Citation Nr: 0002247 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-00 052A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a fungal infection of the feet. 2. Entitlement to special monthly pension on the basis of being in need of the aid and attendance of another person or at the housebound rate. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claims on appeal. The veteran who had active service from August 1950 to August 1953, appealed that decision to the BVA and the case was referred to the Board for appellate review. The veteran did not report to his November 1998 Travel Board Hearing at the RO (see January 2000 Report of Contact). The claims folder does not contain a notice of disagreement to the September 1998 rating decision that denied service connection for frostbite of the hands. Therefore, the only issues currently on appellate status before the Board are the issues identified on the front page of this decision. In view of the decision that follows, appellate review of the issue of entitlement to special monthly pension will be deferred and it is addressed in the remand portion of this decision. In his notice of disagreement, the veteran indicated that he had frostbite and deformities of the feet during service. It is not clear, but he may be seeking service connection for additional disability of the feet. This matter is referred to the RO for clarification and any indicated action. FINDINGS OF FACT 1. An unappealed rating decision in March 1954 denied service connection for dermatophytosis of the feet. 2. An unappealed rating decision in June 1960 denied service connection for a skin condition of the feet. 3. Evidence submitted since the June 1960 decision was not previously submitted to agency decisionmakers, bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled, is so significant that it must be considered to fairly decide the merits of the claim. 4. The veteran was diagnosed with a fungal infection of the feet while on active duty, and he has been diagnosed with additional skin disorders of the feet, including a fungal infection, following service. CONCLUSIONS OF LAW 1. The June 1960 rating decision which denied the veteran's request to reopen his previously denied claim of entitlement to service connection for dermatophytosis of the feet is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.1103 (1999). 2. The evidence received since the June 1960 decision is new and material, and the veteran's claim for service connection for a fungal infection of the feet is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim for service connection for a fungal infection of the feet is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A rating decision dated in March 1954 denied service connection for dermatophytosis of the feet, on the grounds that the disorder, while noted during a post service examination, was not present in service. In June 1960, the RO denied service connection for a skin condition of the feet. The RO, in June 1960 determined that no skin disorder was currently present, and, essentially, that no new and material evidence had been submitted since the March 1954 denial. The veteran was notified of the RO's decision in June 1960 but did not file a timely appeal and the RO's decision became final. See 38 U.S.C.A. § 7105(b)(1)(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999); Person v. Brown 5 Vet. App. 449, 450 (1993). A final decision under the provisions of 38 U.S.C.A. § 7105(c) cannot be reopened and reconsidered by the VA unless new and material evidence is presented in connection with a request that the previously denied claim be reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). When it is determined that new and material evidence has been submitted, the VA must reopen a previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 286-87 (1993); see also 38 U.S.C.A. § 7104(b). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence to be reviewed is that which has been submitted since the last decision that disallowed the claim on any basis. The report from a VA examination conducted in May 1983 disclosed that the veteran had a fungal infection of the feet. Private treatment records from June 1991 contained a diagnosis of Athlete's foot. In April 1993, the veteran complained of a rash on the feet and the assessment was cyanosis/edema with scaly, dry itchy cracking between the toes. A November 1996 VA examination report contained diagnoses of history of frozen feet and plantar callosities of both feet. VA treatment records from July 1998 noted that the veteran provided a history of frostbite of the hands and feet. No diagnosis was provided. Since the previous denial was based on the fact that no skin disorder was present at the time, subsequent medical evidence showing the presence of a skin disorder is evidence that bears directly and substantially upon the specific matter under consideration, that was not previously submitted to agency decisionmakers, is neither cumulative nor redundant, and in connection with evidence previously assembled, it is so significant that it must be considered to fairly decide the merits of the claim. Accordingly, the Board finds that new and material evidence has been submitted to reopen the previously denied claim for service connection for a skin condition of the feet, and the veteran's claim for service connection for a fungal infection of the feet is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a fungal infection of the feet is reopened, and the claim is well grounded; to this extent, the appeal is granted. REMAND New and material evidence having been submitted to reopen the claim for service connection for a fungal infection of the feet, the claim is reopened and REMANDED for de novo review. Service medical records noted that the veteran was treated for a number of skin infections, variously diagnosed as tinea cruris, tinea pedis, athlete's foot, dermatophytosis, and epidermophytosis. There was no reference to any complaint or diagnosis of frostbite of the feet. The veteran's separation examination report noted indicated that the veteran had pes planus and a bunion, but no other abnormality of the feet was noted. The report from a VA examination conducted in January 1954, five months after separation from service, contained a diagnosis of dermatophytosis. As the Board has determined that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990), VA has a duty to assist him in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.103 (1999). It is the Board's judgment that an examination by a dermatologist, together with a competent medical opinion addressing the etiology of any skin disorder diagnosed, is warranted. As the veteran will undergo another VA examination which could result in findings relevant to the issue of entitlement to special monthly pension, the Board will defer appellate review of that issue pending completion of the development below. Accordingly, this case is REMANDED to the RO for the following action: 1. The veteran should be afforded a VA examination by a dermatologist to determine the nature and etiology of a fungal infection of the feet or any other skin disorder of that may be present. The examiner is requested to review all the medical evidence in the claims folder, to include the notes pertaining to treatment of a fungal infection of the feet during service, shortly after service, in 1983, and in more recent years, and opine whether it is as likely as not that any current skin disorder, including a fungal infection, is related to service. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1998), copies of all pertinent medical records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review 2. Following completion of the above action, the claim of entitlement to service connection for a fungal infection of the feet should be readjudicated on the merits. The RO should also readjudicate the claim of entitlement to special monthly pension. If either claim is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and to comply with procedural due process of law. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. R. F. WILLIAMS Member, Board of Veterans' Appeals