Citation Nr: 1324287 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-08 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin neoplasm, to include as secondary to herbicide exposure. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder other than a skin neoplasm, to include as secondary to herbicide exposure. 3. Entitlement to service connection for hypertension, to include as secondary to the service-connected ischemic heart disease, diabetes mellitus, and posttraumatic stress disorder (PTSD) with depression and to herbicide exposure. 4. Entitlement to service connection for a chronic liver disease, to include as secondary to the service-connected ischemic heart disease and diabetes mellitus and to herbicide exposure. 5. Entitlement to service connection for renal disease, to include as secondary to the service-connected ischemic heart disease and diabetes mellitus and to herbicide exposure. 6. Entitlement to an effective date earlier than September 28, 2009, for the grant of service connection for peripheral neuropathy of the right lower extremity. 7. Entitlement to an effective date earlier than September 28, 2009, for the grant of service connection for peripheral neuropathy of the left lower extremity. 8. Entitlement to an effective date earlier than September 28, 2009, for the grant of service connection for peripheral neuropathy of the right upper extremity. 9. Entitlement to an effective date earlier than September 28, 2009, for the grant of service connection for peripheral neuropathy of the left upper extremity. 10. Entitlement to an effective date earlier than July 28, 2006, for the grant of service connection for PTSD with depression. 11. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 12. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 13. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 14. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. 15. Entitlement to an initial rating in excess of 30 percent for PTSD with depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to June 1969 with additional subsequent service in the United States Army Reserves. This matter comes to the Board of Veterans' Appeals from June 2008 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, and Columbia, South Carolina, respectively. The VA RO in Columbia, South Carolina, currently has jurisdiction of the Veteran's claims file. In September 2011, the Veteran withdrew his request for a Board hearing. Therefore, no further development with regard to a hearing is necessary. The Veteran has explicitly claimed the disorders on appeal for which he is seeking service connection as secondary to herbicide exposure. In a May 2013 written brief presentation with attachments, the representative raised the following theories of entitlement: hypertension secondary to PTSD with depression, and liver disease secondary to diabetes mellitus. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Diabetes mellitus is associated with risk factors of hypertension and impairment of renal function. Steadman's Medical Dictionary (27th ed.) 490. Given that the ischemic heart disease affects a vital organ (see, e.g., 38 C.F.R. § 3.312(c)(4) (2012), the Board will also consider whether the hypertension, chronic liver disease, and kidney disease are secondary to the service-connected ischemic heart disease. The issues of entitlement to service connection for sciatica; a knee disorder, to include avascular necrosis, claimed as secondary to service-connected degenerative disc disease of the lumbar spine, diabetes mellitus, and bilateral peripheral neuropathy of the lower extremities; and entitlement to total rating based on individual unemployability prior to May 5, 2005 (the Veteran has been in receipt of a 100 percent schedular rating since May 5, 2005); have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Board is reopening the issues of entitlement to service connection for a skin neoplasm and a skin disorder other than a skin neoplasm and remanding them. All issues 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 December 1996 rating decision denying entitlement to service connection for skin cancer is final in the absence of a perfected appeal. 2. The evidence associated with the claims file since the December 1996 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin neoplasm. 3. A December 1996 rating decision denying entitlement to service connection for a skin rash is final in the absence of a perfected appeal. 4. The evidence associated with the claims file since the December 1996 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disorder other than a skin neoplasm. CONCLUSIONS OF LAW 1. The December 1996 rating decision denying entitlement to service connection for skin cancer is final. New and material evidence sufficient to reopen the claim of entitlement to service connection for a skin neoplasm has been received. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The December 1996 rating decision denying entitlement to service connection for a skin rash is final. New and material evidence sufficient to reopen the claim of entitlement to service connection for a skin disorder other than a skin neoplasm has been received. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has certain duties to notify and assist the appellant. Given the fact that the Board is reopening the claims of entitlement to service connection for a skin neoplasm and a skin disorder other than a skin neoplasm and remanding the issues for further development, it is not necessary to review whether VA has fully complied with the VCAA. Governing law and regulations A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108 finally disallowed claims may be reopened when new and material evidence is presented or secured with respect to those claims VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, 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 herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases includes chloracne but no other skin disorders. 38 C.F.R. § 3.309(e) (2012). Notably, even if the statutory presumptions are inapplicable, the Federal Circuit has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis A December 1996 rating decision denied claims of entitlement to service connection for skin cancer and a skin rash on the basis that the current disorders were not related to active service. The Veteran did not appeal that denial. At the time of the December 1996 rating decision, the evidence of record consisted of service and private treatment records. The Veteran's service treatment records showed no skin cancer or chronic skin rash. Private treatment records dated in 1996 show that biopsies showed diagnoses of various skin disorder, to include seborrheic keratosis and melanocytic nevi. A melanocytic nevus is any of numerous or acquired skin lesions composed of nests of nevus cells (altered melanocytes). Dorland's Illustrated Medical Dictionary (31st ed) 1293. The evidence added to the record since the December 1996 rating decision includes recent medical evidence showing diagnoses of seborrheic keratosis In the May 2013 written brief presentation, the representative cited medical treatise evidence showing that Agent Blue (a herbicide used in the Republic of Vietnam) contained arsenic and was known to affect the skin. This medical treatise evidence is not cumulative or redundant, and raises a reasonable possibility of substantiating the claims because it pertains to whether a current skin disorder is related to in-service herbicide exposure. Thus, the evidence is considered new and material, and the claims are reopened. 38 U.S.C.A. § 5108. ORDER New and material evidence has been received to reopen a claim of service connection for a skin neoplasm, to include as secondary to herbicide exposure. The appeal is allowed to this extent. New and material evidence has been received to reopen a claim of service connection for a skin disorder other than a skin neoplasm, to include as secondary to herbicide exposure. The appeal is allowed to this extent. REMAND The Veteran has not been provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a secondary basis, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). VA examinations are necessary regarding the disorders for which the Veteran is seeking service connection. The RO has obtained the complete VA treatment records dated from June 2006 to November 2009. The AMC should obtain all VA treatment records from the Columbia VA Medical Center and its associated Spartanburg VA community-based outpatient clinic from November 2009 to the present. The Veteran reported a history of elevated liver enzymes and a surgical history of a deployment of a renal stent in 2002. The AMC should ask the Veteran to identify the medical providers who diagnosed elevated liver enzymes and performed the deployment of a renal stent in 2002 as well as all medical providers of treatment of the disorders for which he is seeking service connection. In a December 2010 rating decision, the RO granted entitlement to bilateral peripheral neuropathy of the upper extremities and bilateral peripheral neuropathy of the lower extremities effective September 28, 2009, and assigned four 10 percent disability ratings effective that same date. The RO also granted service connection for PTSD with depression effective July 28, 2006, and assigned a 30 percent disability rating effective that same date. In a February 2011 VA Form 9, the Veteran expressed disagreement with the effective dates of the grants of service connection for all four peripheral neuropathy disorders and the psychiatric disorder and with the assigned ratings for all four peripheral neuropathy disorders and the psychiatric disorder; however, no statement of the case (SOC) has been issued addressing the claims. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (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.) 1. Provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of secondary service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 2. Ask the Veteran to identify all treatment for his skin disorders, hypertension, chronic liver disease, and renal disease, to include the medical providers who diagnosed elevated liver enzymes and performed the deployment of a renal stent in 2002. Obtain and associate with the claims file all identified records. Regardless of the appellant's response, obtain and associate with the claims file all records from the Columbia VA Medical Center and its associated Spartanburg VA community-based outpatient clinic from November 2009 to the present. 3. Thereafter, the Veteran must be afforded a VA examination(s) to determine the nature and extent of his skin disorders, hypertension, chronic liver disease, and renal disease. The claims folder is to be made available to the examiner(s) to review. The examiner(s) is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of the skin disorders, hypertension, chronic liver disease, and renal disease. For any current skin disorder, to include any current seborrheic keratosis, residuals of treatment of seborrheic keratosis by VA in December 2006, and melanocytic nevus, the examiner must opine on whether there is a 50 percent or better probability that that the skin disorder is related to active service, to include herbicide exposure in general and exposure to arsenic from Agent Blue in particular. A complete rationale for any opinion offered must be provided. The examiner must opine on whether there is a 50 percent or better probability that that the hypertension is related to active service, to include herbicide exposure in general, exposure to arsenic from Agent Blue in particular, and the elevated systolic reading of 130 on the June 1969 separation examination, and whether there is a 50 percent or better probability that that the hypertension was caused or aggravated by the service-connected ischemic heart disease, diabetes mellitus, or PTSD with depression. A complete rationale for any opinion offered must be provided. If any current liver disorder, to include one manifested by elevated liver enzymes, is diagnosed, the examiner must opine on whether there is a 50 percent or better probability that that the liver disorder is related to active service, to include herbicide exposure in general and exposure to arsenic from Agent Blue in particular, and whether there is a 50 percent or better probability that that the liver disorder was caused or aggravated by the service-connected ischemic heart disease or diabetes mellitus. A complete rationale for any opinion offered must be provided. For the proteinuria diagnosed at the May 2008 VA genitourinary examination, the examiner must opine on whether there is a 50 percent or better probability that that the proteinuria is related to active service, to include herbicide exposure in general and exposure to arsenic from Agent Blue in particular, and whether there is a 50 percent or better probability that that the proteinuria was caused or aggravated by the service-connected ischemic heart disease or diabetes mellitus. A complete rationale for any opinion offered must be provided. For the urinary tract infection treated by the VA in March 2008, the examiner must opine on whether the Veteran has any chronic residuals from the urinary tract infection. If the appellant has chronic residuals from the urinary tract infection, the examiner must opine on whether there is a 50 percent or better probability that that the chronic residuals from the urinary tract infection are related to active service, to include herbicide exposure in general and exposure to arsenic from Agent Blue in particular, and whether there is a 50 percent or better probability that that the chronic residuals from the urinary tract infection were caused or aggravated by the service-connected ischemic heart disease or diabetes mellitus. A complete rationale for any opinion offered must be provided. If any current renal disorder other than proteinuria or chronic residuals from the urinary tract infection is diagnosed, the examiner must opine on whether there is a 50 percent or better probability that that the renal disorder is related to active service, to include herbicide exposure in general and exposure to arsenic from Agent Blue in particular, and whether there is a 50 percent or better probability that that the renal disorder was caused or aggravated by the service-connected ischemic heart disease or diabetes mellitus. A complete rationale for any opinion offered must be provided. 4. Issue a SOC to the Veteran and representative addressing the issues of entitlement to an effective date earlier than September 28, 2009, for the grants of service connection for peripheral neuropathy of all four extremities; entitlement to an effective date earlier than July 28, 2006, for the grant of service connection for PTSD with depression; entitlement to initial ratings in excess of 10 percent for peripheral neuropathy of all four extremities; and entitlement to an initial rating in excess of 30 percent for PTSD with depression. The Veteran and his representative must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issues be returned to the Board for further appellate consideration, if otherwise in order. 5. After accomplishing any additional development deemed appropriate, readjudicate the claims on appeal. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs