Citation Nr: 18123985
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-29 892
DATE:	August 6, 2018
ORDER
New and material evidence having not been received, the claim to reopen the previously denied claim entitlement to service connection for psoriasis is denied.
Entitlement to service connection for a skin disorder, other than psoriasis, to include eczema or as an undiagnosed illness is denied.
FINDINGS OF FACT 
1.  In an unappealed October 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for psoriasis.
2. The evidence added to the records since the October 2011 rating decision is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection for psoriasis.
3. The Veteran does not have a diagnosis of eczema.
4. The Veteran’s skin complaints have been attributed to a known clinical diagnosis of psoriasis.
CONCLUSIONS OF LAW
1.  The October 2011 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302
2. As new and material has not been received, the criteria for reopening the claim for service connection for psoriasis have not been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The criteria for service connection for a skin disorder, other than psoriasis, to include eczema, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1996 to March 2000.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
Concerning the Veteran’s claim for service connection for eczema, the Board notes that the record reflects various diagnostic impressions, including nonspecific skin eruption.  Because the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim and reported syndromes and all other information of record, the Board finds that it is more appropriate to characterize his claims broadly, as a single claim of entitlement to service connection for skin disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).
1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for psoriasis
Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received.  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.302.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108.  New evidence is defined as 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). 
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  
When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).
An October 2011 rating decision denied service connection for psoriasis because there was no evidence the Veteran’s disorder was related to his active duty service.  The relevant evidence of record at that time included the Veteran’s statements, service treatment records, and VA treatment records.  See October 2011 Rating Decision.  The Veteran was notified of the October 2011 rating decision and of his appellate rights by letter dated October 31, 2011.  The Veteran did not appeal the October 2011 rating decision.  As such, the October 2011 rating decision is final in regards to the Veteran’s claim of entitlement to service connection for psoriasis.
The evidence of record received subsequent to the October 2011 rating decision consists of post-service medical records and the Veteran’s statements.  The Board concludes that the evidence is new, because it was not before the RO when it denied to reopen the claim of service connection for psoriasis.
Although the evidence is new, the Board finds that it is not material because it contains no indication that the Veteran’s psoriasis is related to service.  The evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of a disease, without addressing the crucial matter of a medical nexus, does not constitute new and material evidence).  The additional medical evidence is therefore not so significant that it must be considered in order to fairly decide the merits of the claim.
In light of the above, the Board finds that the evidence submitted since the last final denial of the claim does not meet the new and material evidence standard, and thus the claim cannot be reopened.  
2. Service Connection
The Veteran claims he developed a skin condition as a result of his Gulf War service.  See August 2015 VA Form 9.  For the following reasons and bases, the Board finds that entitlement to service connection for a skin disorder is not warranted.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996).
Additionally, where a veteran has served 90 days or more of active service during a war period or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In the instant case, eczema is not considered a chronic disease pursuant to VA regulations and, as such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted.
However, service connection may also be established for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that manifests either during active service in the Southwest Asia Theater during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examinations, or laboratory tests.  38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1).  In the instant case, the record reflects that the Veteran had service in Southwest Asia during the Persian Gulf; however, his skin disorder complaints have been attributed to known clinical diagnosis of psoriasis and, and, therefore, 38 U.S.C. §1117 and 38 C.F.R. § 3.317 are inapplicable to his claim.  See November 2013 Skin Diseases Disability Benefits Questionnaire (DBQ) (diagnosing the Veteran with psoriasis and noting he does not have a chronic undiagnosed illness).
The Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses of eczema.  The Veteran was treated for an abrasion to his right elbow, with a possible diagnosis of cellulitis.  See October 1996 Treatment Note.  
The Board notes that the Veteran has never been diagnosed with eczema.  He has been diagnosed with psoriasis.  See November 2013 Skin Diseases DBQ.  The competent and credible medical evidence does not show any current diagnoses of a skin disorder, except for psoriasis, at any time.  While the Veteran asserts that he has eczema as the result of his active duty service, as a layperson he does not have the medical competence to identify or diagnose these conditions, as this is a complex determination that cannot be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  
As stated above, service connection may only be granted for a current disability.  The Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a skin disorder, other than psoriasis. Accordingly, entitlement to service connection for a skin disorder, other than psoriasis, to include eczema, is denied.
 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. M. Stedman, Associate Counsel 

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