Citation Nr: 21028444 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-18 950A DATE: May 11, 2021 ORDER New and material evidence having been received, the claim of service connection for a skin disability, to include as due to herbicide agent exposure, is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a skin disability, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. Service connection for a skin disability was denied in a March 2011 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter, nor have new, relevant service department records been associated with the file since. 2. The evidence received since the March 2011 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disability. CONCLUSIONS OF LAW 1. The March 2011 rating decision denying service connection for a skin disability is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2011). 2. The evidence received since the March 2011 rating decision is new and material as to the claim for service connection for a skin disability, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board denied service connection for bilateral hearing loss and reopening of the claim for service connection for a skin disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated August 2020, the Court vacated the Board's decision and remanded the case. In essence, the Court stated that the April 2015 VA examiner's negative nexus opinion, relied upon by the Board to deny the hearing loss claim, was inadequate for adjudication purposes. Furthermore, the Court stated that the Board failed to consider new evidence received in June 2011 in the context of 38 C.F.R. §§ 3.156(b) and (c). New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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 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, to include by triggering the Secretary's duty to assist. Id. at 118. An exception to the "new and material evidence" requirement arises if VA receives relevant official service department records that existed and had not been associated with the claims file when it first decided the claim. 38 C.F.R. § 3.156(c); see Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). When relevant service records are newly associated with the file, VA must reconsider the previously denied claim de novo. 38 C.F.R. § 3.156(c). The term "relevant" means noncumulative and pertinent to the matter at issue in the case. Kisor, 969 F.3d 1333. Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not "relevant" within the meaning of 38 C.F.R. § 3.156(c)(1). Id. The Veteran initially filed a claim for a skin disorder (claimed as fungus infection) in October 1977. On his applicable for benefits, the Veteran asserted that he was treated for the disability at the Kansas City VA Medical Center. In a December 1977 letter, the RO informed the Veteran that records from the Kansas City VA Medical Center could not be obtained, and therefore it was necessary for him to submit the records if possible. The letter continued on to state that medical evidence was required to adjudicate the claim, and if it was not received within one year of the letter no benefits would be payable. The Veteran never responded, and the RO took no further action on the claim. 38 C.F.R. § 3.158 (1978). In March 2010 the Veteran filed another claim for a skin disability. In a March 2011 rating decision, the RO first stated that as the Veteran's prior claim was never formally decided, his March 2010 claim was being treated as a new claim for benefits as opposed to a claim to reopen a previously denied claim. The RO then denied service connection for the skin disability, noting that VA treatment records showed a diagnosis of a skin rash but that service treatment records were negative for complaints, treatment, or diagnosis of a skin or fungal condition. In addition, the RO stated that there was no evidence of a skin condition within one year of date of last exposure to herbicides. The Veteran was notified of the March 2011 rating decision and of his appellate rights, but he did not appeal the determination. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Additional service personnel records were received in June 2011 showing that he was assigned to the Republic of Vietnam from December 1967 to December 1968 and participated in two campaigns; however, those records were not material because it was not disputed that he served in Vietnam and was exposed to tactical herbicides. Indeed, exposure was specifically conceded in the March 2011 rating decision. As discussed further below in the context of 38 C.F.R. § 3.156(c), those records were cumulative of other evidence. Therefore, the March 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. At the time of the March 2011 rating decision, the evidence of record included the Veteran's service treatment records, post-service medical records, and lay statements from the Veteran and his wife. The evidence received since the March 2011 rating decision includes private treatment records and lay statements from the Veteran. The lay statements describe symptoms in service and treatment with a topical cream. The Veteran has further asserted that he was told by Leavenworth Medical Center that his skin disorder is related to herbicide agent exposure. See May 2015 Notice of Disagreement (NOD); May 2016 VA Form 9 substantive appeal. The Veteran is competent to report statements told to him by a medical professional, and for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim (current disability and nexus with service), and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for a skin disability is reopened. The Board notes that the Veteran has also argued that new and material evidence is not required to reopen his claim, based on the submission of new, relevant service department records since the March 2011 rating decision. However, while additional service department records, which existed at the time of the March 2011 decision, have been associated with the file, the Board finds that they are not relevant, and therefore de novo review of the current claim is not warranted. Section 3.156 provides that "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1). In Kisor v. Wilkie, the Federal Circuit held that under 38 C.F.R. § 3.156(c)(1), in order to be "relevant," the service record at issue must speak to a matter in issue, in other words, a matter in dispute. 969 F.3d 1333. In that case, a Veteran was initially denied service connection for posttraumatic stress disorder (PTSD) because although service records established that he had suffered an in-service combat stressor, there was no current disability. Many years later, additional service department records were received which again confirmed that he participated in combat. Receipt of these records prompted the RO to obtain a new VA examination where the examiner provided a current diagnosis of PTSD and which led to an award of service connection. The Federal Circuit clarified that the subsequently received service department records were not "relevant" within the meaning of 38 C.F.R. § 3.156(c) because the additional records did not speak to the basis of VA's prior decision: the lack of a current disability. There was no dispute as to whether the Veteran suffered an in-service combat stressor since this had already been established at the time of the initial denial of service connection. Therefore, reconsideration was not warranted and an earlier effective date pursuant to 38 C.F.R. § 3.156(c) could not be assigned. The facts in this case are similar to those in Kisor. Here, it was never in dispute that the Veteran had served in Vietnam or that he had been exposed to herbicide agents. The October 2010 VA examination for PTSD noted service in Vietnam from December 1967 to December 1968. It was also noted that although his military occupational specialty (MOS) was a cook in an infantry unit, he was on convoys and came under enemy fire. In March 2011, the RO denied the claim based on lack of treatment for a skin or fungal disorder during service or within one year after his date of last exposure to herbicides, thus clearly and specifically conceding herbicide agent exposure. In the same March 2011 rating decision Vietnam service was further conceded in denying the Veteran's claim for service connection for hearing loss and in denying his claim for service connection for PTSD. See March 2011 rating decision. Therefore, the service department records received in June 2011, including a record of assignments showing service in Vietnam from December 1967 to December 1968 and participation in two campaigns, are not relevant as they do not pertain to a matter that is in dispute. Kisor. Wilkie, 969 F.3d at 134143. The Veteran was not denied service connection for a skin disorder based on failure to establish Vietnam service or exposure to herbicide agents, with those facts being specifically conceded in the March 2011 rating decision. The Veteran has argued that the DA Form 20 added to the claims file in June 2011 was the first affirmative service department verification of his Vietnam service. However, the record had already established service in Vietnam and the fact was not in dispute. As such, the June 2011 service department records were not relevant. The Veteran has further argued that the new personnel records are relevant because they provided specific details about his Vietnam service that the DD 214 did not. That argument was made in Kisor and rejected. The Federal Circuit held that although the newly-received service personnel records "provide further support to [the Veteran's] prior statements that he participated in Operation Harvest Moon and indeed could provide 'credible supporting evidence that the claimed in-service stressor occurred,' these additional service records do not show that [the Veteran] had a medical diagnosis of PTSD as of 1983." Kisor, 969 F.3d at 1341. In sum, the military personnel records submitted in June 2011 are not "relevant" as required by 38 C.F.R. § 3.156(c) and do not warrant reconsideration of the previously denied claim. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss. An April 2015 VA examination showed bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. The examiner opined that his hearing loss was less likely than not related to service, explaining that he had normal auditory thresholds at separation and a standard threshold shift did not occur for either ear when comparing entrance and separation evaluations. However, there is no entrance audiogram in the service treatment records. Therefore, the examiner relied on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an incomplete or inaccurate factual premise has no probative value). Furthermore, the VA examiner did not indicate whether she converted any audiometric results using American Standards Association (ASA) standards to International Standards Organization-American National Standards Institute (ISO-ANSI) standards to facilitate data comparison. In this regard, the Board notes that the Veteran was provided a separation examination in June 1969. In March 2017, the Board revised its policy regarding service connection claims for hearing loss for Vietnam-era veterans. When interpreting audiometric data from service treatment records, the Board has historically considered that service departments changed from using ASA standards to ISO-ANSI standards as of November 1967. The revised policy provides that, for service department audiograms conducted between January 1, 1967, and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards. For these reasons, the Board finds that an additional VA medical opinion is needed. Entitlement to service connection for a skin disability. The Veteran has contended that his skin disability is due to exposure to herbicide agents during his service in Vietnam. The Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 C.F.R. § 3.307(a)(6). The Veteran's post-service medical records also show that he has a current diagnosis of skin cancer. A shave biopsy in December 2020 revealed squamous cell carcinoma in-situ of the right forearm and melanoma in-situ of the right upper arm. See December 2020 private treatment records. Although skin cancer is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Board notes that the Veteran has not yet been afforded a VA examination in connection with his claim. Therefore, the Board finds that a VA examination and medical opinion are necessary to address this theory of entitlement. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for hearing loss and a skin disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After the foregoing development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the bilateral hearing loss is causally related to the Veteran's active service, to include hazardous noise exposure? The examiner should explain the significance, if any, of any threshold shift or lack thereof in service. In making this determination, he or she should convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison. (A revised policy provides that, for service department audiograms conducted between January 1, 1967, and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any skin disability that may be present. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the skin disability is causally related to the Veteran's active service, to include exposure to herbicide agents? A clear rationale for all opinions should be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.