Citation Nr: 1342878 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-00 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as a result of exposure to herbicides. 2. Entitlement to service connection for high blood pressure. 3. Entitlement to service connection for bilateral hearing loss. 4. Whether a March 2005 rating decision that denied service connection for nonspecific dermatitis should be revised or reversed on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Robert W. Gillikin, II, Attorney ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's current peripheral neuropathy of the lower extremities did not have its onset in service, or within one year of discharge from military service. 2. The preponderance of the evidence is against a finding that the Veteran's current high blood pressure had its onset, within one year of discharge from military service, or is the result of a disease or injury incurred on active duty. 3. There was a competent medical opinion and rationale from an appropriate physician, with no medical opinion to the contrary, which undebatably required the grant of service connection for non-specific dermatitis in the March 2005 rating decision. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicides, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing entitlement to service connection for high blood pressure have not been met. 38 U.S.C.A. 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The March 2005 rating decision that denied service connection for nonspecific dermatitis was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in March 2010, July 2010, and August 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent September 2012 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination and medical opinion. The Board notes there is no examination necessary for the Veteran's claim for peripheral neuropathy because while presumptive service connection is allowed, 38 C.F.R. § 3.309(e) states that the disorder must have 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. 38 C.F.R. § 3.309(e) (2013). In this case the Veteran's onset of peripheral neuropathy was more than 30 years after his discharge from the military. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and organic diseases of the nervous system and hypertension become manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Further, a veteran who, during active military, naval, or air service, 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 the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2013); 38 C.F.R. § 3.307 (2013). A veteran may also be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309 (2013). In pertinent part, acute and subacute peripheral neuropathy is listed as a presumptive condition associated with Agent Orange exposure. Such disorder must have 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. 38 C.F.R. § 3.307(a)(6)(ii)(2013)...The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2 (2013). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. 75 Fed. Reg. 81332 (Dec. 27, 2010). Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, the Veteran is not precluded from establishing service connection for his condition with proof of actual direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Hence, the Board will also consider the Veteran's claim on a direct service connection basis. Service connection for peripheral neuropathy of the lower extremeties The Veteran contends that he currently has peripheral neuropathy of the lower extremeties due to herbicide exposure during his tour in the Republic of Vietnam. The Veteran's service records do show that the Veteran had a tour in the Republic of Vietnam, thus his exposure to herbicides is conceded by VA. The Veteran's service medical records show no treatment for or diagnosis of peripheral neuropathy. A September 2008 post-service treatment record shows complaints of cold and painful feet and noted suspected peripheral neuropathy. During that visit the Veteran stated that his symptoms had its onset several years earlier. In January 2010 distal polyneuropathy was diagnosed. In March 2010 the Veteran was seen for complaints of pain in his legs that had persisted for over one year. In October 2010, the Veteran complained of numbness and tingling in the lower extremities and was diagnosed with peripheral neuropathy. The September 2008 treatment record is the first documentary evidence reflecting that the Veteran sought treatment for his condition. At no time has the Veteran asserted, and the evidence does not show, that peripheral neuropathy of the lower extremities manifested to a degree of 10 percent within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). Rather, the evidence reflects that his symptomatology began at its earliest a few years before his first treatment record dated September 2008, more than thirty years after discharge from service. The evidence does not warrant service connection for peripheral neuropathy on a presumptive basis since the condition did not become manifest to a compensable degree within one year after last exposure to herbicides or within one year of discharge from the military. 38 C.F.R. §§ 3.307, 3.309 (2013). Furthermore, the evidence does not warrant direct service connection for peripheral neuropathy as there is no competent medical evidence indicating that this condition was caused by or aggravated by service. The Veteran's statements are also insufficient to link this disorder to service since peripheral neuropathy is not the type of disorder that is capable of lay diagnosis or nexus. Similarly, despite the fact that this is a disease of the nervous system under 38 C.F.R. § 3.309(a), the Veteran's statements alone are insufficient to provide a nexus to service based on continuity of symptomatology. Therefore, in this case, the preponderance of the evidence is against the claim. Service connection for high blood pressure The Veteran contends that he currently has high blood pressure which is attributed to his military service. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran's in-service medical records are absent of any complaint, treatment, or diagnosis of high blood pressure. In a January 1966 examination prior to entering service, the Veteran's blood pressure was 116/66. In an October 1968 separation examination, the Veteran's blood pressure was 128/74. According to the Veteran's post-service treatment record, he was diagnosed with high blood pressure in September 2008. The Veteran has received follow-up treatment for his high blood pressure which is controlled with medication. There is no evidence of record that shows the Veteran's current high blood pressure was caused by or related to an in-service injury or disease. Nor is there evidence that his high blood pressure manifested to a compensable degree of 10 percent within one year of discharge from service for presumptive service connection. 38 C.F.R. §§ 3.307, 3.309 (2013). Just as was the case with the Veteran's claim for service connection for peripheral neuropathy, the Veteran's statements are also insufficient to link this disorder to service since hypertension is not the type of disorder that is capable of lay diagnosis or nexus. Similarly, despite the fact that hypertension is also a chronic disease under 38 C.F.R. § 3.309(a), the Veteran's statements alone are insufficient to provide a nexus to service based on continuity of symptomatology. Therefore, a preponderance of the evidence is also against this claim. Service connection for nonspecific dermatitis The Board notes that the Veteran's claim for dermatitis has not been identified as a clear and unmistakable error (CUE) claim throughout the appeal, despite the fact that the Veteran, through his representative, raised a claim of CUE in January 2011. Given that the Veteran's claim is clearly based on CUE, and the Board's decision to grant the claim, the issue on appeal has been accordingly recharacterized. In a March 2005 rating decision, the RO denied the Veteran's claim for service connection for nonspecific dermatitis. The Veteran submitted a timely notice of disagreement, and in an April 2006 statement of the case, the RO again denied the Veteran's claim. In May 2006, the Veteran withdrew his claim for nonspecific dermatitis. In January 2011, the Veteran, through his representative, raised a claim of CUE with respect to the March 2005 rating decision that denied service connection for nonspecific dermatitis. An August 2011 VCAA notice letter informed the Veteran that new and material evidence was necessary to reopen his claim for nonspecific dermatitis as the March 2005 rating decision had become final. A November 2011 rating decision again denied service connection for nonspecific dermatitis on the basis that new and material evidence had not been received to reopen the claim. It appears from the record that the Veteran's CUE claim has never been adequately addressed. The RO has consistently denied the Veteran's claim for nonspecific dermatitis based on a lack of evidence establishing a link between the Veteran's dermatitis and his military service. The Board points out, however, that at the time the Veteran filed his claim he also submitted evidence from a private physician who treated him for his dermatitis. In an August 2004 statement, the physician provided a diagnosis of chronic dermatitis and a competent medical opinion and rationale that the Veteran's chronic dermatitis was due to the Veteran's exposure to Agent Orange. The Veteran has consistently maintained, since filing his initial claim that his skin disability began shortly after separation from service. Simply put, the Board finds that there was a competent medical opinion and rationale from an appropriate physician, with no medical opinion to the contrary, which undebatably required the grant of service connection for non-specific dermatitis in the March 2005 rating decision. Consequently, based on the Board finding of CUE in the March 2005 rating decision, service connection for nonspecific dermatitis is warranted. 38 C.F.R. § 3.105(a) (2013). ORDER Entitlement to service connection for peripheral neuropathy of the lower extremities is denied. Entitlement to service connection for high blood pressure is denied. Based on a finding of CUE in the March 2005 rating decision's denial of service connection for nonspecific dermatitis, entitlement to service connection for nonspecific dermatitis is granted. REMAND The Board finds that the issue of entitlement to service connection for bilateral hearing loss must be remanded for further development. Where VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination of record is inadequate as the supporting rationale for the negative nexus opinion is unclear. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran was a helicopter mechanic in service and hazardous noise exposure has already been conceded. In August 2011, the Veteran underwent a VA examination and was diagnosed with mild sensorineural hearing loss in the right ear, and mild to moderate sensorineural hearing loss in the left ear. The examiner opined that it was less likely than not, less than 50 percent probability, that the Veteran's bilateral sensorineural hearing loss was related to military service. The rationale given was that audiometric data indicated normal hearing on his separation examination, and there was no shift in hearing as compared to his entrance examination hearing test. The examiner also stated that hearing loss due to noise occurs at the time of exposure and not subsequently. Service connection may be granted for a disability diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). The fact that an entrance or separation examination reflects normal hearing is a factor that can be considered in determining a link between a disability and military service, however, it is not the only factor. All of the pertinent evidence of record must be considered. Also, the absence of complaints in service is not by itself dispositive that a disability was not caused by or related to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Under the circumstances, the Board finds that the VA opinion is inadequate because it is not responsive as to the matters on appeal. As it remains unclear to the Board whether the Veteran's current bilateral hearing loss was caused by or related to service, there is a duty to provide the Veteran with a new VA examination, which includes a nexus opinion, to be performed by a VA examiner other than the one who conducted the August 2011 VA examination. Murinscsak v. Derwinski, 2 Vet. App. 363 (1992); Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a different examiner than the examiner who conducted the August 2011 VA examination, to determine the etiology of his hearing loss disability. All necessary tests should be conducted. The claims folder should be reviewed by the examiner and that review should be noted in the examination report. The examiner should specifically state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed hearing loss disability is related to the Veteran's period of active service. A complete rationale for the conclusions should be given. The examiner is asked to reconcile the opinion with other medical evidence of record, to include the service medical records and the August 2011 VA examination findings. 2. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and thereafter return the case to the Board for further appellate review. 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Michael Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs