Citation Nr: 21029753 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-05 830 DATE: May 14, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a skin disorder. REMANDED Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. Service connection for a skin disorder was denied in an unappealed July 2012 rating decision. 2. Evidence received since the July 2012 rating decision is new and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for a skin disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1970 to December 1971. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. 1. New and material evidence has been received to reopen a claim of service connection for a skin disorder The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. New and material evidence must raise a reasonable possibility of substantiating the claim. Id. The Veteran's claim of service connection for a skin disorder was denied in a July 2012 rating decision on the basis that the evidence did not show that a current skin disorder was related to service. The Veteran did not submit a notice of disagreement and the July 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and Material evidence was not received prior to the expiration of the appeal period. 38 C.F.R. § 3.156 (b). Since the final denial in 2012, the Veteran has submitted a medical opinion dated in October 2019 from the Veteran's treating dermatologist, M.R.P., M.D., who opined that it was "highly likely there is a relationship of his chronic folliculitis arid abscesses to Agent Orange since it is a well-known cause of chloracne." As Dr. P.'s opinion was not of record or considered in the prior denial, it is new. As it provides evidence of a nexus between the Veteran's service and a current skin disorder, it is material. New and material evidence having been received, the request to reopen the claim of service connection for a skin disorder is granted. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder is remanded. The Board has reopened the claim of service connection for a skin disorder based on the submission of new and material evidence. The RO did not reopen the claim or consider it on the merits. At this point, a decision on the merits would prejudice the Veteran. Accordingly, the claim of service connection for a skin disorder is remanded for initial consideration by the AOJ. Hickson v. Shinseki, 23 Vet. App. 394 (2010). A medical nexus opinion would also be helpful in this case. The Veteran contends that he has various skin conditions that he believes are related to his exposure to Agent Orange during service in the Korean demilitarized zone (DMZ) in the early 1970s. The Veteran is presumed to have had exposure to Agent Orange or other herbicide agents due to his service in the Korean DMZ during the qualifying time period. A VA examiner in June 2016 found that the Veteran did not have a skin disorder at that time and the examiner did not provide a nexus opinion. VA must ensure that an opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Records from Dr. P. that were in the claims file at the time of the VA examination showed a diagnosis of seborrheic keratosis. Subsequent medical records shows treatment for multiple skin conditions, including non-melanoma skin cancers, actinic keratoses, irritated skin tags, tinea corporis, folliculitis, and abscesses. Although the file includes a favorable private medical nexus opinion from Dr. P., the opinion is not a sufficient basis upon which to grant the claim as it is somewhat speculative and does not reflect consideration of the full record. That being said, the Board finds that a medical opinion that considers the entire relevant history and addresses the etiology of all of the Veteran's skin conditions present currently or proximate to the claims period would be helpful in adjudicating this claim. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate medical professional to determine the nature and etiology of any current chronic skin disorder/condition(s). The claims file and copy of this remand must be reviewed by the examiner. a) Provide an opinion as to whether it is at least as likely as not that any current skin disorder/condition had onset during, or is otherwise related to, service, to include Agent Orange exposure. b) Regardless of whether a current skin disorder/condition is found on examination, provide an opinion as to whether it is at least as likely as not that any skin disorder/condition noted during or proximate to the appeal period, to include non-melanoma skin cancers, actinic keratoses, irritated skin tags, tinea corporis, folliculitis, and abscesses, had onset during, or is otherwise related to, service, to include Agent Orange exposure The examiner must provide a fully-explained rationale for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.