Citation Nr: 21075680 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-41 376 DATE: December 21, 2021 ORDER New and material evidence has been received, and a claim of service connection for a skin disability, to include dermatitis, is reopened. Entitlement to service connection for a skin disability, to include dermatitis, is denied. FINDINGS OF FACT 1. Evidence received since a June 1998 final rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a skin disability. 2. The Veteran's skin disability is not related to service. CONCLUSIONS OF LAW 1. Evidence received since a final June 1998 rating decision is new and material, and the Veteran's claim of entitlement to service connection for a skin disability is therefore reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. 2. The criteria for service connection for a skin disability are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2021 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a skin disability The Veteran seeks to reopen his claim for service connection for a skin disability. The Veteran's skin disability claim was originally denied in a June 1998 rating decision due to a lack of nexus, i.e. the evidence failed to show the current disability was related to service. The RO specifically noted the claim was not a well-grounded claim noting the service treatment records were missing and treatment 9 years later is too remote to establish service incurrence. The evidence of record at the time of the June 1998 rating decision included the VA treatment records and statements. The Veteran did not timely appeal the skin claim, nor did he submit new and material evidence. Therefore, the June 1998 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final June 1998 rating decision is detailed below. This evidence includes medical records, as follows: a November 2000 treatment record indicating the Veteran has a rash on his face; June 2005 treatment records indicating the Veteran actively takes daily medication for a skin fungus; treatment records for the skin from March 2005 to September 2016; an April 2017 VA examination diagnosing the Veteran with dermatitis and an etiology opinion finding the diagnosed disability is not related to service. As the above-described evidence includes a skin diagnosis and contains an examination report addressing the question of nexus to service, evidence submitted since the previous rating decision addresses an unestablished fact related to an unproven element of the Veteran's claim for service connection for a skin disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both "new," as it has not been previously considered by the VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's service connection claim. Therefore, the claim to reopen is granted. 2. Entitlement to service connection for a skin disability The Veteran claims his dermatitis disability is related to service. Specifically, in a June 2017 statement he alleged in-service work with petroleum, oil, and lubricants resulted in dermatitis. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran's current disability is related to service. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) for May 1976 reflect complaints of skin irritation. In November 1980 the Veteran was diagnosed with seborrheic dermatitis. In December 1983 the Veteran was treated for tinea vascular. In another STR, undated, the Veteran was treated for tinea vascular. In April 1986 he was treated for contact dermatitis after using dye in his hair. In the October 1987 separation examination normal clinical findings were noted for the skin. Post service, a November 2000 treatment record indicated the Veteran has a rash on his face. In June 2005 treatment records it was noted the Veteran actively takes daily medication for a skin fungus. An April 2017 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with dermatitis. The VA examiner opined the dermatitis is less likely than not incurred in or caused by the treatment in-service. It was reasoned, After reviewing medical records dated August 25, 1976, November 6, 1976, December 9, 1983, and April 24, 1986, taking a medical history, and performing physical exam it is less likely than not the Veteran's skin condition is caused by handling of petroleum that occurred while in service. Upon review of records, there are not records in which the Veteran handled petroleum while in service. Even if there were records, chronic dermatitis would not be caused by petroleum alone. There were records mentioning acute episode of contact dermatitis in 1980 and 1986 which resolved. No other records found indicating follow up care or treatment for chronic dermatitis. The separation exam dated 1987 is negative for skin conditions. Therefore, it is less likely than not the Veteran's skin condition is caused by handling of petroleum that occurred while in service. The remaining treatment records reflect treatment for a skin disability, however, there are no other etiology opinions. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. In this regard the Board finds the April 2017 VA examination discussed above, is the most probative evidence of record. The examiner found the disability was not related to service. It is supported by an adequate rationale, noting even if the Veteran had petroleum exposure, chronic dermatitis would not be caused by petroleum alone. There are no contrary medical opinions of record. Therefore, the Board finds the April 2017 VA opinion is the most probative evidence. The Board acknowledges that the evidence established that an event or injury occurred in service. As described above, the STRs document complaints and a diagnosis of seborrheic dermatitis, tinea vascular, and contact dermatitis. However, as noted above there are no other STRs related to the skin, and the service separation examination did not identify any skin complaints or pathology. In fact, the separation examination reflects normal clinical findings for the skin. As such, any in-service skin treatment appears to have been acute and transitory and resolved prior to discharge. Accordingly, service connection for a skin disability is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.