Citation Nr: 0005198 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-03 430 A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for skin disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ralph G. Stiehm, Counsel INTRODUCTION The veteran had active service from April 1966 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the Fargo, North Dakota, Regional Office (RO) of the Department of Veterans Affairs. The veteran testified at a personal hearing at the RO in June 1998. FINDINGS OF FACT 1. In an April 1994 rating decision, the veteran's claim of entitlement to service connection for a skin disorder, to include as a result of Agent Orange exposure , was denied; the veteran filed a notice of disagreement, but did not complete an appeal with a timely substantive appeal. 2. The evidence associated with the claims file subsequent to the April 1994 rating decision is not so significant that it must be considered to fairly decide the merits of the veteran's claim of entitlement to service connection for skin disability, to include as due to Agent Orange exposure. CONCLUSION OF LAW The evidence received since the April 1994 rating decision which denied entitlement to service connection for skin disability is not new and material, and the veteran's claim for that benefit may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks service connection for a skin disorder which he essentially attributes to exposure to Agent Orange in service. Service connection may be granted for a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection is presumed for a number of diseases, including chloracne, arising in veterans who have been determined to have been exposed to certain herbicide agents. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding such presumption, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Turning to the record, the Board observes that entitlement to service connection for skin disability was denied in an April 1994 rating decision. The veteran filed a notice of disagreement, and in November 1994 the RO provided the veteran with a statement of the case. Thereafter, the veteran failed to file a substantive appeal. The April 1994 rating decision, therefore, became final and, as such, that decision may not be reopened without "new and material evidence." See 38 U.S.C.A. § 5108, 7105(c), 38 C.F.R. § 20.1103; see Godfrey v. Brown, 7 Vet. App. 398, 405 (1995); Moray v. Brown, 5 Vet. App. 211, 213 (1993). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. New and material evidence means evidence not previously submitted to agency decision makers 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 in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); At the time of the April 1994 rating decision, the RO had before it service medical records, as well as the results of a May 1994 VA examination of the veteran's skin. Service medical records contained no reference to a skin disorder other than an entry in a November 1965 pre-induction examination report, which reflected the presence of a maculopapular rash of unknown etiology. During a May 1968 separation examination, the veteran's skin reportedly was normal. During a VA examination in March 1994, an examiner who noted the presence of pigment irregularities diagnosed extensive vitiligo, noting that the etiology was unknown but was not related to Agent Orange. The examiner also indicated in the diagnosis that the veteran could have had a slight amount of chloracne in service, but probably did not. In denying service connection for a skin disorder, the RO observed that vitiligo is not a disorder associated with herbicide exposure. Since the April 1994 decision, the veteran has submitted additional evidence. Included with this evidence are treatment records documenting treatment for vitiligo many years after service. A March 1999 entry for instance, makes reference to vitiligo, as well as eczema. A report of a January 1999 VA examination references pigmentation problems. During a hearing in June 1998, the veteran expressed his belief that his skin disorder was related to Agent Orange exposure in service. However, at the time of the April 1994 decision, there was medical evidence of a skin disorder identified as vitiligo. The newly received items of evidence show continued problems with vitiligo. To that extent the new evidence is cumulative of evidence already of record. To the extent that the new evidence references other skin problems, such as eczema, such evidence of such problems many years after service is not so significant that it must be considered with the evidence already of record since it in no way suggests any relationship of such skin problems to service. Evidence submitted since April 1994 fails to fill the void present in the veteran's claim at the time of the prior final decision. Instead, evidence associated with the claims file since April 1994 simply provides additional documentation of a current skin disorder. It does not identify chloracne or another disorder for which service connection may be presumed under 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309, and it does not provide a basis for concluding that a current skin disorder was first manifested during service or is otherwise is related to service, including as due to exposure to Agent Orange. The Board notes that although the veteran has provided testimony concerning his belief that his skin disorder is related to an incident of service, his representation in this respect is simply a recapitulation of a similar argument he presented prior to April 1994. To the extent his testimony addresses medical questions, it has not been shown that he is competent to render medical diagnoses or opinions as to etiology. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board notes in closing that while the RO initially denied the veteran's request to reopen (giving rise to the present appeal), a subsequent supplemental statement of the case in July 1999 suggests that the RO may have gone on to consider the merits of the appeal. However, the question as to whether a claim which is the subject of a prior final decision has been reopened is jurisdictional in nature, and the Board as part of its appellate review must also consider whether new and material evidence has been received to reopen the claim. See generally Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). For the reasons set forth above, the Board is unable to find that the veteran's claim has been reopened. ORDER The claim is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals