Citation Nr: 1301346 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-36 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asbestosis. 2. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active military service from May 1955 to July 1974, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2007 and ,10 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The merits of the Veteran's asbestosis claim are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A February 1989 rating decision that denied service connection for asbestos disease on the basis that there was not sufficient medical evidence to establish asbestos disease; the Veteran was notified of this determination but did not appeal. 2. Evidence added to the record since the final February 1989 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for asbestosis. 3. Service connection is in effect for diabetes mellitus, type II. 4. Resolving all reasonable doubt in the Veteran's favor, his peripheral neuropathy of the right and left lower extremities is proximately due to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The February 1989 rating decision service connection for asbestos disease is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for asbestosis has been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for peripheral neuropathy, bilateral lower extremities are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for peripheral neuropathy, bilateral lower extremities and reopens his asbestosis claim and remands it for further development. As such no discussion of VA's duty to notify and assist is necessary. Peripheral neuropathy The Veteran seeks service connection for peripheral neuropathy, which he avers is related to his service-connected diabetes mellitus. Establishing service connection generally requires medical or, in certain circumstances, 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) show no complaints of, treatment for, or a diagnosis of peripheral neuropathy of the bilateral lower extremities. In April 2008 the Veteran was accorded a C&P diabetes mellitus examination. During the examination, the Veteran reported that he felt as though there was a "thick crust" on the soles of his feet and complained mostly of balance. The diagnosis was axonal large fibro-peripheral neuropathy. The examiner found that the etiology was unclear at the time of examination but opined that it was less likely as not caused by or a result of diabetes mellitus, type II. Private medical records include an April 2007 diagnosis plantar flexion axonal form of a large peripheral neuropathy. In May 2007 the Veteran had another diagnosis of neuropathy. The physician opined that the Veteran's large fiber peripheral polyneuropathy was likely due to his diabetes and may have some component from vitamin B12 deficiency at well. In September 2008, the Veteran was accorded a C&P peripheral neuropathy examination. During the examination, the Veteran reported that in 2004, after service, he described what felt like a "big callus" on the bottom of his feet while walking. He had paresthesias and the pain was daily and constant. The diagnosis was axonal large fiber peripheral neuropathy with unknown etiology. The examiner opined that it was less likely than not caused y or a result of the Veteran's service-connected diabetes mellitus, type II. The Veteran has provides a competent and credible account of neurological symptomatology. See Jandreau, 492 F.3d at 1377. He reports generally consistent bilateral lower extremity neurological manifestations, including solely for the purpose of seeking medical care and treatment for his diabetes mellitus. These factors together make the Veteran's account of neurological symptomatology competent credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (VA must consider lay evidence and give it the weight it concludes is appropriate). While the April 2008 and September 2008 VA examiners failed to provide rational for their etiological opinions, this is not fatal to the Veteran's claims. A private medical record dated in May 2007 opined that the Veteran's large fiber peripheral polyneuropathy was likely due to his diabetes. The Board finds the diagnosis and the opinion to sufficiently convey the competent and credible medical assessment that the peripheral polyneuropathy found upon examination is a manifestation of the Veteran's diabetes mellitus. Thus, the Board finds that the May 2007 private medical record provides competent and highly probative medical evidence in favor of the Veteran's claim. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In sum, as the Veteran is service-connected for diabetes mellitus and the Veteran has a current diagnosis of peripheral neuropathy and has provided a competent and credible account of experiencing neurological symptomatology. Further, the most probative medical evidence of record adequately reflects an assessment that the Veteran's diagnosed Veteran's large fiber peripheral polyneuropathy was likely due to his diabetes. As such, service connection is warranted. New and material evidence - asbestosis In a February 1989 rating decision, the RO denied service connection asbestos disease finding insufficient medical evidence to establish asbestos disease as either being incurred or aggravated by the Veteran's military service. The Veteran filed a notice of disagreement in February 1989 and the RO issued a statement of the case in April 1989. The Veteran did not file a substantive appeal nor was new and material evidence received within one year. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103. Even so, applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Veteran filed a claim to reopen in March 2007. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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 received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the February 1989 rating decision included the Veteran's service treatment records (STRs). STRs included an August 1966 diagnosis of bronchitis. Reenlistment examinations dated in November 1963, August 1969, May 1971, and July 1972 mark the Veteran's lungs and chest as normal. Private medical records include a September 1986 diagnosis of mild restrictive disease secondary to asbestos exposure and asbestosis. During the examination, the Veteran reported that he had some asbestos exposure while he worked on jet engines in service. After service, he indicated that he worked for a number of years at a local chemical plain in construction that dealt with insulation of various kinds and also pipes. The conclusion was that the Veteran's pulmonary function was consistent with mild asbestosis and asbestos associated pulmonary fibrosis. An October 1987 note diagnosed the Veteran with mild asbestosis in the past. A January 1989 VA examination revealed no apparent respiratory difficulty. The diagnosis included a history of asbestos exposure. The evidence submitted since the February 1989 rating decision includes VA medical records and private medical records showing a past medical history of asbestosis. A December 2005 chest x-ray revealed chronic periobronchial thickening in the perihilar regions. In December 2006, the Veteran reported that he worked around asbestos as it was being cut and the fibers were in the air. He also reported that he worked in ship yards around asbestos. The diagnosis was definite asbestosis. A December 2007 VA examination found no objective evidence of asbestosis. In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that 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. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board must presume the credibility of this evidence for the purpose of reopening the claim. Justus, 3 Vet. App. 510. The evidence in the private medical records constitute new and material evidence in that it is of such significance that it raises a reasonable possibility of substantiating the Veteran's claim for service connection when considered with previous evidence of record. In this regard, the Board finds that the newly received evidence triggers VA's duty to assist the Veteran in providing him with a VA examination. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly submitted evidence thus raises a reasonable possibility of substantiating the Veteran's claims for service connection. New and material evidence having been found, the Veteran's claim for service connection must be reopened. 38 C.F.R. § 3.156. ORDER Service connection for peripheral neuropathy, bilateral lower extremities is granted. New and material evidence having been received, the petition to reopen the Veteran's claim for service connection for asbestosis is granted and, to that extent only, the appeal is granted. REMAND The Veteran was likely exposed to asbestos during service but it is unclear whether he has asbestosis. In December 2007 the Veteran was accorded a compensation and pension (C&P) respiratory examination. A chest x-ray revealed minimal obstructive, mild restrictive defects. The diagnosis was "no objective evidence of asbestosis." Despite the fact that a diagnosis of asbestosis was not found during the December 2007 examination, the fact remains that during the course of this appeal, the record reflects that he had a diagnosis of asbestosis. See December 2006 private medical record. Significantly, with regard to claims of service connection, the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In other words, the evidence must show either that the Veteran currently has the disability for which benefits are being claimed, or that he had that disability at some time during the pendency of the claim. Here, although evidence of a current diagnosis of asbestosis was not found during the December 2007 VA examination, private medical records dated during the course of the appeal, provide a current diagnosis of asbestosis. Although the examiner found no evidence of a current disability, it is unclear whether he was aware of the diagnosis of asbestosis contained in the private medical record. Accordingly, another examination is necessary to adjudicate this appeal. The Board also observes that the Veteran receives ongoing VA treatment. However, the most recent VA treatment records are current only as of July 2009. A review of the Veteran's Virtual VA eFolder revealed no recent VA treatment records have been associated with the Veteran's file. As there potentially are outstanding VA medical records relevant to the appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be asked to identify any private medical records for treatment of his asbestosis not already associated with the record. The Veteran should also be advised that he may submit additional lay statements from either himself or other individuals who have first-hand knowledge of his asbestosis. Accordingly, the case is REMANDED for the following action: 1. Associate, with the claims folder, physically or electronically, VA medical records pertaining to the Veteran that are dated since July 2009. Any additional records identified by the Veteran should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself, as well as from other individuals who have first-hand knowledge of the onset of his respiratory symptoms, to include asbestosis. He should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed lung disorder, to include as due to asbestos exposure. The claims folder must be made available and reviewed by the examiner. The examiner should diagnose all current lung disorders. Based on a review claims file and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that any diagnosed lung disorders are etiologically related to the Veteran's period of service, to include any exposure to asbestos during service. The examiner should specifically address the diagnoses of asbestosis of record. See December 2006 private medical record. All findings and conclusions must be set forth in a legible report. 4. Then readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs