Citation Nr: 21025691 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-23 974 DATE: April 28, 2021 ORDER New and material having been received, the claim to reopen the previously denied claim of entitlement to service connection for a skin condition is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a skin condition is granted. FINDINGS OF FACT 1. A June 2011 rating decision denied the Veteran’s claim to reopen his previously denied claim of entitlement to service connection for a skin condition; the Veteran did not appeal the decision and it became final. 2. New evidence added to the record since the June 2011 rating decision is material to the issue of entitlement to service connection for a skin condition. 3. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is related to service. 4. The Veteran’s skin condition is related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 3. The criteria for service connection for a skin condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to October 1990 and from January 1991 to June 1991 with subsequent National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “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. 38 C.F.R. § 3.156(a). 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. Id. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). By way of history, the Veteran’s claim of entitlement to service connection for a skin condition was originally denied in a March 2006 rating decision. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In October 2010, the Veteran submitted a claim to reopen his previously denied claim of entitlement to service connection for a skin condition. In June 2011, the RO denied the claim and the Veteran did not appeal the decision. Consequently, the decision became final based on the evidence of record at that time. In September 2016, the Veteran again submitted a claim to reopen his previously denied claim of entitlement to service connection for a skin condition. The RO denied the claim in January 2017 and the Veteran timely appealed. In August 2019, the Veteran perfected his appeal and thus, the issue is now before the Board. At the time of June 2011 rating decision, the evidence of record consisted of service treatment records, military personnel records, post-service treatment records, a VA examination, and statements from the Veteran. The pertinent evidence received since this time includes an updated April 2019 VA examination and the Veteran’s testimony taken at a Board hearing in April 2021. This evidence was not before adjudicators when the Veteran’s claim was last denied and is not cumulative or redundant of the evidence of record at the time of the June 2011 rating decision. The evidence also relates to an unestablished fact necessary to substantiate the claim of service connection and raises a reasonable possibility of substantiating that claim. Accordingly, the claim to reopen entitlement to service connection for a skin condition is granted. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Court issued a decision adding tinnitus (as an organic disease of the nervous system) to the list of disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for tinnitus is granted. The Veteran is seeking to establish service connection for tinnitus. Specifically, the Veteran contends that his tinnitus is related to hazardous noise exposure during active duty service. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for tinnitus. With regard to a present disability, in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court held that tinnitus is a condition which is capable of lay observation. The Veteran has consistently reported that he experiences tinnitus and as such, the first element of service connection is met. With regard to an in-service injury, the Veteran’s military occupational specialty (MOS) was that of Cannon Crewmember and a Motor Transport Operator during his two periods of active duty. The Department of Defense’s Duty MOS Noise Exposure Listing indicates that these specialties had a “highly probable” likelihood and a “moderate” likelihood of exposure to hazardous noise, respectively. Further, in the April 2021 Board hearing, the Veteran testified that he served in combat and fired guns daily for approximately seven months. Given the foregoing, exposure to acoustic trauma is conceded and the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran’s tinnitus and service, the evidence of record consists of credible statements from the Veteran describing the continuity of his tinnitus and a negative medical opinion regarding the etiology of the Veteran’s hearing loss. In a March 2019 VA examination, a VA examiner opined that the Veteran’s tinnitus was less likely than not related to service. The examiner noted that while there was evidence of noise exposure (i.e., the Veteran’s MOS and his grenade and sharpshooter badges) his audiograms throughout service were normal and without significant threshold shifts. The examiner also noted that the Veteran had denied ear symptoms in a 2006 VA examination. The examiner explained that noise induced hearing loss does not occur months or years after the noise exposure has stopped. In the April 2021 Board hearing, the Veteran testified that he was exposed to hazardous levels of noise through his MOS and his combat duty. He stated that he first noticed buzzing and ringing in his ears three to six months after he returned home from service. The Veteran testified that he has consistently experienced ringing in his ears. The Board finds that the Veteran is competent to report experiencing in-service hazardous noise exposure and resultant auditory pathology in the form of tinnitus. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence in the record to suggest that the Veteran’s statements are not credible. Given the negative March 2019 nexus opinion and the Veteran’s competent and credible statements, the Board resolves doubt in the Veteran’s favor and finds that the third element of service connection has been met. As such, the Board finds that the Veteran’s tinnitus was incurred in service and the claim of entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for a skin condition is granted. The Veteran is seeking to establish service connection for a skin condition. Specifically, the Veteran contends his skin condition is etiologically related to his service during Desert Storm in 1991. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board finds that the Veteran’s skin condition is related to service. With regard to a present disability, treatment records reflect that the Veteran has been diagnosed with atopic dermatitis. As such, the first element of service connection is met. With regard to an in-service injury, service treatment records from the Veteran’s second period of active duty, from January 1991 to June 1991, are not available for review. However, the Veteran has consistently asserted that he developed a rash on his face and body while serving during Operation Desert Storm. In November 2004, the Veteran stated he developed a rash on his head, face, legs, and hands while assigned to a unit in Saudi Arabia for 179 days. He noted that his rash remained uncontrolled. In an August 2019 statement, the Veteran noted he had been discharged from the Army in May 2005 due to his skin condition. Camouflaging his face during training exercises and exposure to outside environmental elements were part of the Veteran’s duties as a Cannon Crewman; however, his skin condition interfered with these duties and the Army decided to medically retire him. The Board notes that in addition to finding the Veteran’s statements competent and credible, his claims file contains corroborating evidence. A February 1992 Report of Medical History upon enlistment in the Army National Guard reflects that the Veteran endorsed a history of skin diseases. A February 2000 treatment record indicates that the Veteran presented with complaints of a rash on the face for one month and lesions on the arms and legs for nine years. A March 2003 National Guard Memorandum determined that the Veteran was found non-deployable on March 12, 2003 due to “severe rash on neck, face, arms, and back due to first go round in Desert Storm.” For these reasons, the Board finds the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran’s skin condition and service, the Board finds this final element has been met. The Veteran was afforded a VA examination for his skin condition in April 2019. The Veteran reported developing spots of atopic dermatitis during Operation Desert Storm in 1991. His condition would flare with sweat and exposure to the sun. The VA examiner confirmed a diagnosis of atopic dermatitis that affected five to 20 percent of the Veteran’s total body area. The examiner opined that it was at least as likely as not that the Veteran’s skin condition began during service. The examiner found that objective documentation of the rash in December 1999 noted that the Veteran reported a rash for the last nine years, which would have resulted in onset of the rash in 1991. The examiner noted that records reflected treatment during the last 19 to 20 years for a rash that would come and go but was mostly present. The examiner determined that the Veteran’s current skin condition was as least as likely as not the same persistent rash that the Veteran had experienced for many years, including during active duty. As the third element of service connection has been met, the Board concludes that the Veteran’s skin condition is etiologically related active service. Therefore, entitlement to service connection for a skin condition is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.