Citation Nr: 0000186 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 97-33 687A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for malaria. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disability of the upper extremities and/or buttocks, including scrotal abscesses, furuncles and cellulitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from April 1944 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 1997. A hearing was held in October 1999 in Waco, Texas, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). Service connection for a skin condition, including abscesses in the groin area and furuncles and cellulitis of the right forearm, was denied by the RO in February 1981. In his attempt to reopen his claim filed in October 1996, he referred to "boils" of the upper extremities and buttocks. Although the initial rating decision, in April 1997, referred only to "furuncles and cellulitis," the November 1997 rating decision and supplemental statement of the case discussed scrotal abscesses as well, and the evidence submitted by the veteran and his hearing testimony indicate that the veteran is claiming service connection for all of these conditions, which he believes are related. Accordingly, the issue has been stated in order to more accurately reflect the scope of the appeal. In addition, in June 1998, a Congressional Inquiry was received, noting that the veteran had filed a claim for, inter alia, "jungle rot." The VA responded, in July 1998, that the VA's claim for service connection for fungus infection of the feet had previously been denied, and that he could reopen his claim with the submission of new and material evidence. In a letter dated in October 1999, the veteran informed VA that he had been treated for "jungle rot" in service, and at his hearing, he testified that he currently had "jungle rot" on his hands and feet. These statements should be construed as an informal claim, and the veteran should be provided an application, pursuant to 38 C.F.R. § 3.155 (1999). The June 1998 Congressional Inquiry also mentioned a claim for loss of vision. In October 1999, the veteran stated that he had been hit in the eye with an empty shell. Review of the file discloses that traumatic adhesions and a cataract in the right eye were noted on the induction examination in February 1944. However, in January 1945, it was noted that he had injured his right eye prior to service, but had injured the eye again while shooting a rifle about six months earlier. In April 1945, he was seen with a foreign body in the right eye. The separation examination in February 1946 noted defective vision, which had existed prior to service, but which was aggravated by military service, and resulted in present disability. Nevertheless, service connection was denied in March 1946, and again in September 1978. According to a medical certificate dated in September 1978, the veteran had secondary membrane of the right eye, traumatic aphakia of the right eye, and secondary glaucoma of the right eye. Subsequent medical records disclose continued loss of vision in that eye. Accordingly, the June 1998 and October 1999 correspondence should be construed as an informal claim, pursuant to 38 C.F.R. § 3.155, and the RO should take appropriate action. FINDINGS OF FACT 1. Service connection for malaria was denied by the RO in September 1978. 2. Evidence received subsequent to that determination consists of the veteran's testimony regarding a diagnosis of malaria, and continuing symptoms he attributes to malaria, matters which are beyond his competence as a layperson. 3. Service connection for a skin disability of the upper extremities and/or buttocks, including scrotal abscesses, furuncles and cellulitis, was denied by the RO in February 1981. 4. Evidence received since that time includes medical evidence of skin disabilities many years after service, with no competent evidence of a nexus to service. CONCLUSIONS OF LAW 1. Evidence received since the originating agency denied entitlement to service connection for malaria in September 1978 is not new and material and the veteran's claim has not been reopened; the September 1978 decision is final. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1999). 2. Evidence received since the originating agency denied entitlement to service connection for a skin disability of the upper extremities and/or buttocks, including scrotal abscesses, furuncles and cellulitis in February 1981 is not new and material and the veteran's claim has not been reopened; the February 1981 decision is final. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues of entitlement to service connection for malaria and for a skin condition were previously the subject of final denials by the agency of original jurisdiction. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104 (1999). However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" is defined as evidence not previously submitted 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 the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. 38 C.F.R. § 3.156(a) (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In considering whether there is "new and material evidence" under this standard, all evidence submitted since the last time that the claim was finally disallowed on any basis must be considered. Evans v. Brown, 9 Vet.App. 27 (1996). A. Malaria Service connection for malaria was previously denied by the RO in September 1978. Evidence of record at the time of the September 1978 rating decision consisted of service medical records which showed the veteran was hospitalized in June 1945 for amebic dysentery. A malaria smear was taken; however, the test was negative. The final diagnosis was acute catarrhal enteritis. The RO denied the claim on the basis that malaria had not been confirmed in service, and there were not current residuals. Evidence received since that determination consists of the veteran's testimony at his hearing before the undersigned in October 1999 that he was hospitalized for two weeks during service in the Philippines with what he was told was malaria, and that he has had that same type of feeling on occasion since then. However, as noted, malaria was not diagnosed in service. Moreover, there is no currently diagnosed condition which has been medically attributed to malaria, or to the veteran's complaints of continuous symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). Malaria is a disease requiring medical expertise to diagnose and to identify residuals associated therewith; consequently, the veteran is not competent to provide evidence that he has residuals of malaria. See Grottveit v. Brown, 5 Vet.App. 91 (1993). Thus, since the only additional potentially relevant evidence consists of hearing testimony involving matters beyond the veteran's competence, the evidence is not "so significant that it must be considered in order to fairly decide the merits of a claim." 38 C.F.R. § 3.156; Hodge. Consequently, the evidence is not material to the issue of service connection; the claim is not reopened, and the September 1978 decision remains final. B. Skin Disability As noted above, service connection for a skin condition, including abscesses in the groin area and furuncles and cellulitis of the right forearm, was denied by the RO in February 1981. Evidence of record at the time of the February 1981 rating decision included service medical records, which show the veteran's hospitalization in May 1994 for treatment of a furuncle on the forearm. The furuncle had been opened, but the swelling continued, and acute cellulitis was diagnosed. At the time of his discharge, the condition was noted to be cured. In September 1945, an acute penile ulcer, cause undetermined, was noted. Reportedly, a Kahn test had been negative. The separation examination did not report any skin abnormalities. Also of record was a summary of a VA hospitalization in January 1981, for treatment of a right scrotal abscess. At that time, a long history of scrotal abscesses was noted, with a history of multiple incisions and drainages on the right side. He was also status post right orchiectomy. An incision and drainage of the right scrotal abscess was performed, and, at the time of discharge, there was no significant drainage or tenderness. Based on this evidence, the RO denied the claim on the basis that the inservice furuncle and cellulitis had healed without residuals, and the current scrotal abscess was not shown to be related to service. Evidence received since the February 1981 determination included a letter from R. H. Baskin, M.D., dated in February 1981, who wrote that the veteran had had an ischio-rectal abscess incised and drained in February 1960. However, this evidence, which shows an abscess in 1960, does not relate the condition to service. Moreover, a "long history" of scrotal abscesses had previously been noted on the January 1981 hospitalization report. Also received was a statement dated in August 1982 from a VA medical center, reporting that the veteran had been admitted to urology service with a history of right inguinal and scrotal abscesses. He was also status post right orchiectomy. The current diagnosis was right inguinal scrotal abscess, and he underwent right inguinal exploration, excision of sinus tract, and excision of remnant of cord. Again, however, evidence of scrotal abscesses was of record at the time of the previous decision. Records of the veteran's more recent VA treatment were also received, showing treatment from February to June, 1992, from January to November, 1996, and from January to May, 1999, for multiple medical conditions, including diabetes mellitus and residuals of cerebrovascular accidents. Skin disorders shown in these records primarily involved the feet, which, as noted above, are not part of the current appeal. In addition, a fungus infection of the hands was noted in May 1999, which is also not included in the current appeal. In September 1999, the veteran had a keratosis of the right temple, and dermatophytosis, as well as stasis edema. However, there is no competent evidence relating any of these conditions to service, or to skin disorders shown in service. In October 1999, the veteran testified at a hearing before the undersigned regarding his skin condition. He essentially testified that once his skin had been treated successfully in one area, he would start having problems in another area, which he felt were all related. However, the veteran, as a layperson, is not competent to provide evidence of an etiological connection between his various skin conditions. See Grottveit. Moreover, medical evidence is required to establish a nexus between a current disorder and his complaints of continuous symptomatology. See Voerth. Thus, evidence previously of record did not include competent evidence of a connection between any inservice skin condition, and the scrotal abscesses shown many years later. The evidence submitted since then does not show that the veteran had any scrotal abscesses subsequent to the surgery in 1982, or that any of the skin conditions shown in service are currently present. Currently shown skin conditions similarly have not been medically attributed to service onset, or to any other skin condition present in service. Consequently, the additional evidence is not new and material, and the claim is not reopened. ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for malaria not having been received, the appeal is denied. New and material evidence sufficient to reopen a claim for entitlement to service connection for malaria not having been received, the appeal is denied as to that issue. JEFF MARTIN Member, Board of Veterans' Appeals