Citation Nr: 1041976 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 09-17 899 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for nonspecific pruritic dermatitis of the lower legs. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The appellant served in the United States Air Force Reserve with a period of active duty for training from February 9, 1978 to May 10, 1978, and unverified active duty from October 19, 1990 to April 26, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In its May 2008 decision, the RO determined that new and material evidence had not been submitted to reopen previously denied claims for service connection for nonspecific pruritic dermatitis and for degenerative disc disease of the lumbosacral spine. The appellant filed a notice of disagreement (NOD) as to both matters. In April 2009, the RO issued a statement of the case addressing only the appellant's claim to reopen his dermatitis claim. That same month, the RO reopened the appellant's claim for service connection for lumbar degenerative disc disease, awarded service connection for that disability, and assigned a disability rating and effective date. It appears that notice of that decision was not sent; however, in May 2010, the RO re- issued a copy of the April 2009 decision to the appellant. To date, it does not appear that the appellant has disagreed with any aspect of that decision. Thus, the matter is not before the Board. FINDINGS OF FACT 1. By a February 2002 rating decision, the RO denied a claim of service connection for nonspecific pruritic recurrent dermatitis of the lower legs; a statement of the case was issued in February 2004, but the appellant did not perfect an appeal. 2. Evidence received since the RO's February 2002 decision is cumulative and redundant of evidence of record at the time of the February 2002 decision and does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the dermatitis claim; nor does it raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen a previously denied claim of service connection for nonspecific pruritic dermatitis has not been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the Board notes that the appellant has claimed service connection for a disability that he asserts was incurred during a period of service from October 1990 to April 1991. The RO has treated this period as a verified period of active duty, which may indeed be correct, but the record now available to the Board does not include such confirmation. The file, including the appellant's service records, indeed suggests that he was in fact performing military duty during this period; however, the RO has not included any documented verification of active duty service. Nevertheless, even assuming that service from October 1990 to April 1991 was a period of active duty service, for the reasons set forth below, the claim will not be reopened. A. Petition to Reopen Previously Denied Claim The appellant originally filed a claim for service connection for a rash on his legs in August 1996. In September 2000, the RO denied that claim on the basis that it was not well grounded. In February 2002, following enactment of the Veterans Claims Assistance Act of 2000 (VCAA), which eliminated the well-grounded claim requirement, the RO issued a new rating decision, wherein it denied service connection for pruritic recurrent dermatitis with residual scarring of the lower legs. The appellant filed an NOD as to the RO's February 2002 denial of service connection. In February 2004, an SOC was issued, wherein the appellant was informed that he had 60 days from that date to file his appeal to the Board. In March 2004, the appellant requested an extension of time in which to file his appeal. In May 2004, the RO granted the appellant a 60-day extension of time. The appellant failed perfect an appeal to the Board within those 60 days and the February 2002 RO decision therefore became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2004). As a result of the finality of the February 2002 RO decision, a claim of service connection for pruritic dermatitis with residual scarring of the lower legs may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that it must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384; see Butler v. Brown, 9 Vet. App. 167, 171 (1996). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this case, the evidence of record at the time of the February 2002 decision included: the appellant's service treatment records (STRs), VA outpatient treatment records from the Bronx, New York, VA medical center (MC) dated from April 1994 to July 1996, and an October 2001 VA dermatology examination report. The appellant's STRs were silent for complaints of or treatment for a rash on the lower legs. Notably, there are numerous treatment entries between February 1991 and April 1991 for treatment related to back pain, but no mention of a rash. His March 1991 report of medical history contains no reference to a rash or any skin disease. Air Force Reserve annual medical certificates (AF Form 895) dated in 1992 and 1993 indicated no current medical problems and documented that he had not been treated by a physician since his last AF Form 895. His 1995 annual medical certificate notes that he had received treatment from and been prescribed medicine by a physician, dentist, or healthcare provider since his last AF Form 895. On the back of that form, the appellant stated that he was taking medication and being treated at the Bronx VAMC for a skin rash. In September 1995, a punch biopsy of the skin was conducted. Medical examination reports dated in 1996 contain no references to a skin rash. A January 1997 annual medical certificate noted treatment for a skin rash, the location of which was not specified. The Bronx VAMC outpatient treatment records contained multiple entries for treatment of a rash on the legs and showed a diagnosis of lichen planus. The October 2001 VA dermatology examination report contained a diagnosis of nonspecific pruritic recurrent dermatitis with residual atrophic scarring of the lower legs. The appellant had reported that the rash had been present on and off since 1991 and had been previously diagnosed as lichen planus. The examiner did not comment on the origin of the rash. In denying the claim for service connection in February 2002, the RO acknowledged the appellant's complaints of an itchy rash, which he asserted had existed on an intermittent basis since 1991. The RO found that although the appellant had a current diagnosis of pruritic recurrent dermatitis with residual atrophic scarring of the lower legs, service connection was not warranted because the evidence failed to establish that that condition was incurred in or caused by the appellant's active military service. The RO also considered whether the appellant was entitled to compensation based on an undiagnosed illness associated with his service in the Southwest Asia theater of operations during the Persian Gulf War. The RO determined that because the appellant's skin condition had been clinically diagnosed, entitlement to compensation under the provisions of 38 C.F.R. § 3.317 was not warranted. Since the February 2002 RO decision, the new evidence that has been added to the record includes: the report of a 1996 Gulf War registry examination; Bronx VAMC outpatient treatment records dated from October 2000 to March 2002; Lyons, New Jersey, VAMC outpatient treatment records dated from December 2006 to November 2008; VA compensation and pension examination reports, and statements from the appellant. A review of the medical evidence shows that in 1996, the appellant was diagnosed with lichen planus, the cause of which was recorded as "unknown." The Bronx VAMC outpatient treatment records show treatment for lichen planus. The Lyons VAMC outpatient treatment records show treatment for a rash and scarring on the legs. He was prescribed various medications for treatment of active lesions and scarring. A December 2006 treatment notation shows that the appellant had not been seen for treatment since 2002. It was noted that his condition had not improved with treatment with steroids and topical creams. The appellant has also submitted lay statements wherein he reported treatment at the Lyons VAMC for his rash of the lower legs. He also submitted a statement concerning the conditions of his service in Saudi Arabia. He reported unsanitary conditions and stated that since his rash was recurrent, little attention was paid to it at that time. He indicated that no treatment was available for his rash and that he wore clothing that covered his legs. He stated that upon returning to the United States, he underwent a Gulf War examination and a biopsy of the rash was performed. He further stated that he knew of other members of his unit who had the same rash and who were receiving VA disability compensation for it. The appellant asserted that lichen planus is indigenous to the area where he stationed overseas. In March 2008, the appellant was afforded a VA posttraumatic stress disorder examination and in February 2009, he underwent a VA orthopedic examination of the spine. No mention of his claimed skin rash was made during these examinations. Based on the above review, the Board finds that the evidence submitted since the February 2002 RO decision does not constitute new and material evidence. Although the evidence is new because it was not previously before VA decision makers, it is cumulative of evidence of record before the RO in February 2002. The appellant had previously reported the onset of his rash to be in 1991 and asserted his belief that it was related to his overseas service. The RO determined, however, that the evidence failed to show that the appellant's claimed disability had its onset in service. The prior evidence also contained a diagnosis of lichen planus and nonspecific pruritic recurrent dermatitis and showed treatment for that condition. Thus, the newly submitted evidence showing diagnoses of and treatment for those conditions is merely cumulative of the previously submitted evidence. Further, the medical evidence submitted since February 2002 does not pertain to whether the appellant's rash was incurred in or related to his period of active military service. The new medical records are silent as to etiology or onset of the appellant's rash. The VA examination reports pertain to conditions other than the appellant's skin rash and are thus not material evidence with regard his claim for service connection for nonspecific pruritic dermatitis. In sum, the new evidence is cumulative and redundant of previously submitted evidence and therefore does not relate to an unestablished fact necessary to substantiate the claim of service connection for pruritic recurrent dermatitis, and it does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been submitted. Thus, the petition to reopen the claim of service connection for nonspecific pruritic recurrent dermatitis must be denied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). B. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2010)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. The appellant's petition to reopen was received in July 2007. In August 2007, the RO sent to him a letter notifying him that his claim for service connection was previously denied in February 2002 because the evidence failed to establish that his claimed skin condition was incurred in or caused by service. He was informed that he needed to submit new and material evidence and was advised of the definition of such. The letter also informed the appellant of the information and evidence necessary to substantiate a claim for service connection. He was further advised of VA's duty to assist, to include a statement that VA would not provide a medical examination unless his claim was reopened, and of his responsibilities in the adjudication of his claim. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The appellant responded that same month, stating that he had no further information or evidence to submit to VA. The appellant has not disputed the contents of the VCAA notice in this case. Upon review of the July 2007 VCAA letter, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the appellant in obtaining the evidence necessary to substantiate his claim. The appellant identified having received treatment from VA and those records were obtained and associated with the claims folder. His STRs were of record at that time of the prior denial in February 2002. He elected not to have a hearing in his case. The appellant has not alleged that there is any additional outstanding evidence pertinent to his claim. The Board is also unaware of any such evidence. Moreover, the duty to provide a VA medical examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As discussed above, new and material evidence has not been submitted and the appellant's service- connection claim has not been reopened; therefore, an examination is not required. Thus, the Board is satisfied that the duty-to- assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence to reopen a claim of service connection for nonspecific pruritic dermatitis of the lower legs has not been submitted, the claim to reopen is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs