Citation Nr: 22012840 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 20-23 259 DATE: March 7, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a skin condition is reopened. REMANDED Entitlement to service connection for a skin condition (previously denied as psoriasis) now claimed as dermatitis is remanded. Entitlement to service connection for a lung disease, to include lung scarring is remanded. Entitlement to service connection for skin cancer is remanded. FINDINGS OF FACT 1. The November 2007 Board's decision, denying entitlement to service connection for a skin condition, was not appealed and became final. 2. Evidence added to the record since November 2007 is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin condition. CONCLUSION OF LAW The criteria for reopening the previously denied claim of entitlement to service connection for a skin condition have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1965 to June 1969 and July 1969 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The RO issued a March 2020 statement of the case, denying entitlement to service connection for a skin condition, lung scarring, and skin cancer. In a separate March 2020 rating decision, the RO granted entitlement to service connection for a lower back condition with a 20 percent disability rating. Subsequently, in May 2020, the Veteran submitted VA Form 9, Appeal to the Board, appealing the issues of skin condition and lower back condition. In a May 2020 correspondence, the RO notified the Veteran that the grant of entitlement to service connection for a lower back condition in the March 2020 rating decision was a full grant, and if the Veteran disagrees with the assigned rating, then he could file the appropriate Appeals Modernization Act (AMA) form. The RO also certified the issues of entitlement to service connection for a skin condition, lung scarring, and skin cancer to the Board. Even though the Veteran only included "skin condition" on VA Form 9, the Board construes the Form 9 liberally and finds that all three issues "entitlement to service connection for a skin condition," "entitlement to service connection for lung scarring," and "entitlement to service connection for skin cancer" are on appeal. In this regard, an appeal certification worksheet completed by the RO in May 2020 lists those same three issues. Although the Veteran's appeal form also referenced a back issue, the issue of "entitlement to service connection for a lower back condition" is not on appeal because it has already been granted by the RO. If the Veteran believes that he is entitled to a higher rating for the service-connected lower back condition, then he may file an appropriate AMA form for VA review. New and material evidence having been received, the claim of entitlement to service connection for a skin condition is reopened In the March 2020 statement of the case, the RO reopened and denied the claim of entitlement to service connection for a skin condition that was previously denied in a November 2007 Board's decision. Regardless of the RO actions, the Board must still determine whether new and material evidence has been submitted to reopen the claim. Determining whether to reopen a claim is a preliminary and necessary step prior to addressing the claim on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, a claim is reopened, and the former disposition is reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. See 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 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. The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The claim of service connection for a skin condition was denied in a November 2007 Board's decision. The Board did not find a link between the Veteran's skin condition, diagnosed as seborrheic dermatitis, and his active service. The Veteran did not appeal this decision and it became final. The Veteran submitted new evidence in September 2017 and March 2018 for reopening the claim of service connection for a skin condition. The additional evidence presented since the November 2007 Board's decision includes private treatment record noting diagnosis of seborrheic keratosis irritated and verrucous keratosis, and February 2018 private nexus opinion linking the Veteran's current skin condition with his service, is not cumulative of evidence previously considered and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a skin condition. Presuming the credibility of the evidence in this case, it is new and material because, when considered with the evidence previously of record, it raises the reasonable possibility of substantiating the Veteran's claim. Hence, the Board concludes that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a skin condition, and the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition (previously denied as psoriasis) now claimed as dermatitis is remanded. In September 2017, the Veteran submitted private treatment records for his skin condition. The January 2017 private treatment record noted the red and brown spots on the Veteran's skin, including red raised crusty spot on right arm and left jawline flaky lesion. The June 2017 private treatment record noted the diagnosis of seborrheic keratosis irritated and verrucous keratosis. Also, in a February 2018 letter, a private examiner, R. G. B., noted the diagnosis of psoriasis and seborrheic dermatitis. The examiner also noted the Veteran's reports that he had these conditions while in service. And the examiner opined that it is as likely as not that the Veteran has this diagnosis since his military service. However, the Board notes that the examiner did not provide a supporting rationale. The Board also notes that VA has not obtained a medical opinion after reopening the claim of service connection for a skin condition. There is only one April 2018 VA disability benefit questionnaire (DBQ) for skin diseases that was completed by a VA examiner per the Veteran's request. This DBQ only noted the diagnosis of seborrheic dermatitis of the scalp but did not provide a medical opinion as to whether the Veteran's currently diagnosed skin condition is related to his active service. Hence, the Board concludes that a remand is warranted to afford the Veteran a new VA examination for his skin condition to determine the current diagnosis of a skin condition and obtain a medical opinion as to whether his skin condition is related to active service. In an August 1997 statement, the Veteran asserted that he was exposed to asbestos on ships in 1968, 1969, 1975. He was repairing brake assemblies from 1966 until 1986 that had asbestos, and his skin was exposed to dust particles and asbestos, and he was inhaling these particles into his lungs. Therefore, on remand, the opinion should also be obtained whether the Veteran's current skin condition is related to the claimed exposure to asbestos or dust particles during his military service. In the November 2017 notice of disagreement, the Veteran stated that lung scarring, skin condition, and skin cancer are due to exposure to jet fuel, paint thinner, all types of solvents, and petroleum fuels. Therefore, on remand, the opinion should also be obtained regarding any potential relationship between the Veteran's skin condition and the claimed exposure to petroleum fuels and paint thinner. 2. Entitlement to service connection for a lung disease, to include lung scarring is remanded. In September 2017, the Veteran submitted the claim of service connection for lung scarring and asserted that it is due exposure to asbestos during his service. The Board notes that the March 2017 VA treatment record indicates that the Veteran has diagnosis of chronic obstructive lung disease. Therefore, the Board finds that the Veteran's filing of the claim for lung scarring encompasses any diagnosed lung disease because a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). Rather, "[a] claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Hence, to allow for the most favorable review of the evidence and the claim, the Board is recharacterizing the issue as "entitlement to service connection for a lung disease, to include lung scarring." In the October 2017 rating decision, the RO denied entitlement to service connection for lung scarring and found that lung scarring is not a recognized presumptive disease due to exposure to an herbicide agent under 38 C.F.R. § 3.309. The Board finds that even though the Veteran is not entitled to service connection based on the presumption under 38 C.F.R. § 3.309(e), VA must still consider whether the Veteran's disability is causally linked to service on a direct basis, to include exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). The Board notes that the Veteran has not been afforded a VA examination for a claimed lung disease. Also, no VA medical opinion has been obtained to ascertain whether the Veteran has diagnosis of a lung disease and whether it is related to his active service, including exposure to herbicide agents. Therefore, the Board finds that a remand is warranted to afford the Veteran a VA examination for a lung disease and obtain a VA medical opinion as to whether the Veteran's claimed lung disease is related to his service. As noted above, the Veteran has asserted that he inhaled asbestos particles, paint thinner, and petroleum fuels. Therefore, on remand, a medical opinion should also be obtained as to whether the Veteran's claimed lung disease is related to the claimed exposure to asbestos particles, paint thinner, and petroleum fuels. The Board notes that a May 2015 private treatment record has a notation "significant elevation of risk for cancer of lungs and mesothelioma." In this regard the Board notes that 38 C.F.R. § 3.309(e) enumerated lung cancer as one of the presumptive diseases associated with exposure to herbicide agents. Therefore, a clarification from a medical expert is also required as to whether the Veteran has the claimed lung scarring and whether it is associated with any lung cancer. 3. Entitlement to service connection for skin cancer is remanded. In September 2017, the Veteran submitted the claim of service connection for skin cancer and asserted that it is due exposure to herbicide agents during his service. In the October 2017 rating decision, the RO denied entitlement to service connection for skin cancer and found that skin cancer is not a recognized presumptive disease due to exposure to an herbicide agent under 38 C.F.R. § 3.309. The Board finds that even though the Veteran is not entitled to service connection for skin cancer based on the presumption under 38 C.F.R. § 3.309(e), VA must still consider whether the Veteran's disability is causally linked to service on a direct basis, to include exposure to herbicide agents. See Combee, 34 F.3d at 1044. The Board notes that the June 2017 private treatment record noted the diagnosis of squamous cell carcinoma of skin. Also, the April 2013 private treatment record includes a notation of "skin cancer removal" under the past surgical history. The Board also notes that VA has not afforded the Veteran a VA examination for a skin cancer. Also, no VA medical opinion has been obtained to determine whether the Veteran has diagnosis of skin cancer and whether it is related to his active service, including exposure to herbicide agents. Therefore, the Board finds that a remand is warranted to afford the Veteran a VA examination for skin cancer and obtain a VA medical opinion as to whether the Veteran's has skin cancer, if so, whether it is related to his service. The matters are REMANDED for the following action: 1. Make appropriate efforts to verify exposure to herbicides if this point is not already conceded. 2. Schedule the Veteran for a VA examination for the claimed skin condition. Forward the claims file and a copy of this remand to the examiner in order to obtain a medical opinion on the nature and etiology of the claimed skin condition. After reviewing the claims file, the examiner should address the following: (a) Provide the diagnosis of all of the Veteran's current skin conditions, including any diagnosis during the appeal period that begins from September 27, 2017. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed skin condition had its onset during his period of active service, or related to an in-service injury, event, or disease, including in-service skin problems, exposure to herbicide agents, asbestos dust particles, paint thinners, and petroleum fuels. In providing the above opinions, the examiner should address the Veteran's contentions and treatment records associated with the claims file with entries dated: (i) 08/19/1997, titled "STR Medical" pages 3, 25, 27 of 174 that contain a November 1985, January 1986, and February 1986 service treatment records noting skin conditions, including psoriasis and seborrhiasis; (ii) 08/22/1997, titled "Correspondence," which contains the Veteran's statement regarding in-service skin problems and exposure of skin and lungs to asbestos and dust particles; (iii) 03/03/2000, titled "Third Party Correspondence," which contains an April 2000 correspondence from a private examiner, stating that the Veteran's skin rash was for many years; (iv) 12/14/2004, titled "Medical Treatment Record Government Facility" page 37 of 70 that contains a December 2004 VA treatment record noting chronicity of seborrheic dermatitis; (v) 03/06/2018 titled "Medical Treatment Record Non-Government Facility," which contains a February 2018 correspondence from a private examiner opining that the Veteran's current skin conditions are likely related to in-service skin conditions; (vi) 09/27/2017 titled "Medical Treatment Record Non-Government Facility" page 37 of 388 that contains a June 2017 private treatment record noting the diagnosis of seborrheic keratosis irritated and verrucous keratosis. 3. Schedule the Veteran for a VA examination for the claimed skin cancer. Forward the claims file and a copy of this remand to the examiner in order to obtain medical opinion on the nature and etiology of the claimed skin cancer. After reviewing the claims file, the examiner should address the following: (a) Provide an opinion as to whether the Veteran has the diagnosis of skin cancer. (b) If the Veteran has skin cancer, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's skin cancer had its onset during his period of active service, or related to an in-service injury, event, or disease, including in-service skin conditions, exposure to herbicide agents, asbestos dust particles, paint thinners, and petroleum fuels. In providing the above opinions, the examiner should address the treatment records associated with the claims file with entries dated 09/27/2017, titled "Medical Treatment Record Non-Government Facility," page 98 of 388 that contains the April 2013 private treatment record noting "skin cancer removal" in the past surgical history; and page 37 of 388 that contains a June 2017 private treatment record noting the diagnosis of squamous cell carcinoma of skin. 4. Schedule the Veteran for a VA examination for the claimed lung disease. Forward the claims file and a copy of this remand to the examiner in order to obtain a medical opinion on the nature and etiology of the claimed lung disease. After reviewing the claims file, the examiner should address the following: (a) Provide the diagnosis of lung disease(s), including the claimed lung scarring. The examiner should clarify if the Veteran has lung scarring, and whether it is a type of cancer. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lung disease had its onset during his period of active service, or related to an in-service injury, event, or disease, including exposure to herbicide agents, asbestos dust particles, paint thinners, petroleum fuels, and in-service respiratory problems. In providing the above opinions, the examiner should address treatment records associated with the claims file with entries dated: (i) 08/19/1997, titled "STR Medical" page 71 of 174 that contains October and November 1982 service treatment records noting pharyngitis, upper respiratory infection, and chronic bronchitis; (ii) 02/23/2018, titled "CAPRI" page 70 of 76 that contains a March 2017 VA treatment record indicating that the Veteran has a history of diagnosis of chronic obstructive lung disease; (iii) 09/27/2017, titled "Medical Treatment Record Non-Government Facility" page 93 of 388 that contains a May 2015 private treatment record having a notation "significant elevation of risk for cancer of lungs and mesothelioma." A complete and separate rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 5. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.