Citation Nr: 21030397 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-44 058 DATE: May 18, 2021 ORDER The appeal seeking an increased rating for a burn scar of the nose is dismissed. New and material evidence having been received, the claim for entitlement to service connection for a skin disability is reopened. Entitlement to service connection for a skin disability is granted. FINDINGS OF FACT 1. During the February 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences requested that his appeal seeking an increased rating for a burn scar of the nose be withdrawn. 2. An unappealed November 2002 rating decision is the last final decision that denied service connection for chloracne. 3. The evidence received since the November 2002 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disability. 4. The evidence is in equipoise as to whether the Veteran's currently diagnosed skin disability had its onset during his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking a compensable rating for a burn scar of the nose are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The November 2002 rating decision denying service connection for chloracne is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103. 3. The criteria to reopen the service connection claim for a skin disability are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(a). 4. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a skin disability are met. 39 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1968 to December 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). After reviewing the contentions and evidence of record, and in order to contemplate the Veteran's skin symptoms, however diagnosed, the Board has recharacterized the Veteran's claim as one for a skin disability, as opposed to separate claims for service connection for chloracne and psoriasis vulgaris. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. During the February 2021 hearing, the Veteran and his representative argued that the Board should take jurisdiction of the issue of an earlier effective date for the award of service connection for posttraumatic stress disorder (PTSD), despite the lack of a timely VA Form 9 as to the November 2017 Statement of the Case (SOC). Notably, the United States Court of Appeals for Veterans Claims (Court) has held that timely filing of a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). However, in June 2019, the Veteran filed a VA Form 20-0995 Supplemental Claim Application including the issue of an earlier effective date for the award of service connection for PTSD. In a November 2019 rating decision issued under the modernized appeals system, the RO denied entitlement to an earlier effective date for the award of service connection for PTSD. Thus, even if the Board were to determine that it (at one point) had jurisdiction over the issue pursuant to Percy, given the RO's subsequent adjudication of the issue under the modernized appeals system, as a matter of law, the issue is no longer before the Board under the legacy appeals process. For these reasons, the Board cannot take jurisdiction over the issue of an earlier effective date for the award of service connection for PTSD in this appeal. As an aside, the Board notes that the Veteran has another appeal pending under the modernized appeals system regarding entitlement to service connection for squamous and basal cell carcinoma. These issues will be addressed in a separate decision. The Board observes that additional lay and medical evidence has been received since the RO's adjudication in a July 2017 SOC, without a waiver of initial RO adjudication. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). However, since the Board is granting the full benefit sought herein, there is no prejudice to the Veteran in proceeding with this adjudication. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. The appeal seeking a compensable rating for a burn scar of the nose is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In DeLisio v. Shinseki, 25 Vet. App. 45 (2011), the Federal Circuit Court clarified what constitutes an effective verbal withdrawal of an appeal. Specifically, a verbal withdrawal of an appeal at a hearing is effective "only where it is (1) 'explicit'; (2) 'unambiguous'; and (3) 'done with a full understanding of the consequences of such action on the part of the [veteran].'" See Acree v. O'Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). At the beginning of the February 2021 hearing, the undersigned VLJ stated, "Prior to going on record, we discussed the issues that are currently before us today. I have listed increased rating for a burn scar on the nose. We will get testimony as to the fact that the Veteran would like to withdraw that claim." Later in the hearing, the undersigned VLJ asked the Veteran whether it was still his intention to withdraw his claim for an increased rating for a burn scar on the nose. The Veteran responded, "Yeah, I don't know how it got to be nose." The undersigned VLJ then explained, "I just want to let you know that once I dismiss it, I will no longer have jurisdiction of that increased rating claim. So, if you'd like to pursue the nose scar in the future, you'll have to file a new claim. Okay?" The Veteran responded in the affirmative, "Um-hum." The Board finds that the Veteran's withdrawal of his claim for an increased rating for a burn scar of the nose was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. As such, the Veteran's verbal withdrawal of the claim during the hearing meets all three prongs of the DeLisio standard and is therefore an effective withdrawal. As the Veteran withdrew his appeal seeking an increased rating for a burn scar of the nose, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. 2. Whether new and material evidence has been received to reopen a claim of service connection for a skin disability Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a "low threshold" standard is applied. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this matter, the Veteran's claim for service connection for chloracne was most recently denied by the RO in a November 2002 rating decision because the medical evidence did not show that the condition was related to service or manifested within the one-year presumptive period following separation from service. The Veteran did not appeal the November 2002 rating decision, nor was new and material evidence received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). While service treatment records (STRs) and military personnel records were associated with the claims file after the November 2002 rating decision, they are not relevant to the Veteran's skin disability claim as they do not relate to any claimed in-service event or provide evidence of a nexus. Therefore, the exception to finality under 38 C.F.R. § 3.156(c) does not apply, and the November 2002 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Thus, the question before the Board is whether the evidence received after the final November 2002 rating decision is both new and material. The record reflects that when the RO issued the November 2002 rating decision, the Veteran's claims file contained VA treatment records, private treatment records, an April 2002 letter from Dr. C.P., and VA examination reports dated July 1977 and October 2002. Evidence received since the November 2002 rating decision includes updated VA treatment records, VA examination reports dated August 2014, February 2016, and February 2017, private "Skin Diseases" Disability Benefits Questionnaires (DBQs) dated December 2013 and December 2016, a December 2017 letter from Dr. M.V., and the February 2021 Board hearing transcript. Notably, during the February 2021 hearing, the Veteran was asked when he was first diagnosed with chloracne, or when he started getting symptoms of the skin. The Veteran testified that this was in the mid 1970's and that he was treated by a dermatologist called Dr. Stans. Additionally, during the February 2016 VA skin examination, the Veteran reported that in the early 1970's in Vietnam, he developed blisters on his feet and arms that progressively got worse, and during the February 2017 VA skin examination, he indicated that his skin problems onset in 1975 after exposure to Agent Orange and the burns to his face and arms. The Board finds that the February 2016 and February 2017 VA skin examination reports and the February 2021 hearing testimony are new evidence as they were not previously submitted to the RO and they are material because they relate to an unestablished fact necessary to substantiate the claim for service connection for a skin disability; namely, a nexus between service and the Veteran's current skin disability. Accordingly, the Board concludes that the evidence received since the last final decision is new and material and, for these reasons, the petition to reopen is granted. 3. Entitlement to service connection for a skin disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases are associated with herbicide agent exposure and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). Relevant here, chloracne, other acneform disorders, and porphyria cutanea tarda, may be presumed service connected if 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 active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Even if a veteran is not diagnosed with one of the enumerated diseases under 38 C.F.R. § 3.309(e), the veteran may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts he is entitled to service connection for a skin disability, to include as due to presumed exposure to herbicide agents during his service in the Republic of Vietnam and/or as due to burns he sustained from a furnace explosion in 1969. As an initial matter, the medical evidence reflects current skin diagnoses of psoriasis vulgaris, chloracne, eczema, acne, actinic keratosis, seborrheic keratosis, hyperhidrosis, and dermatitis. See VA treatment records dated April 2006 to September 2019; VA examination reports dated October 2002, August 2014, February 2016, and February 2017; private "Skin Diseases" DBQs dated December 2013 and December 2016. The Veteran is also diagnosed with squamous and basal cell carcinoma service connection claims related to these diagnoses are pending before the Board under the modernized appeals system. Thus, a current skin disability is established. Next, the Board finds that the Veteran was presumptively exposed to herbicide agents during his active service in the Republic of Vietnam during the Vietnam Era. See DD-214s. Additionally, a February 1969 Physical Profile Record notes that the Veteran had 1st and 2nd degree burns of the face and head that were healing. The Veteran reported that he sustained these burns when a furnace exploded next to him and that he was hospitalized in a burn unit at Brooke General Hospital, Fort Sam Houston, for about one month. See July 1997 VA examination report; VA treatment records dated February 2018 to September 2019; February 2021 Board hearing transcript. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's current skin disability and his in-service burns and/or exposure to herbicide agents. On review of the evidence, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current skin disability had its onset during his active service. First, the Board affords great probative value to the Veteran's competent and consistent reports that his skin symptoms onset during active service and have continued ever since. See VA examination reports dated July 1997 to February 2017; February 2021 Board hearing transcript. The Board has no reason to doubt the credibility of the Veteran's reports. Second, the Board finds it significant that in the July 1997 VA Agent Orange examination report, the VA examiner wrote that the Veteran "developed a recurrent blister like eruption of the face and recurrent, non[-]erythematous, nodular lesions over the medial and lateral aspect of all fingers since service in Vietnam during the 1970s" and that the "specific cause of the veteran's recurrent facial eruption and recurrent bilateral hand eruptions remains undetermined." Although the July 1997 VA examiner was unable to determine the etiology of the Veteran's skin symptoms, the findings still support an in-service incurrence of the Veteran's skin disability. Third, during the October 2002 VA examination, the Veteran reported experiencing "recurrent itching, recurrent rash with oozing and erythema on his elbows, wrists, and the chest area also with cracking and erythema" following his burns during service. The October 2002 VA examiner opined that the lesions "were highly likely related to the burn [and] also likely related to exposure to Agent Orange as most of his symptoms arose after his return from Vietnam." Following physical examination, the VA examiner noted that the Veteran had "residual infection of the burns scars on the left chest, bilateral elbows and wrists." The Board finds the October 2002 VA examiner's opinion highly probative given his expertise as a medical doctor, thorough examination of the Veteran, and consideration of the Veteran's lay reports of symptoms. Fourth, the Board finds the February 2016 and April 2017 VA medical opinions inadequate. The February 2016 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, "Veteran possesses multiple risk factors (having fair skin, light-colored eyes, red hair, and older age) for dvelopment (sic) of basal cell CA, squamous cell CA and actinic keratosis. His service in Vietnam very unlikely is the etiology of these multiple conditions." The Board finds the February 2016 VA medical opinion incomplete because the examiner did not address the etiology of all the Veteran's skin diagnoses. The April 2017 VA examiner opined that the Veteran's psoriasis vulgaris was less likely than not proximately due to or the result of the Veteran's service-connected burn scar of the nose, reasoning, in part, "Burn scars do not appear to be risk factors in the development of psoriasis, let alone proven to be causal agents in the medical literature." Medical opinions expressed in such speculative language ("do not appear") are inadequate, and "proven to be causal agents" is not the correct evidentiary standard. Thus, the October 2002 VA examiner's opinion is the only adequate etiology opinion of record and it is favorable to the Veteran's claim. For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for a skin disability is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.