 20.1103. The exception to this regulation 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 is defined as existing evidence not previously submitted to agency decisionmakers. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the action of the AOJ, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. § 5108 and § 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). At the time of the August 2012 denial of service connection for PCT, the relevant evidence of record included the Veteran's service treatment records (STRs) and private outpatient treatment records. The record does not show that the Veteran appealed the rating decision; thus, the August 2012 rating decision is final. Since the rating decision, the Veteran the Veteran submitted an article in support of his claim and he testified at a Board hearing in August 2021. The evidence is new, as none of it was of record at the time of the prior denial. Furthermore, the evidence is material because it relates to the reason for the prior denial, in that the evidence purports to link the Veteran's PCT to service. As such, the evidence also raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. The Board also presumes the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Justus, 3 Vet. App. at 513. Accordingly, the claims for entitlement to service connection for PCT is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). To this extent only, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for porphyria cutanea tarda is remanded. The Board notes that the Veteran has not been afforded a VA examination for his service connection claim, and finds that an examination and medical opinion are warranted. The Veteran has raised, and the record supports, four possible theories of entitlement, which need to be addressed. First, the Veteran is service connected for a disability presumptively caused by contaminated water at Camp Lejeune. However, the AOJ has not obtained an opinion or considered service connection for PCT on a direct basis, as due to or caused by contaminated water. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1984) (VA must still consider direct service connection, even if service-connection cannot be granted on a presumptive basis). Second, and similarly, the Veteran's military personnel records indicate that he served in the contiguous waters of Vietnam. Therefore, the AOJ should obtain an opinion regarding whether the Veteran's PCT is caused by or due to presumed herbicide exposure. Third, the Veteran testified, and his service treatment records indicate, that he experienced rashes and itching during service. The Veteran submitted an article in support of his claim purporting that rashes and itching are symptoms of PCT. Therefore, an opinion should be obtained whether the Veteran's PCT had its onset during service. Finally, the Veteran testified to literature demonstrating a connection between the liver and PCT, and the August 2021 articles submitted indicate liver involvement, and the potential for liver cancer, in PCT. Therefore, a claim of secondary service connection is reasonably raised by the record and must be addressed on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination from an appropriate VA examiner to determine the nature and etiology of the Veteran's porphyria cutanea tarda. The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. If an in-person examination is not feasible, an examination by other means should be afforded. All necessary tests should be conducted. The examiner should respond to the inquiries below: (a.) The examiner should directly address the following evidence and contentions: (1) the STRs indicating rashes in September 1970 and itching on the hands in June 1972; (2) the Veteran's testimony that he noticed rashes in service and after separation after sun exposure, which were intermittent, but not constant; (3) the Veteran's testimony that he was not diagnosed with PCT until he moved to Florida and had significant sun exposure and developed blisters, but it had its onset before, though he did not seek treatment; and (4) the two articles submitted in August 2021 indicating rashes and symptoms of PCT, and the involvement of the liver in the disease process. --The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's PCT is the result of, caused by, or related to, contaminated water at Camp Lejeune. --The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's PCT is the result of, caused by, or related to, presumed exposure to herbicide agents. --The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's PCT is etiologically related to or incurred in active duty service, including the annotations of rashes and itching in the STRs. --The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's PCT is proximately due to, the result of, caused by, or aggravated by the Veteran's service-connected liver cancer. In addressing secondary service connection, the examiner should note that there is not a temporal requirement for service connection on a secondary basis nor a permanency requirement. (Continued on the next page) A complete rationale must be provided for all expressed opinions. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.