Citation Nr: 1305284 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-24 135A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for thrombocytopenia claimed as the result of herbicide exposure. 2. Entitlement to service connection for right lower extremity peripheral neuropathy claimed as the result of herbicide exposure. 3. Entitlement to service connection for left lower extremity peripheral neuropathy claimed as the result of herbicide exposure. 4. Entitlement to an increased disability evaluation for the Veteran's right leg varicose veins, currently evaluated as 10 percent disabling. 5. Entitlement to a compensable disability evaluation for the Veteran's gouty arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from October 1953 to April 1974. The Veteran served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, denied service connection for primary thrombocytopenia claimed as the result of herbicide exposure, right lower extremity peripheral neuropathy claimed as the result of herbicide exposure, and left lower extremity peripheral neuropathy claimed as the result of herbicide exposure. In February 2007, the Cleveland, Ohio Regional Office denied increased disability evaluations for the Veteran's right leg varicose veins and gouty arthritis. In June 2009, the Veteran submitted a Motion to Advance on the Docket. In July 2009, the Board granted the Veteran's motion. In July 2010, the Board remanded the Veteran's appeal to the RO for additional action. In November 2011, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in hematology. In April 2012, the requested VHA opinion was incorporated into the record. In May 2012, the Veteran was provided with a copy of the VHA opinion. In May 2012, the Veteran submitted additional argument. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of increased evaluations for the Veteran's right leg varicose veins and his gouty arthritis are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides. 2. Thrombocytopenia was not manifested during active service or for many years thereafter and has not been objectively shown to have originated during active service. 3. Peripheral neuropathy of the right and the left lower extremities was not manifested during active service or for many years thereafter and has not been objectively shown to have originated during active service. CONCLUSIONS OF LAW 1. Thrombocytopenia claimed as the result of herbicide exposure was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2012). 2. Right lower extremity peripheral neuropathy claimed as the result of herbicide exposure was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2012). 3. Left lower extremity peripheral neuropathy claimed as the result of herbicide exposure was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In addressing the Veteran's claims of entitlement to service connection for thrombocytopenia and right and left lower extremity peripheral neuropathy, the Board observes that VA has issued several VCAA notices to the Veteran including a December 2005 notice which informed him of the evidence generally needed to support a claim of entitlement to service connection; what actions he needed to undertake; and how VA would assist him in developing his claims. The December 2005 VCAA notice was issued to the Veteran prior to the September 2006 rating decision from which the instant appeal arises. The Veteran's claims were readjudicated in the June 2007 statement of the case (SOC) and the supplemental statements of the case (SSOC) issued to the Veteran. VA has secured or attempted to secure all relevant documentation to the extent possible. The Board remanded the Veteran's appeal to the RO for additional action including a VA evaluation to ascertain the nature and etiology of his thrombocytopenia and peripheral neuropathy. The Veteran was afforded an August 2010 VA examination for compensation purposes. The examination report and an April 2011 addendum thereto are of record. An April 2012 VHA hematology opinion was requested and incorporated into the record. The Veteran was provided with the VHA opinion and thereafter submitted additional argument. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2010 examination report and the April 2011 addendum thereto reflect that all relevant testing was performed. The April 2012 VHA opinion notes that Veteran's records had been reviewed and provided the requested opinion. The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). All identified and available relevant documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the circumstances of this case, additional efforts to notify or to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The Board will now turn to the merits of the Veteran's claims. II. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Where a veteran was exposed to an herbicide agent during active military, naval, or air service, and either (1) AL amyloidosis, Type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, prostate cancer, respiratory cancers (including cancer of the lung, bronchus, larynx, or trachea), and/or soft-tissue sarcoma become manifest to a degree of 10 percent or more at any time after service or (2) chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) (2012) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e) (2012). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2012). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). A. Thrombocytopenia The Veteran's service treatment records make no reference to thrombocytopenia. The service documentation does state that the Veteran experienced inservice hemorrhagic gastritis. Clinical documentation from the MacDill Air Force Base medical facility reflects that the Veteran was diagnosed with chronic thrombocytopenia. An April 1999 treatment record notes that the Veteran was diagnosed with idiopathic thrombocytopenia with upper gastrointestinal bleeding. A February 2000 treatment record reflects that the Veteran present a history of thrombocytopenia since February 1997. A November 2000 pathology report notes that laboratory studies revealed evidence of early myelodysplastic syndrome (MDS). A June 2002 treatment record states that the Veteran presented a history of "persistent thrombocytopenia x several years." The Veteran was diagnosed with persistent thrombocytopenia. A June 2002 written statement from J. Ball, D.O., relates that the Veteran presented a "six or seven" year history of thrombocytopenia. The Veteran was diagnosed with chronic thrombocytopenia. The doctor opined that there was a "probability that [the Veteran's] thrombocytopenia was a medication-induced phenomenon." In a December 2003 treatment record, Dr. Ball diagnosed the Veteran with "chronic thrombocytopenia secondary to either chronic immune thrombocytopenia versus mild splenic sequestration secondary to liver disease." In a January 2006 statement, the Veteran advanced that his thrombocytopenia was possibly due to his presumed inservice Agent Orange exposure. At an August 2006 VA examination for compensation purposes, the Veteran presented a history of primary thrombocytopenia of "six to seven" years' duration. He was diagnosed with primary thrombocytopenia. The examiner commented that "this condition is primary, meaning there is no known etiology for it" and "is not related to any other specific condition the Veteran has" including "to the gastric surgery or basal cell carcinoma." In his August 2007 Appeal to the Board (VA Form 9), the Veteran maintained that his thrombocytopenia was related to stomach bleeding which he experienced during active duty. At an August 2010 VA examination for compensation purposes, the examiner concluded that: The patient's thrombocytopenia is not related to events that occurred in military service. The patient was diagnosed with thrombocytopenia in 1997. An April 2011 addendum to the August 2010 VA examination report clarifies that: The patient's thrombocytopenia is not secondary to Agent Orange exposure. There are no confirming studies linking thrombocytopenia as being related to Agent Orange exposure. The patient's bone marrow biopsy in 2001 revealed a normal platelet production. The April 2012 VHA opinion notes that the Veteran's record had been reviewed. The physician opined that: Review of the literature does not indicate any known or established interaction between Agent Orange and the development of MDS at this time. MDS may be associated with the use of certain chemotherapy agents as well as exposures to other types of chemicals, none of which this patient is noted to have per the existing medical records. Therefore, my assessment is that 1) this does represent a chronic thrombocytopenia, 2) the most likely etiology is that this is a primary underlying MDS not associated with Agent Orange of (sic) other known exposures, and 3) this is unlikely to be associated with the Veteran's active service. The Veteran asserts that his chronic primary thrombocytopenia is related to either his herbicide exposure while in the Republic of Vietnam and/or his inservice gastrointestinal bleeding. The Veteran served in the Republic of Vietnam and therefore is presumed to have been exposed to herbicides. The Veteran's service treatment records make no reference to thrombocytopenia. The first clinical documentation of the claimed disorder is dated in 1997, some 24 years after service separation. The Veteran's treating Air Force, VA, and private physicians have either attributed the Veteran's thrombocytopenia variously to "a medication-induced phenomenon;" "chronic immune thrombocytopenia versus mild splenic sequestration secondary to liver disease;" or MDS or found it to be of primary or idiopathic (unknown) etiology. No competent medical professional has advanced a relationship between the disability and the Veteran's presumed inservice herbicide exposure, inservice gastrointestinal bleeding, or active service in general. The Veteran asserts that his chronic thrombocytopenia is related to either his inservice gastrointestinal bleeding or presumed herbicide exposure. The Board finds that the Veteran is not competent as a layman to offer an opinion concerning the etiology of his thrombocytopenia. He has not offered any medical qualifications. The question of the etiology of such a disability is not amenable to observation alone and is too complex to be addressed by a layperson. Such a relationship is the subject of extensive research by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. As the Veteran's chronic thrombocytopenia was not objectively shown during active service or for many years thereafter and given the absence of competent evidence establishing a relationship between that disorder and active service, the Board concludes that service connection is not warranted. B. Peripheral Neuropathy The Veteran's service treatment records doe not refer to peripheral neuropathy of the lower extremities. The service clinical documentation does reflect treatment for lower extremity pain associated with the Veteran's service-connected gouty arthritis and varicose veins. An October 2005 VA treatment record advances an assessment of "peripheral neuropathy symptoms - has B12 deficiency - concern for diabetes." In a January 2006 written statement, the Veteran advanced that his peripheral neuropathy was possibly due to his presumed Agent Orange exposure. In a March 2006 statement, the Veteran reported that his peripheral neuropathy "started in 1973" while he was stationed at Chanute Air Force Base. In a June 2006 written statement, the Veteran conveyed that he was seen for peripheral neuropathy during active service. At the August 2006 VA examination for compensation purposes, the Veteran presented a history of bilateral foot numbness since 1970. The Veteran was diagnosed with sensory peripheral neuropathy of the feet. At the August 2010 VA examination, the Veteran was diagnosed with bilateral lower extremity peripheral neuropathy. The examiner commented that: The patient's bilateral peripheral neuropathy is not related to events that occurred in military service. The patient was not diagnosed in military service. The peripheral neuropathy was not aggravated by military service and is not related to Agent Orange exposure as per the Government's guidelines. Peripheral neuropathy of the lower extremities was not objectively shown during active service or for many years thereafter. No competent medical professional has advanced a relationship between the Veteran's peripheral neuropathy and active service including his presumed herbicide exposure. The Veteran asserts that service connection is warranted for peripheral neuropathy of the lower extremities as he was treated for the claimed disorder during active service. The Veteran is competent to state that he experienced lower extremity pain and other symptoms during active service and at any time thereafter. However, he is not competent to attribute such symptoms to a specific diagnosis. The question of the etiology of such a disability is not amenable to observation alone and is too complex to be addressed by a layperson. Indeed, the Veteran's inservice lower extremity complaints were shown to be manifestations of his service-connected right leg varicose veins and gouty arthritis. The Board has considered the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. As the Veteran's right and left lower extremity peripheral neuropathy was not objectively shown during active service or for many years thereafter and given the absence of competent evidence establishing a relationship between that disorder and active service, the Board concludes that service connection is not warranted. ORDER Service connection for thrombocytopenia claimed as the result of herbicide exposure is denied. Service connection for right lower extremity peripheral neuropathy claimed as the result of herbicide exposure is denied. Service connection for left lower extremity peripheral neuropathy claimed as the result of herbicide exposure is denied. REMAND In reviewing the report of the August 2010 VA examination for compensation purposes, the Board notes that the examiner advanced apparently conflicting findings as to the Veteran's right leg varicose veins symptomatology. The examining VA physician's assistant concurrently found that the Veteran exhibited "present" and "persistent" edema" and "no" edema. The examiner made no findings as to whether the Veteran's right leg edema, if any, was relieved by elevation of the extremity. In his August 2007 Appeal to the Board (VA Form 9), the Veteran reported that he had experienced "regular flare-ups and pain" associated with his gout and "increased attacks of gout." The August 2010 examination report does not address the Veteran's statements as to his worsening gout symptomatology. Indeed, the examiner commented to the contrary that the Veteran's "last episode [of gout] was approximately 1978." VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparent conflicting and incomplete findings in the most recent VA examination and the examiner's failure to fully address the Veteran's relevant history, the Board finds that further VA evaluation would be helpful in resolving the issues raised by the instant appeal. Clinical documentation dated after April 2011 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his service-connected right leg varicose veins and gouty arthritis after April 2011, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record all VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after April 2011. 3. Then schedule the Veteran for a VA examination for compensation purposes in order to assist in determining the current nature and severity of his right leg varicose veins. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should further express an opinion as to the impact of the Veteran's right leg varicose veins upon his vocational pursuits. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Then schedule the Veteran for a VA orthopedic examination for compensation purposes in order to assist in determining the current nature and severity of his gouty arthritis. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should further identify the limitation of activity imposed by the Veteran's gouty arthritis with a full description of the effect of the disability upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. The examiner should express an opinion as to the impact of the Veteran's gouty arthritis upon his vocational pursuits. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in compliance with the directives of this Remand. The reports should be returned to the examiners if they are deficient in any manner. 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 7. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs