Citation Nr: 1342822 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-15 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral diabetic peripheral neuropathy of the upper extremities. 2. Entitlement to service connection for bilateral carpal tunnel syndrome. 3. Entitlement to service connection for a skin disability, to include actinic keratoses and arsenical keratoses, claimed as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from June 1966 to June 1968. The appeal comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, denying service connection for actinic keratosis, and from a July 2009 RO decision denying service connection for both bilateral peripheral neuropathy of the upper extremities and bilateral carpal tunnel syndrome. The Board notes that the Veteran submitted a request to reopen a claim for service connection for hypertension in October 2009, and the RO issued a VCAA letter addressing the claim in November 2009. However, it does not appear that the RO has issued a determination addressing the request to reopen. Because there is no underlying determination of the RO, the Board does not have appellate jurisdiction over the issue, and it is referred to the RO for appropriate action. The issue of entitlement to service connection for actinic keratoses is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Bilateral carpal tunnel syndrome (CTS) has been present during the pendency of the Veteran's claim, and has been causally attributed to the Veteran's service-connected diabetes mellitus. 2. Diabetic peripheral neuropathy has not been present in either upper extremity at any time during the pendency of the Veteran's claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral CTS have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for service connection for bilateral diabetic peripheral neuropathy have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in November 2008, prior to the initial adjudication of the claims addressed by the Board herein. The claim initially characterized as only one of entitlement to service connection for bilateral carpal tunnel syndrome was subsequently expanded in the course of claim development to include peripheral neuropathy of the upper extremities. However, the Board finds that the Veteran was afforded adequate actual notice of development required and evidence required and relative duties of the parties to support that claim, and the Veteran and his representative by submitted statements demonstrated actual knowledge of such issues with respect to the claim, so that no prejudice resulted from the more limited scope of the pre-adjudicative VCAA notice as provided in November 2008. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board accordingly finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds VA has complied with its duty to assist the Veteran in the development of the claims adjudicated herein. In this regard, the record reflects that all pertinent available medical evidence identified by the Veteran has been obtained, to include private and VA outpatient treatment records. The Veteran was also afforded VA examination and a Veterans Health Administration (VHA) opinion addressing medical questions implicated for the claims adjudicated herein, as discussed below. The VHA opinion was appropriately followed by notice to the Veteran and disclosure of that VHA opinion, about which the Veteran was afforded an adequate opportunity to reply. The Veteran's authorized representative did address this VHA opinion by the Written Brief Presentation submitted in August 2013. II. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case with respect to VA benefits under applicable law. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Claims for Service Connection Legal Criteria Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While medical evidence may be required to address questions of diagnosis or causation specifically requiring medical expertise, lay statements may serve to support a claim for service connection, or a claim for increased evaluation, by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007). Factual Background and Analysis The Veteran has been service connected for diabetes mellitus, and for peripheral neuropathy of the lower extremities secondary to that disability. These awards were predicated on electromyogram (EMG) testing, conducted in April 2007, and on associated medical findings and nexus opinions. EMG testing of the upper extremities in November 1999, however, revealed carpal tunnel neuropathy, then specifically observed as severe demyelination and moderate axonopathy of the medial nerve bilaterally when it passed through the carpal tunnel. Other peripheral neuropathy of the upper extremities was not then identified. Upon EMG testing in January 2008 to address neck pain as well as left upper extremity radiating pain, mild left median neuropathy at the wrist and mild left C7 neuropathy were assessed. A follow-up MRI of the cervical spine in February 2008 revealed degenerative changes and nerve encroachment/impingement at multiple cervical levels. A private physician provided an opinion in a letter dated in September 2008, that the Veteran's carpal tunnel syndrome affecting both hands was "more likely than not" due to "polyneuropathy." Upon a VA examination addressing his upper extremities in May 2009, the examiner noted the Veteran's bilateral trigger fingers (which have already been service connected) as well as a history of carpal tunnel syndrome. The bilateral carpal tunnel syndrome as noted by the private physician in September 2008 was again noted, but with the VA examiner currently observing only left carpal tunnel syndrome persistent at the time of the May 2009 examination. The examiner found that it was at least as likely as not that the Veteran's carpal tunnel syndrome, previously present bilaterally, was causally related to the Veteran's diabetes mellitus. The examiner drew no conclusions as to the existence of polyneuropathy of the upper extremities. The Board obtained a VHA opinion in July 2013. That examiner carefully reviewed the record and provided opinions addressing claimed bilateral carpal tunnel syndrome and claimed diabetic peripheral neuropathy affecting the upper extremities. The examiner noted that the past medical records including EMG findings supported past carpal tunnel syndrome, and that medical understanding supported a causal link to diabetes mellitus. The examiner also noted, however, that the past testing and examination did not support the presence of polyneuropathy of the upper extremities. The Board notes that the September 2008 private medical evaluation supports the presence of carpal tunnel syndrome of both upper extremities during the pendency of the appealed claim, even if more recent records only support left carpal tunnel syndrome currently. The requirement of current disability to support a service connection claim is thus fulfilled for carpal tunnel syndrome of both upper extremities, based on the presence of the disability at any time during the pendency of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain v. Nicholson, 21 Vet. App. 319 (2007)). However, the weight of the evidence is against the presence of diabetic peripheral neuropathy or diabetic polyneuropathy affecting the upper extremities. Specifically, the relevant diagnostic assessments of record reveal that only diabetic peripheral neuropathy of the lower extremities has been established through neurologic testing. The Board recognizes that the Veteran may sincerely believe that he has upper-extremity peripheral neuropathy that is attributable to his diabetes mellitus. While a layperson, he is competent to opine on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Such questions, however, do not include the diagnosis of peripheral neuropathy, which requires medical expertise. See Jandreau, 492 F.3d at 1376-77 n.4 (noting that lay persons are not competent to diagnose cancer); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ('Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with. '). Accordingly, the Board relies on the findings of the aforementioned VA examiner, the VHA opinion, and the VA and private examination and opinion evidence presented. That evidence collectively shows that the Veteran has bilateral carpal tunnel syndrome secondary to diabetes mellitus, but does not have bilateral diabetic peripheral neuropathy or polyneuropathy of the upper extremities. Treatment records do not support contrary findings, and lay evidence is not competent to address such distinctly medical conclusions. Thus, as supported by the weight of the evidence, service connection is warranted for bilateral carpal tunnel syndrome; and with the weight of the evidence against, service connection is not warranted for bilateral upper extremity diabetic peripheral neuropathy. 38 C.F.R. §§ 3.303, 3.310. ORDER Service connection for bilateral carpal tunnel syndrome is granted. Service connection for bilateral upper extremity diabetic peripheral neuropathy is denied. REMAND The Veteran contends that he is entitled to service connection for a skin disorder that was caused or aggravated by in-service herbicide exposure. However, before the Board may reach the merits of his claim, additional development is warranted. See 38 C.F.R. § 19.9 (2013). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii) (2013). A presumption of service connection exists if a Veteran is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents, to include acute and subacute peripheral neuropathy. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The listed diseases include Type II diabetes mellitus and chloracne or other acneform disease consistent with chloracne. 38 C.F.R. § 3.307(a)(6)(ii) provides for a lifetime presumption as to diabetes mellitus, type II, but as to chloracne it provides that chloracne or other acneform disease consistent with chloracne, must 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 service. Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, a Veteran may also establish service connection with proof of actual direct causation. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). By argument in a May 2013 Written Brief Presentation together with submitted medical and physical science literature, the Veteran's authorized representative has effectively contended that the Veteran's claimed skin disability is actinic keratoses or arsenical keratoses, and that these keratoses have resulted from exposure to Agent Blue in Vietnam as a result of the arsenic contained within Agent Blue. The submitted literature supports the presence of arsenic within Agent Blue and the use of Agent Blue in Vietnam, and also supports the possibility of developing keratoses as a result of exposure to arsenic. Because the Veteran served in Vietnam during the Vietnam Era, he may be presumed to have been exposed to herbicide agents, which may include Agent Blue. 38 C.F.R. § 3.307(a)(6)(iii). However, presumptive service connection is not established for keratoses on the basis of presumed herbicide agent exposure in Vietnam. As already noted, the Veteran may, however, support the claim on a non-presumptive basis with medical evidence supporting a causal link between herbicide agent exposure in Vietnam and development of keratoses. 38 C.F.R. § 3.303; Combee. The Veteran has not presented any medical opinion evidence addressing this question, but the submitted medical literature affords sufficient indication of the possibility of a link between herbicide agent exposure and the development of keratoses to necessitate VA obtaining a medical opinion on the issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). It is unclear from the present record whether the Veteran's claimed actinic keratoses or arsenical keratoses may be considered, on a medical basis, as an acneform disease consistent with chloracne. The record also does not contain evidence of manifestation of the claimed keratoses within the first post-service year. Thus, upon remand the examiner should be asked to address whether chloracne or acneform disease consistent with chloracne is present, and if so whether it was manifested within the first post-service year. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remanded claim. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the likelihood of an etiology of the Veteran's actinic keratosis causally related to exposure to herbicide agents in service. The paper claims file and any additional pertinent evidence contained in the electronic record (Virtual VA/Veterans Benefits Management System (VBMS)) must be made available to and reviewed by the physician. Any indicated studies should be performed. The physician should examine the Veteran, and should review his pertinent history, clinical records, and submitted medical or other informative literature addressing causes of actinic keratoses and the nature of Agent Blue as an herbicide agent used in Vietnam during the Vietnam Era. Any additional necessary medical literature review should also be conducted. The physician should then state an opinion as to whether there is a 50 percent or better probability that the Veteran's actinic keratoses originated while the Veteran was serving on active duty or developed due to active duty, including particularly whether they are due to Agent Blue exposure in service, and in particular whether they are due to exposure to the arsenic contained within Agent Blue. The examiner should also address whether the Veteran's claimed actinic keratoses are an acneform disease consistent with chloracne. If so, the examiner should address the likelihood that the condition was manifested to a disabling degree within the first post-service year. The physician must provide the supporting rationale for all opinions expressed. If the physician is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 3. Then, the RO should readjudicate the claim remaining on appeal. If any aspect of the claim is not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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. 2013). ______________________________________________ E. Woodward Deutsch Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs