Citation Nr: 1524682	
Decision Date: 06/09/15    Archive Date: 06/19/15

DOCKET NO.  10-06 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for urticarial rash of the body, chloracne and porphyria cutanea tarda, and if so, whether service connection is warranted.
 
2.  Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected diabetes mellitus.

3.  Entitlement to service connection for a muscle disorder, claimed as muscle loss, to include as secondary to service-connected diabetes mellitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

A. Fagan, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from March 1967 to June 1969.  The Veteran had service in the Republic of Vietnam from December 1967 to January 1969, for which he received a Bronze Star with "V" device, a Presidential Unit Citation, and a Combat Action Ribbon, among other awards.

These matters come before the Board of Veterans' Appeals (the Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2013, the Board reopened the peripheral neuropathy service connection claim and remanded the claim on the merits, along with the issue of whether new and material has been submitted to reopen the skin disorder service claim.  Those matters along with the muscle loss service connection claim were again remanded by the Board in August 2014.
 
The issue of service connection for peripheral neuropathy and muscle loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An August 1999 Board decision denied service connection for a skin disability.  The Veteran did not appeal that decision and it is final. 

2.  In May 2002 and May 2006 rating decisions, the RO declined to reopen the previously denied claim of service connection for a skin disability.  The Veteran did not appeal those decisions and no relevant evidence was received within one year of the decisions; the decisions are final.

3.  The evidence submitted since last final decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for a skin disability.

4.  Resolving doubt in his favor, the Veteran's skin disorder was incurred in service.


CONCLUSIONS OF LAW

1.  New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for a skin disorder is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).

2.  The criteria for service connection for a skin disorder have been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Skin Disorder

Initially, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claim for service connection for a skin disorder.  Historically, that claim was denied in an August 1999 Board decision because the Board found that the claim was not well grounded because there was no nexus between any skin disorder and service, to include herbicide exposure therein.  The Veteran did not appeal that decision and the August 1999 Board decision became final.  38 U.S.C.A. § 7266; 38 C.F.R. § 20.1100.
Thereafter, pursuant to requests to reopen, the RO issued rating decisions in May 2002 and May 2006 finding that new and material evidence had not been received to reopen a claim of entitlement to service connection for a skin disorder.  Specifically, the RO found in May 2002 that no evidence had been submitted showing a link between a chronic skin disorder and herbicide exposure in service.  The May 2006 decision is less clear as to the reason for the RO's decision not to reopen, as the decision simply states that evidence submitted "does not relate to an unestablished fact" or "raise a reasonable possibility of substantiating the claim."  Those decisions became final because neither a notice of disagreement nor new and material evidence was submitted within one year of the date on which notice of each decision was issued.  See 38 C.F.R. § 20.1103 (2014); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). 

In March 2008, the Veteran filed a claim to reopen.  The Board finds that new evidence has been added to the claims file which is material to the Veteran's claim.  In December 2012, during VA treatment, the Veteran presented for treatment for an itchy rash and stated that he had experienced a rash ever since he came back from Vietnam.  At that time, the VA provider noted that he had been treated in the past for eczema without success and that other diagnoses should be considered, including possible psoriasis, lupus, and T cell lymphoma.  As the December 2012 VA treatment note was not available at the time of the May 2006 denial, it is new.  Moreover, when presumed credible, the new evidence suggests a nexus between a current skin disorder and service; thus, it is also material.  Accordingly, the claim is reopened.

Next, the Board finds that service connection for a skin disorder is warranted.  The Veteran has provided competent lay testimony that he experienced a rash in service, described as jungle rot.  A rash is an observable condition of which the Veteran is competent to provide lay testimony.  Barr v. Nicholson, 21 Vet. App. 303, 305 (2007).  Additionally, service personnel records show that the Veteran served in Vietnam and received not only a Combat Action Ribbon but a Bronze Star with "V" device for valor.  Therefore, as his report of a rash in service is consistent with the circumstances of his service, it is credible and sufficient to establish in-service incurrence.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  
Furthermore, the Veteran has provided competent and credible lay testimony of a persistent and chronic rash since service, and his reports are supported by VA and private medical records showing treatment for a rash since at least as early as September 1985.  Furthermore, the Veteran has provided competent testimony that he received treatment for the rash since the 1970s, and the records dated in September 1985 and October 1985 suggest that the Veteran had received prior treatment for a rash.  During a January 1991 visit, the Veteran reported a history of a rash on his feet on and off for 15 years, placing an onset of the rash in the 1970s.  In a December 1997 Social Security Administration evaluation, the Veteran reported a rash since the 1970s that was associated with nerves, and a March 1990 VA Agent Orange evaluation showed an assessment of undiagnosed neuropsychiatric disorder.  The record shows that the Veteran has been treated for his rash with hydroxyzine, which research shows is used to treat anxiety disorders and allergic skin conditions.  Recently in a February 2013 VA treatment entry, the Veteran reported a long-standing rash that was assessed as dermatitis. 

The Board finds the Veteran's reports of the in-service onset of his rash and its continuation thereafter both competent and credible.  Moreover, there are medical records documenting treatment for skin disorders since at least 1985 to the present, and he has a current diagnosis of a skin disorder.  Thus, the Board finds that service connection for a skin disorder is warranted.


ORDER

New and material evidence having been submitted, the claim for service connection for a skin disorder is reopened.

Service connection for a skin disorder is granted.





REMAND

Peripheral Neuropathy

Turning to peripheral neuropathy, the Board observes that the Veteran has been service connected for diabetes mellitus effective December 26, 2000.  Additionally, private treatment records show a diagnosis of and treatment for diabetic neuropathy as early as January 2001, with ongoing treatment with Neurontin/Gabapentin.  He also demonstrated abnormal sensory findings as early as April 1999, and in November 2000, despite improvement on a nerve conduction study, the Veteran reported continuing tingling sensations in his extremities, especially at night that "could be diabetic neuropathy per other idiopathic neuropathy."  Current VA and private treatment records show continued complaints of numbness, tingling, and paresthesias.  

For example, in February 2007, the Veteran inquired from VA about increase in Neurontin because of a lot of trouble with tingling and neuropathy at night.  In February 2008, the Veteran again reported numbness and tingling in his hands and feet and was assessed with paresthesias.  Also noteworthy is a June 2007 VA podiatrist's assessment of deep peroneal neuritis (in the foot) secondary to diabetic neuropathy, which supports the earlier private diagnosis of diabetic neuropathy.  Subsequent VA treatment records also show that the Veteran continued to take Gabapentin/Neurontin as recently as 2011.

The Board is cognizant that the record shows periodic neuropathic treatment for post-herpetic neuralgia since September 2010.  However, the private treatment records show diagnosis of and treatment for diabetic neuropathy prior to that diagnosis and treatment, including as early as 2001.  

The Veteran was afforded a June 2013 VA examination that determined that the Veteran does not have peripheral neuropathy.  However, that examination is inadequate upon which to base a determination.  For example, the examiner cited a review of records and stated that the Veteran has never been diagnosed with peripheral neuropathy.  Such a statement is directly contradicted by the earlier private treatment records discussed above showing ongoing treatment for diabetic neuropathy, and VA treatment records which show a history of peripheral neuropathy as early as July 2004.  Indeed, a private treatment record dated in January 1986 appears to assess peripheral neuropathy, suggesting that the Veteran's condition may have been present soon after service.  Similarly, a prior November 2005 VA examiner declined to diagnose peripheral neuropathy while simultaneously discussing, without reconciliation, the Veteran's reports of tingling all over his body, which was being helped by Gabapentin (Neurontin), and noting decreased sensation to pinprick in the left foot.  Accordingly, a remand is necessary for a VA examination that full considers the evidence of record.

Muscle Disorder

The Veteran contends that he suffers from a muscle disorder that is related to service, to include herbicide exposure therein.  VA and private treatment records show longstanding complaints of muscle pain and weakness, and an assessment of episodic upper extremity weakness in July 2005.  In July 2005, the Veteran attributed his muscle weakness to diabetes mellitus.  During February 2008 VA treatment, the Veteran reported continued muscle weakness, and in February 2014 he reported muscle loss in his upper and lower extremities.  Ongoing VA and private medical records appear to show generally full muscle strength on examination, and the Board also observes that during October 2000 VA treatment, the Veteran reported that his father has a muscle disorder from which he rapidly deteriorated and was unable to get out of bed or move secondary to it.  Nevertheless, the Veteran has not yet been afforded a VA examination to address his claimed muscle disorder, and one should be provided on remand.

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).



Accordingly, the case is REMANDED for the following actions:

1.  Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his claimed peripheral neuropathy and muscle disorder.  After securing any necessary releases, the AOJ should request any records identified which are not duplicates of those contained in the claims file.  If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 

Ongoing VA treatment notes should also be obtained, to include those dated from July 2014 to the present.

2.  After the above development is completed, schedule the Veteran for VA examination(s) to evaluate his claims for peripheral neuropathy and a muscle disorder, to include as secondary to service-connected diabetes mellitus type II.  The examiner should review the record in its entirety and should provide the following:

The examiner should evaluate the Veteran's bilateral upper and lower extremities, and provide any diagnoses related to his complaints of tingling, muscle loss, and weakness.

State whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any current (since 2008) diagnosis of the bilateral upper or lower extremities that arose during service or is otherwise related to service, to include herbicide exposure therein.  

State whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any current (since 2008) diagnosis of the bilateral upper or lower extremities that was caused by or is aggravated (permanently worsened beyond the natural progression) by service-connected diabetes mellitus.  If aggravation is found, the examiner must attempt to establish a baseline level of severity of any bilateral upper or lower extremity disorder, prior to aggravation by service-connected diabetes mellitus type II.

The examiner should explain the reasons for the opinions provided.  If the examiner cannot provide an opinion without resort to speculation, it is essential that the examiner explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.).

3.  After the above and any other necessary development has been completed, the record should again be reviewed.  If any benefit sought on appeal remains denied, then the Veteran should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).






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These claims 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 2014).




______________________________________________
S. HENEKS
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs