Citation Nr: 0705910 Decision Date: 03/01/07 Archive Date: 03/13/07 DOCKET NO. 05-10 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for tinea cruris. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from October 1967 to October 1969. This matter is on appeal to the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO determined that new and material evidence had not been submitted sufficient to reopen the veteran's previously denied claim of service connection for skin rash due to herbicide exposure. In February 2005, the RO reopened the veteran's previously denied claim, however, the veteran's claim for service connection was denied on the merits. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In an April 2003 rating decision, the RO determined that new and material evidence had not been submitted sufficient to reopen the veteran's previously denied claim for service connection for skin rash secondary to herbicide exposure. The veteran was notified of that decision; however, he did not submit a notice of disagreement or perfect an appeal. 2. The evidence submitted subsequent to the May 1998 decision is new, in that it was not previously submitted to agency decision makers and is not cumulative and redundant of the evidence previously considered. The evidence is material in that, when considered by itself or with previous evidence of record, it relates to an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2003 decision, in which the RO determined that new and material evidence had not been submitted sufficient to reopen a previously denied claim for service connection for skin rash secondary to herbicide exposure, is final. 38 U.S.C. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. New and material evidence has been received since the April 2003 rating decision; therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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). 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. Evans v. Brown, 9 Vet. App. 273 (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 veteran contends that he developed tinea cruris during service. He states that a rash developed during Vietnam service as a result of either herbicide exposure or prolonged exposure to mud and moisture. He contends that he received a medicated cream to treat this condition. In April 2003, the RO determined that the veteran had not submitted new and material evidence sufficient to reopen his previously denied claim for service connection. In denying his claim, the RO concluded that the evidence received in connection with the claim to reopen failed to establish that the veteran received treatment for a skin rash during service. The relevant evidence of record considered in conjunction with the April 2003 denial of VA compensation benefits include the veteran's service medical and administrative records, his lay statements in support of his claim, and January 2003 VA medical records reflecting treatment for lichen simplex chronic on the veteran's groin. In August 2004, the RO declined reopening the veteran's previously denied claim for service connection. He perfected an appeal of that decision. The evidence submitted subsequent to the April 2003 decision includes April 1982 VA medical records indicating treatment for tinea cruris, a December 2005 VA diabetes mellitus examination reflecting a current diagnosis of tinea cruris, a March 2004 lay statement from a fellow service member who recalls the veteran complaining of a groin condition and seeking treatment from the medic, the veteran's lay statements in support of his claim, and the veteran's testimony before the undersigned Veterans Law Judge in April 2006. With regard to the evidence submitted subsequent to the April 2003 decision, all of the evidence is new; as it was not previously submitted to agency decision makers. Further, this evidence is also material, as it relates to an unestablished fact (the veteran sought treatment for a groin condition during service) necessary to substantiate the claim. The evidence submitted is neither cumulative nor redundant of the evidence of record in April 2003. The determinative issue in a claim for service connection is whether there is medical evidence of a current disability; medical, or in certain circumstances, lay evidence of the in- service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. The veteran has submitted evidence of a current diagnosis of tinea cruris and a competent lay statement that he sought treatment for a groin condition during service. The evidence submitted raises a reasonable possibility of substantiating the veteran's claim for service connection for tinea cruris. The Board finds, therefore, that new and material evidence has been received, and the claim of entitlement to service connection for tinea cruris is reopened. ORDER New and material evidence having been received, the application to reopen the claim for service connection for tinea cruris is granted. REMAND The veteran contends that he developed tinea cruris during service. May 1968 service medical records reflect that the veteran sought treatment for swelling in the left thigh treated with wintergreen liniment. In June 1968 he sought treatment for a condition affecting his penis, although no diagnosis was reached. In September 1968 the veteran complained of itching in the groin area, although no rash was noted. The veteran also sought treatment for a lump in the right thigh area in September 1968. The veteran has submitted a March 2004 lay statement from a fellow soldier who recalls the veteran having problems with his groin during service. In April 2006, the veteran testified before the undersigned Veteran's Law Judge. The veteran described receiving treatment from field medics for his groin condition during service. He stated that he was given creams and instructed to lay nude in the sun to increase the effectiveness of the cream. Also of record is a December 2005 VA diabetes mellitus, type II examination, which reflects a current diagnosis of tinea cruris. The veteran has submitted evidence of a current diagnosis of tinea cruris and service medical records reflecting treatment for a groin condition during service corroborated by a competent lay statement. VA has the duty to assist him in the development of his claim by providing him with an opinion to determine whether a medical nexus exists between his current disability and the groin condition treated during service. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the issue of service connection for tinea cruris is REMANDED for the following development: 1. The veteran should be afforded an appropriate examination to determine whether it is at least as likely as not (that is, probability of 50 percent or better) that the veteran's current tinea cruris is related to the findings in the groin area during service. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should obtain any tests or studies deemed necessary for an accurate assessment. 2. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issue remaining on appeal. If any benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs