Citation Nr: 1339638 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-37 505 ) 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 service connection for right upper extremity peripheral neuropathy, claimed as due to herbicide exposure. 2. Entitlement to service connection for right upper extremity peripheral neuropathy, claimed as due to herbicide exposure. 3. Whether new and material evidence has been received to reopen service connection for left upper extremity peripheral neuropathy, claimed as due to herbicide exposure. 4. Entitlement to service connection for left upper extremity peripheral neuropathy, claimed as due to herbicide exposure. 5. Whether new and material evidence has been received to reopen service connection for right lower extremity peripheral neuropathy, claimed as due to herbicide exposure. 6. Entitlement to service connection for right lower extremity peripheral neuropathy, claimed as due to herbicide exposure. 7. Whether new and material evidence has been received to reopen service connection for left lower extremity peripheral neuropathy, claimed as due to herbicide exposure. 8. Entitlement to service connection for left lower extremity peripheral neuropathy, claimed as due to herbicide exposure. 9. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for anosmia (loss of sense of smell). 10. Entitlement to service connection for burning sensation on the left side of the face, claimed as due to herbicide exposure. 11. Entitlement to service connection for burning sensation of the upper body, claimed as due to herbicide exposure. 12. Entitlement to service connection for a sore to the right leg, claimed as due to herbicide exposure. 13. Entitlement to service connection for a sore to the left leg, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1966 to August 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision rendered by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). That decision addressed eighteen issues; however, in his Notice of Disagreement, the Veteran limited his appeal to the issues listed on the title page above. The claims of entitlement to service connection for right upper, left upper, right lower, and left lower peripheral neuropathy and the claims for burning sensation of the left side of the face and of the upper body 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. Finally, even though the Board is denying the claim for compensation under 38 U.S.C.A. § 1151 for anosmia, the evidence indicates that anosmia may be secondary to service-connected PTSD. Although not specifically claimed by the Veteran, the Board therefore infers a claim for service connection for anosmia as secondary to service-connected PTSD. The RO is advised that separately diagnosed psychiatric conditions can be service connected, but cannot be separately rated unless they result in different manifestations. Amberman v. Shinseki 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). This issue must be developed and adjudicated by the RO in the first instance. As such, it is referred to the RO for further action. FINDINGS OF FACT 1. In an unappealed January 2003 decision, the RO denied a claim for service connection for peripheral neuropathy. 2. Evidence received since the January 2003 decision that denied service connection for peripheral neuropathy is new and material, relates to an unestablished fact that was absent at the time of the January 2003 decision, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's anosmia is not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment, or by an unforeseen event. 4. The Veteran did not sustain an injury or disease of leg sores during active military service. 5. The Veteran does not have a chronic disability manifested by sores to the right or left legs. CONCLUSIONS OF LAW 1. The January 2003 decision that denied service connection for peripheral neuropathy became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. The criteria to reopen service connection for peripheral neuropathy affecting the bilateral upper and lower extremities have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for anosmia, claimed to have resulted from VA treatment beginning in 2005, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2013). 4. The criteria for service connection for sores to the right leg are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 5. The criteria for service connection for sores to the left leg are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). VA is required to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. Here, as it pertains to the claims to reopen service connection for peripheral neuropathy affecting the bilateral upper and lower extremities, the Board is reopening the claims; thus, there is no need to discuss whether VA has provided sufficient notice or assistance. In letters sent in March 2007 and March 2008, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claims for service connection for sores on the legs, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The letters included provisions describing how VA assigns disability ratings and effective dates should the underlying claim be granted. A November 2007 letter addressed the claim for compensation under 38 U.S.C. § 1151. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, records from the Social Security Administration (SSA), and the Veteran's written assertions. In addition, the Veteran was afforded a VA examination to address the claim for compensation under 38 U.S.C. § 1151. The examination was adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting diagnoses and rationales were consistent with the examination and the record. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to claims for service connection for sores to the legs. The Board finds that a VA examination is not necessary in order to decide these claims. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). In this decision, the Board has found no in-service injury or disease of the legs in service. The Veteran's service treatment records are devoid of any complaints or treatment for sores to the legs and the evidence does not show that he has a current disability manifested by sores to the legs. As there is no in-service injury or disease to which any current disability, even if present, could be related, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). Also, the competent medical evidence of record is sufficient to decide this claim. The Veteran reported that he receives VA treatment for his medical conditions. Numerous VA treatment records are of record. They include orthopedic and dermatologic findings documenting any current disability to the legs. Because there are sufficient medical findings of record, remanding this matter would only serve to delay the adjudication of the claim, with no benefit flowing to the Veteran. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Reopening Service Connection for Peripheral Neuropathy The Veteran contends that peripheral neuropathy of the extremities is due to exposure to herbicide agents while on active duty. For ease of discussion, the Board has grouped the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities. Previously, in an unappealed January 2003 decision, the RO denied entitlement to service connection for peripheral neuropathy. The Veteran did not initiate an appeal of the decision or otherwise submit new and material evidence within a year of the decision. Because that decision became final, the claim may not be reopened unless new and material evidence is received. See 38 U.S.C.A. §§ 5108, 7105 (West 2002). With claims to reopen, "new" evidence is defined as evidence not previously submitted to agency decision makers; and "material" evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. In the January 2003 decision, the RO found that the Veteran had a current disability, namely, a three-year history of peripheral neuropathy. The RO found, however, that the current disability was not associated with the Veteran's active military service or with his presumed exposure to herbicide agents during service in Vietnam. The RO further found no evidence of peripheral neuropathy in service or within the first post-service year. As to the etiology of the current disability, the January 2003 RO decision relied on an October 2002 VA examination report in which the examiner concluded that the Veteran's symptoms were consistent with cervical cord demyelinating disease and bilateral sensory neuropathy. The VA examiner stated that he was not aware of Agent Orange causing focal central nervous system demylination. As discussed, the January 2003 decision became final. Since that decision, the Veteran has submitted numerous VA and private treatment records. Among the records submitted is a November 2003 VA progress note which suggests a relationship between peripheral neuropathy and service-connected post-traumatic stress disorder (PTSD). Specifically, the physician stated that he had a "strong notion" that the Veteran's peripheral neuropathy was "related to or triggered by anxiety and PTSD." In addition, an August 2005 VA psychiatry attending note indicated that the "connection of his mysterious burning pains in his upper extremities (and entire body) and his PTSD is evident." For purposes of reopening, the Board must presume that this evidence is credible. Because the evidence suggests a relationship between peripheral neuropathy and a service-connected disability (PTSD), it relates to an unestablished fact that was absent at the time of the prior final denial. As such, the Board finds that new and material evidence has been received and the criteria to reopen service connection for peripheral neuropathy have been met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 1151 Claim The Veteran contends that he lost his sense of smell as a result of psychiatric treatment rendered at a VA facility in New York in 2005-2007. In a July 2007 statement, he reported that he was asked to "repeat the incidents which occurred in Vietnam over and over" and, as a result, he lost his ability to smell. In a March 2008 statement, he reported that treatment occurred from April 2005 to April 2007 at a VA facility at East 23rd Street. Compensation may be paid for a qualifying additional disability not the result of a veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the veteran when the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable. 38 U.S.C.A. § 1151. Benefits under 38 U.S.C.A. § 1151(a) for additional disability due to hospital care, medical or surgical treatment, or examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. In determining whether additional disability exists, a veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to the condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the additional disability. See 38 C.F.R. § 3.361(c)(1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(d). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 (2012). 38 C.F.R. § 3.361(d)(2) (2013). The Board has carefully considered the Veteran's contentions but finds that the criteria for compensation under 38 U.S.C.A. § 1151 have not been met. Here, the evidence includes VA psychiatric treatment at a VA facility in New York during 2005-2007. It also reveals the Veteran's reports that he lost his sense of smell. For instance, during VA psychiatric treatment in November 2005, the Veteran reported that he was concerned that he had lost his sense of smell in the past few months. He stated that he was more sad and irritable - symptoms which he attributed to therapy sessions at a Harlem Vet Center. Testing for loss of sense of smell was conducted in December 2005 and January 2006. An MRI did not reveal any brain tumors but did show minimal microvascular ischemia. Even assuming the Veteran has a disability manifested by loss of sense of smell, the evidence does not show that VA treatment actually caused the Veteran's loss of sense of smell, nor does it show that VA was in any way at fault in rendering treatment for PTSD. Finally, the evidence does not show that the proximate cause of anosmia is due to an event not reasonably foreseeable. In making this determination, the Board relies upon the only medical opinion addressing the Veteran's loss of smell. Namely, in the December 2009 opinion, a VA physician who did not participate in the Veteran's care reviewed the claims file and conducted an interview with the Veteran. The pertinent diagnosis was conversion disorder, which the examiner noted was a disorder whereby psychological symptoms affect voluntary motor or sensory functions. Significantly, the VA examiner in December 2009 opined that loss of sense of smell was not likely caused by VA treatment; that such was not likely due to any carelessness or negligence on the part of VA in rendering psychiatric treatment; nor did VA fail to exercise care that would be expected of a reasonable health care provider. See generally Trafter v. Shinseki, 26 Vet. App. 267 (2013) (describing the requirement for an adequate medical opinion in a claim for compensation under 38 U.S.C.A. § 1151). In describing the Veteran's conversion disorder, the examiner reviewed the VA treatment records but did not find that the cause or the proximate cause of the conversion disorder was due to VA treatment. Because the conversion disorder disability was not caused by VA treatment, the Board need not reach the question of whether the proximate cause of the disability was an event not reasonably foreseeable. The only opinion in support of the claim comes from the Veteran himself. The Board has considered his lay opinion; however, it is not persuasive. First, he does not have expertise to offer an opinion as to whether VA treatment caused a loss of sense of smell or whether VA was somehow negligent in rendering care. While the Veteran is certainly able to describe his loss of sense of smell and state that such began following VA treatment, as a lay person, he does not have the education, training and experience to offer a medical opinion as to whether VA caused his disability or breached its standard of care in rendering treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's lay statements in this regard are not probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Thus, a preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply and his claim for § 1151 benefits must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Sores of the Legs The Veteran seeks service connection for disabilities manifested by sores to the legs. He attributes them to exposure to herbicides such as Agent Orange. (See, e.g., February 2007 statement in support of claim.) 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 claimed disorder is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After a review of all the evidence, the Board finds that the Veteran did not sustain an injury or disease of sores of the legs in service. His service treatment records do not show treatment for such in service and the Veteran does not allege in-service treatment for sores of the legs. The Board finds that the weight of the evidence demonstrates that the Veteran does not has a chronic disability manifested by sores to the legs. While the record is replete with VA outpatient treatment records, they do not show findings of sores on the legs. For instance, a dermatology clinic record in December 2005 noted treatment for pruritis (itching) of the legs but without any evidence of sores. Similarly, a June 2007 VA Agent Orange Registry Examination noted evidence of "multiple benign lesions" but did not include the Veteran's complaints or physical examination findings of any sores to the legs. The records obtained from the Social Security Administration do not reveal findings of a disability manifested by sores. Had such sores been present at any time during treatment or examination, either by history or current complaints, or as clinical findings by the treating medical professional or medical examiner, such would have been noted as history, complaints, or findings in the treatment record or examination report. See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); AZ v. Shinseki, No. 2012-7046 (Fed. Cir. Sept. 30, 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). VA treatment records in 2009 do reference reports of multiple "bumps" on his lower extremities. However, a biopsy of the skin condition was consistent with bug bites. While the Veteran disagreed with that assessment, he was advised to have the condition re-biopsied if it flared-up. He did not return for further biopsy. The Board recognizes that the Veteran served in Vietnam and presumably was exposed to herbicide agents such as Agent Orange. Nevertheless, in order to receive VA disability compensation payments, he must still have a current disability. Here, the preponderance of the evidence is against the claims and they must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, service connection for right upper extremity peripheral neuropathy is reopened. New and material evidence having been received, service connection for left upper extremity peripheral neuropathy is reopened. New and material evidence having been received, service connection for right lower extremity peripheral neuropathy is reopened. New and material evidence having been received, service connection for left lower extremity peripheral neuropathy is reopened. Compensation pursuant to 38 U.S.C.A. § 1151 for anosmia is denied. Service connection for sores to the right leg is denied. Service connection for sores to the left leg is denied. REMAND The Board finds that additional development is required prior to deciding the claims for service connection for peripheral neuropathy affecting the bilateral upper and lower extremities and the related claims for service connection for a burning sensation of the left side of the face and to the upper body. Because the Board is precluded from exercising independent medical judgment, a medical opinion is required to provide evidence as to the current nature and etiology of the disabilities. With regard to any in-service injury, disease, or event, the Veteran's service treatment records contain isolated references to pains in the arms and legs, but without findings of peripheral neuropathy or any neurologic disability. No neurologic disability was found during the service separation examination in June 1969. A VA examiner in September 2000 noted that the Veteran was not diabetic. In October 2000, a VA neurologist noted a three month history of sensory neuropathy that was likely related to B12 deficiency. An October 2002 VA examiner described a history of peripheral neuropathy for "three years." A VA provider in July 2006 noted that the burning and sensory symptoms were of "unclear etiology" but appeared to have a "strong psych overlay." A June 2008 VA record noted that EMG/NCV studies failed to delineate presence of peripheral neuropathy or myopathy to explain current symptoms. Rather, the findings were assessed to be "consistent with cervical and lumbar radiculopathy." An October 2009 record noted the presence of small fiber neuropathy of unknown etiology. The Veteran has never been afforded a VA examination in connection with the claims or an opinion rendered addressing the newly-raised secondary service connection theory that the neuropathy symptomatology may be caused or aggravated by the service-connected psychiatric disorder of PTSD. See 38 C.F.R. § 3.310 (2013). Accordingly, these issues of service connection for peripheral neuropathy of each of the extremities and service connection for burning sensation of the left side of the face and of the upper body are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to obtain evidence as to the nature and etiology of any current peripheral neuropathy to the bilateral upper and lower extremities, and burning sensation to the left side of the face and upper body. The claims folders should be reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. A. The examiner should express opinions with reasons as to whether it is at least as likely as not (50 percent probability or more) that any (a) peripheral neuropathy, (b) burning sensation to left side of face, or (c) burning sensation to the upper body, had its onset in service or is otherwise related to any incident of service. B. The examiner should also provide opinions with reasons as to whether any (a) peripheral neuropathy, (b) burning sensation to left side of face, or (c) burning sensation to the upper body is caused by service-connected PTSD. C. The examiner should also provide opinions with reasons as to whether any (a) peripheral neuropathy, (b) burning sensation to left side of face, or (c) burning sensation to the upper body is aggravated by service-connected PTSD. 2. Thereafter, the RO/AMC should review the claims folder to ensure that the foregoing requested development has been completed. If any benefit sought on appeal is not granted, the Veteran should be provided with a Supplemental Statement of the Case ("SSOC") and afforded the opportunity to respond thereto. The matters should then be returned to the Board, if in order, for further appellate process. 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). 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs