Citation Nr: 1330933 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-23 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of elevated arsenic levels. 2. Entitlement to service connection for residuals of elevated arsenic levels. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied entitlement to service connection for residuals of elevated arsenic levels in the blood and entitlement to TDIU. Jurisdiction over the claims file is currently held by the RO in Des Moines, Iowa. In January 2009, the Veteran testified at a hearing before a hearing officer at the RO. A transcript of the hearing is of record. The Veteran's appeal previously included a claim for entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). Because the Veteran is in receipt for a total 100 percent schedular rating for his service-connected psychiatric disorder, the claim for a TDIU is rendered moot. The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). In the Bradley case, the Court of Appeals for Veterans Claims (Court) held that a TDIU rating could be warranted in addition to a schedular 100 percent evaluation, where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect, explaining that under such circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Unlike the situation in Bradley, however, the Veteran in this case is only receiving compensation for one disability, which is the psychiatric disorder for which a 100 percent scheduler rating has been assigned. Therefore, Bradley is distinguishably from the instant case, and the award of a 100 percent scheduler evaluation does render the TDIU claim moot. FINDINGS OF FACT 1. The claim for entitlement to service connection for residuals of elevated arsenic levels was initially denied in an October 1977 rating decision. 2. The evidence received since the October 1977 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. The Veteran's memory loss, neurological problems, neck and back pain, were not present in service or until years thereafter and are not etiologically related to any incident of active military service, to include an incident of elevated arsenic levels. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for entitlement to service connection for residuals of elevated arsenic levels. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. Residuals of elevated arsenic levels were not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran's claim for entitlement to service connection for a disability claimed as "arsenic blood poisoning" was initially denied in an October 1977 rating decision. The RO denied the claim as the Veteran failed to report for a scheduled VA examination and there was no evidence of the claimed disability. The Veteran did not disagree with the denial of his claim and the October 1977 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence received since the October 1977 denial of the claim includes VA treatment records from the Iowa City VA Medical Center (VAMC) demonstrating diagnoses of dissociative amnesia, cervical stenosis, residuals of a thoracic spine compression fracture, and left ulnar neuropathy and carpal tunnel syndrome. The Veteran also testified in January 2009 that he was told by VA physicians in 1977 that he incurred brain damage and a central nervous system condition due to arsenic poisoning during active duty service. The Veteran's testimony is considered credible for the purposes of determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran's testimony and the VA treatment records are new as they were not previously considered and material as they relate to an element of the claim that was previously lacking-a current disability related to elevated arsenic levels during active service. Therefore, reopening of the previously denied claim for entitlement to service connection is warranted. Reopened Service Connection Claim The Veteran contends that service connection is warranted for various chronic disabilities as they were incurred due to an episode of arsenic poisoning during active duty service. In various statements to VA, he has specifically reported incurring memory loss, a chronic disability of the central nervous system, and neck, and back pain due to elevated arsenic levels. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)(holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). 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. 38 C.F.R. § 3.303(d). The record establishes the presence of current disabilities. Treatment records from the Iowa City VAMC document complaints of memory loss since December 2004 when the Veteran was hospitalized for dissociative amnesia and severe memory deficits. The diagnosis of dissociative amnesia was confirmed during a May 2007 neuropsychology consultation. The Veteran has also reported neck and back pain throughout the claims period and radiology reports document cervical spondylosis, stenosis, and disc bulges along with a past T5 compression fracture of the spine. With respect to the Veteran's contentions regarding a central nervous system disability, he has complained of left upper extremity numbness and was diagnosed with left ulnar neuropathy and carpal tunnel syndrome following a nerve conduction test in March 2008. The Board therefore finds that the first element of service connection-a current disability-is demonstrated. Service records also confirm the presence of an in-service injury. In April 1977, the Veteran was hospitalized at Camp Pendleton, California with complaints of severe abdominal pain. Physical examination and laboratory testing was normal, and the Veteran was discharged three weeks later with diagnoses of anemia and abdominal pain of an unknown etiology. The Veteran continued to complain of abdominal pain and was admitted to a second naval hospital in San Diego, California on May 12, 1977. He was diagnosed with functional bowel disease not responsive to therapy and a psychiatric consult was recommended. Several laboratory tests were pending at the time of the Veteran's discharge on May 25, 1977, including an arsenic test. A military psychiatric consultation resulted in a diagnosis of an adjustment reaction, and a May 31, 1977 Medical Board recommended the Veteran's discharge due to psychogenic spastic colitis. The Veteran was discharged on June 6, 1977, and a week later he was contacted by letter and informed that his arsenic test from the San Diego naval hospital indicated elevated levels of 11mcg/100mL. Although the letter explicitly noted that the Veteran's gastrointestinal problems were not due to elevated arsenic levels, the presence of the increased arsenic in the Veteran's blood constitutes an in-service injury. Thus, the second element of service connection is met. Regarding the third element of service connection, a nexus between the Veteran's current disabilities and the in-service injury, the Board notes that service treatment records do not indicate such a link. As noted above, the Veteran's service records only document findings related to bowel disease and an already service-connected psychiatric disorder. There are no findings or complaints of neurological or orthopedic disabilities, and the June 1977 letter from the San Diego naval hospital clearly indicates that the Veteran's abdominal condition was not related to the episode of elevated arsenic levels. There is also no evidence of medical findings related to the Veteran's current claim until years after active duty service. After he was notified of the increased arsenic levels in his blood in June 1977, the Veteran was seen by his private physician who advised him to seek treatment at the local VA hospital. He was examined at a VA facility in June 1977 and no neurological or orthopedic abnormalities were identified; the only diagnosis was a psychogenic functional bowel disease. Although the Veteran testified in January 2009 that he was told by the June 1977 VA physician that he incurred brain and central nervous damage due to arsenic, review of the actual treatment and examination records shows that the examining physician did not identify any brain or central nervous disabilities and did not attribute any findings to the recent episode of increased arsenic in the Veteran's blood. The earliest objective evidence of complaints similar to those attributed by the Veteran to arsenic poisoning date from January 1998, more than 20 years after service, when the Veteran was hospitalized at the Iowa City VAMC for left face numbness and was diagnosed with cranial nerve V palsy of unknown etiology. The absence of any clinical evidence of the claimed disability for years after service weighs the evidence against a finding that the Veteran's current condition was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no competent medical evidence in support of the Veteran's claim. None of his VA physicians have attributed his current disabilities to elevated arsenic levels during service. In fact, other etiologies of the claimed neurological and orthopedic deficits have been identified. The Veteran was involved in a motor vehicle accident in 1995, and his VA physicians have consistently attributed his neck and back pain to this incident. As noted above, the Veteran has been diagnosed with cervical spondylosis and a compression fracture of the thoracic spine and his doctors have dated the onset of these conditions to the post-service motor vehicle accident. Additionally, with respect to the Veteran's complaints regarding memory loss and dissociative amnesia, this condition is related to the service-connected depressive, somatoform, and cognitive disorders. The Veteran has consistently reported memory loss during psychiatric treatment at the Iowa City VAMC and a January 2009 VA psychiatric examiner specifically found that the Veteran's impaired memory was associated with his cognitive disorder. The record also contains two VA medical opinions weighing against the claim for service connection. In February 2007, a VA examiner found that the Veteran's cognitive disorder, neck and back pain, and any other associated conditions were not related to arsenic poisoning. The examiner noted that arsenic poisoning was associated with an increased risk of certain cancers, vascular disease, anemia, gangrene, diabetes, or peripheral neuropathy. It was not associated with memory loss, spinal muscular or nerve conditions and was therefore not the likely cause of the Veteran's complaints. A second VA medical opinion was obtained in February 2009. After a thorough review of the Veteran's claims file, the February 2009 VA examiner concluded that there was no clear cut evidence the Veteran actually incurred "arsenic poisoning" during service. There was also no evidence his neurological symptoms (including neuropathy and carpal tunnel syndrome) were related to the mildly elevated arsenic level identified in May 1977. In support of the opinion, the examiner included a lengthy discussion of the laboratory and physical effects and signs of arsenic poisoning-including a notation that arsenic toxicity usually occurred with levels in the 100+ range, as opposed to the Veteran's finding of 11mcg/mL in 1977. The examiner also stated that peripheral neuropathy and other conditions related to arsenic presented early following exposure, ranging from three days to several weeks. In this case, several decades elapsed before the Veteran demonstrated any of his claimed symptoms. The VA examiner's opinion was based on an accurate presentation of the facts and was accompanied by a well-reasoned and well-supported rationale. It is therefore entitled to significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has also considered the Veteran's testimony connecting his claimed conditions to elevated arsenic levels during service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Furthermore, the Veteran has not reported a history of continuing symptoms since service. As noted above, treatment records do not document any complaints of neurological or orthopedic symptoms until many years after the Veteran's discharge from service. The Board discusses the Veteran's reported symptoms in the context of using lay evidence to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d), but not 38 C.F.R. § 3.303(b). See Davidson, 581 F.3d 1313; Walker, 708 F.3d at 1331. In sum, the post-service medical evidence of record shows that the first evidence of the claimed residuals of elevated arsenic levels was years after the Veteran's separation from active duty service. In addition, there is no medical evidence that the Veteran's claimed disabilities are related to military service and the record contains two medical opinions weighing against the claim. Therefore, the evidence is against a nexus between the claimed disability and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER New and material evidence having been submitted, reopening of the claim for entitlement to service connection for residuals of elevated arsenic levels is granted. Entitlement to service connection for residuals of elevated arsenic levels is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs