Citation Nr: 21010970 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-36 127A DATE: February 26, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a skin condition is reopened. Service connection for chloracne (claimed as a skin condition), to include as due to in-service exposure to herbicide agents, is granted, subject to the rules and regulations governing payment of monetary awards. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded.   FINDINGS OF FACT 1. The Veteran’s claim for service connection for a skin condition was most recently finally denied in an August 2016 rating decision. 2. The Veteran did not appeal the August 2016 rating decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 3. Evidence received since the final August 2016 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a skin condition. 4. The Veteran served in Vietnam during the Vietnam era. 5. The Veteran has a current diagnosis of chloracne that manifested to a compensable level within a year of his last exposure to herbicide agents. CONCLUSIONS OF LAW 1. The August 2016 rating decision denying service connection for a skin condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a skin condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for chloracne have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2018 and January 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in December 2020. A transcript of the hearing is of record. Lastly, the record reflects that the Veteran was denied entitlement to TDIU in January 2020 and May 2020 rating decisions. Although a separate Notice of Disagreement has not been submitted following the May 2020 rating decision, the issue of TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating). Accordingly, the Board will consider this issue in its decision. 1. New and Material Evidence The Veteran’s claim for service connection for a skin condition was first denied in a November 2006 rating decision as the RO found the evidence did not show the Veteran had a current diagnosis of chloracne that first became manifest to a compensable degree within one year after the Veteran’s last exposure to herbicide agents. The Veteran did not appeal that decision nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In an August 2016 rating decision, the RO declined to reopen the Veteran’s claim for service connection for a skin condition based on a finding that the Veteran had not submitted new and material evidence. The Veteran did not appeal the August 2016 decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, 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 decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all of the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. As the August 2016 rating decision was the last final decision regarding this claim, the Board must review all the evidence submitted since that time to determine whether the Veteran's claim should be reopened and readjudicated on a de novo basis. As such, the Board first turns to the question of whether new evidence has been submitted since the final August 2016 rating decision. Evidence associated with the claims file since the final August 2016 rating decision includes a January 2018 VA examination report which notes a diagnosis of chloracne. This evidence qualifies as new because it was not of record at the time of the August 2016 rating decision and it is not cumulative or redundant of the evidence of record at the time of that decision. In comparing that evidence to that submitted prior to the August 2016 rating decision, the Board finds the new evidence also qualifies as material because it relates to an unestablished fact necessary to substantiate the Veteran’s claim, namely whether the Veteran has a current diagnosis of a condition presumed to be related to exposure to herbicide agents. See Justus, 3 Vet. App. at 512-13. Thus, the Board finds that this new evidence also qualifies as material. The Board therefore finds new and material evidence has been received since the final August 2016 rating decision. Accordingly, the claim is reopened. Shade, 24 Vet. App. at 117.   2. Service connection for chloracne (claimed as a skin condition) is granted. The Veteran contends that he has chloracne as a result of exposure to herbicide agents during military service while stationed in Vietnam. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain disabilities, such as chloracne or other acneform disease consistent with chloracne, service connection may be presumed to be the result of in-service exposure to herbicide agents used in support of the United States and allied military operations in the Republic of Vietnam, e.g., Agent Orange, during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Veterans who served in the Republic of Vietnam are presumed to have been exposed to such herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran’s DD Form 214 shows that he served in Vietnam for 11 months and 26 days during the time period in which exposure to herbicide agents is presumed; thus, his exposure to herbicide agents is presumed. The remaining questions for the Board are whether the Veteran has a current diagnosis of chloracne or other acneform disease consistent with chloracne and, if so, whether the disease became manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during service. After review of the evidence and resolving all reasonable doubt in the Veteran’s favor, the Board concludes the Veteran has a current diagnosis of chloracne that became manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during service. In this regard, the Board notes that the January 2018 VA examiner indicated that the Veteran’s chloracne onset in 1968. In addition, the examiner noted that the Veteran had been treated for his chloracne for many years, beginning after participation in the Vietnam war where he was exposed to herbicide agents. Accordingly, the evidence is at least in equipoise and the benefit of the doubt applies. The Board concludes that the Veteran’s chloracne is presumed to have resulted from exposure to herbicide agents in Vietnam, such presumption is not rebutted, and service connection for chloracne is warranted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The record reflects that the Veteran has a current diagnosis of hypertension, as noted in private treatment records. During the December 2020 Board hearing, the Veteran testified that he began having headaches during service and reported that, when he was diagnosed with hypertension, he was told the headaches were because of his blood pressure. In December 2017, the Veteran underwent a VA examination for his hypertension, but the examiner did not provide an opinion addressing the etiology of his condition. Consequently, the Board finds remand for a medical opinion necessary.   2. Entitlement to a rating in excess of 50 percent for PTSD is remanded. A review of the record reflects that there are Social Security Administration (SSA) records outstanding that potentially contain evidence pertinent to the Veteran’s claim. During the December 2020 Board hearing, the Veteran’s representative reported that the Veteran was receiving Social Security disability benefits since 2008 when he quit working due to an inability to get along with others. However, the Veteran’s claims file does not contain any documentation relating to an application for Social Security disability benefits. As the SSA records may contain statements and medical records regarding the Veteran’s PTSD that would help adjudicate his claim, the Board finds remand to obtain the records is necessary. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD, is remanded. In January 2019, the Veteran underwent a VA examination to determine the etiology of his erectile dysfunction. Following examination of the Veteran, the examiner opined that the Veteran’s erectile dysfunction was not proximately due to or the result of his PTSD. In support of the opinion, the examiner noted that, after age 55, the vast majority of individuals have erectile dysfunction due to natural age-related degeneration of the male organs, noting that 40 percent of males have age-related erectile dysfunction onset in their early 40s with age-related progressions. The examiner also indicated that risk factors included diabetes, hypertension, hyperlipidemia, obesity, cocaine use, tobacco use, alcohol use, natural aging, cardiovascular disease, testosterone deficiency, radical prostatectomy, and some medications. In addition, the examiner noted that the Veteran reported onset of erectile dysfunction symptoms prior to his PTSD. For the reasons that follow, the Board finds this opinion inadequate. First, the examiner did not provide an opinion as to whether the Veteran’s PTSD aggravated his erectile dysfunction. As secondary service connection may be granted for a disability that is proximately caused by or proximately aggravated by a service-connected disability and an opinion on aggravation was not provided, the Board finds the medical opinion incomplete. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Secondly, while the examiner indicated that some medications are a risk factor for developing erectile dysfunction, she did not address any of the Veteran’s prescribed medications, namely those prescribed for his PTSD, and whether the medication could have contributed to his erectile dysfunction. Lastly, the Board notes the examiner indicated that the Veteran reported onset of erectile dysfunction symptoms prior to PTSD as rationale for the opinion. However, this rationale is in direct contradiction of Frost v. Shulkin, 29 Vet. App. 131, 138-39 (2017), where the Court of Appeals for Veterans Claims (Court) held that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis and that the "primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Consequently, the Board finds the opinion inadequate and remand for a new medical opinion necessary. 4. Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, the Veteran and his attorney contend the Veteran is unable to work as a result of symptoms associated with his service-connected PTSD. Thus, the issue of TDIU has been raised in the context of this appeal. However, the issue of entitlement to a TDIU is inextricably intertwined with the claim of entitlement to an increased rating for PTSD being remanded to the Agency of Original Jurisdiction. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the issue of entitlement to TDIU must also be remanded. In addition, the outstanding SSA records may contain information pertinent to this claim.   The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the period from May 2020 to the present. 2. Obtain from the SSA complete copies of all records pertaining to the Veteran’s SSA disability benefits claim, including all medical evidence considered in making the decision, and a copy of the decision granting SSA disability benefits. All attempts to secure these records must be documented in the record, and the Veteran must be notified of the unavailability of any records in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in items (1) and (2), obtain a medical opinion from an appropriate clinician regarding the etiology of the Veteran’s hypertension. The Veteran’s claims file must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinion. Following a review of the Veteran’s claims file, the examiner is asked to provide an opinion as to whether the Veteran’s hypertension is at least as likely as not (a 50 percent or greater probability) related to his active service. In providing the requested opinion, the examiner should address the Veteran’s lay statements, including his testimony at the December 2020 Board hearing that he began experiencing headaches during service and was later told, by the provider who diagnosed him with hypertension, that the headaches were because of his blood pressure. A complete rationale for all opinions must be provided. 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 an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completing the development requested in items (1) and (2), obtain an addendum opinion from a clinician other than the January 2019 VA examiner regarding the Veteran’s erectile dysfunction. The Veteran’s claims file must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinion. Following a review of the Veteran’s claims file, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s erectile dysfunction is proximately due to or caused by his service-connected PTSD, to include any medications taken for treatment of PTSD. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s erectile dysfunction is aggravated (i.e., any worsening beyond natural progression) by his service-connected PTSD, to include any medications taken for treatment of PTSD. A complete rationale for all opinions must be provided. 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 an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.