Citation Nr: 21024959 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-45 284 DATE: April 27, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for keratosis and sebaceous cysts is reopened. Entitlement to service connection for keratosis and sebaceous cysts is granted, subject to the laws and regulations governing the payment of VA monetary benefits. REMANDED Entitlement to a compensable rating for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The claim for service connection for a skin disability was denied in a January 1971 rating decision. No new evidence was submitted within a year, and the Veteran did not file an appeal. The January 1971 decision is final. 2. Evidence submitted since the January 1971 decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection a skin disability, and therefore creates a reasonable possibility of substantiating the claim. 3. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. 4. There is probative medical evidence that relates the Veteran’s keratosis and sebaceous cysts to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The January 1971 decision that denied entitlement to service connection for a skin disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 2. New and material evidence has been received since the January 1971 decision and the requirements to reopen the claim for entitlement to service connection for a skin disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for keratosis and sebaceous cysts due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1965 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). However, due to technical difficulties, the Veteran’s testimony was inaudible, and a transcript of the hearing could not be obtained. In light of the error, the Veteran was offered a new hearing. However, in October 2019, the Veteran responded that he did not wish to appear at a hearing. In a January 2021 letter, the Veteran was informed that the VLJ who conducted the August 2019 Board hearing was no longer employed by the Board. In a February 2021 letter, the Veteran responded that he did not wish to appear at another Board hearing. Request to Reopen VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. 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). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that 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 instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. In September 1970, the Veteran filed a service connection claim for a skin disability due to periodic boils. That claim was denied in January 1971. The claim was denied because the Veteran did not appear for an examination. The Veteran was notified of the denial in a January 1971 letter. The Veteran did not file a notice of disagreement (NOD). Thus, the January 1971 decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Veteran filed to reopen his claim in May 2015. In support of his claim, the Veteran submitted new and material evidence; namely, a January 2015 private opinion from Dr. G.P. that links his skin disability to his Agent Orange exposure in service. The Board finds the evidence added to the claims file since the January 1971 decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disability. Accordingly, the petition to reopen that claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. Keratosis and Sebaceous Cysts Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) competent evidence of a current disability; (2) competent evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). A veteran is entitled to the benefit of the doubt standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his skin disability was due to Agent Orange exposure in service. In this case, the evidence of record, specifically a September 2015 private treatment record, shows that the Veteran was diagnosed with seborrheic keratosis and sebaceous cysts. Thus, the first element of service connection has been met. The next issue is whether the Veteran had in-service herbicide agent exposure. The Veteran’s service personnel records reflect that he served in the Republic of Vietnam. See January 1966 Combat Report. The record further shows that he was awarded a combat action ribbon, Vietnam service medal, and Vietnam campaign medal with device. Absent evidence to the contrary, he is presumed to have been exposed to Agent Orange. A presumption of service connection based on the Veteran’s exposure to herbicide agents is not warranted because the Veteran’s keratosis and sebaceous cysts are not on the list of diseases associated with herbicide exposure. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). However, a Veteran may also establish service connection based on exposure to herbicide agents with proof of actual direct causation. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A December 1966 service treatment record documents that the Veteran had a history of boils since June 1965 and that he had a boil at the time on his left dorsal aspect of neck. In the January 2015 private medical opinion, Dr. G.P. noted that the Veteran was a patient of his since early 1970s and that he treated the Veteran on several occasions for skin lesions and abscesses that were surgically removed or drained. Dr. G.P. also noted that the Veteran’s skin lesions come and go but that this condition has been chronic since he returned from service in Vietnam. Dr. G.P. opined that it was his medical opinion that it is highly likely that the Veteran’s skin disability was directly due to his Agent Orange exposure. The evidence weighing against a nexus includes an October 2015 VA medical opinion. The Board does not consider the October 2015 VA medical opinion probative since the VA examiner’s comments reflect that he did not consider the service treatment records. Additionally, the VA examiner did not consider the Veteran’s January 2015 medical opinion from Dr. G.P. in which he noted that the Veteran had sought treatment from him for his skin disability since the early 1970s. Additionally, the October 2015 VA examiner relied upon the absence of contemporaneous medical evidence in forming his opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). With regard to the nexus opinion of record, the record contains a positive nexus opinion from the Veteran’s private physician. While the Board recognizes that the positive opinion does not contain an extensive rationale, this does not render the opinion inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); see Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as “evidence” of whether the disorder was incurred in service). For the foregoing reasons, the Board finds that there is adequate, probative medical evidence that finds that the Veteran’s skin disorder is at least as likely as not related to his exposure to Agent Orange during service. The claim for service connection for keratosis and sebaceous cysts is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND PTSD This issue is remanded to secure private treatment records. VA’s duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). In a March 2016 private letter, a private clinician noted that the Veteran sought mental health counseling with her for over a year and a half and that it was her opinion that the Veteran’s PTSD was severe. However, the record does not contain copies of these counseling session or any other mental health treatment provided to the Veteran from this private clinician at the Catholic Charities of Southeast Michigan, and remand is necessary to attempt to obtain them. (Continued on the next page)   The matters are REMANDED for the following action: Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant psychiatric treatment records. Specifically, attempt to obtain private records from Catholic Charities of Southeast Michigan. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.