Citation Nr: 1627345 Decision Date: 07/08/16 Archive Date: 07/14/16 DOCKET NO. 03-08 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a skin disorder, including as due to exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, including as due to exposure to herbicides or secondary to service-connected type II diabetes mellitus. 3. Entitlement to an increased rating for degenerative joint disease of the left hip, currently assigned a 10 percent evaluation. 4. Entitlement to an increased rating for tender scar of the neck, residual of excision of right submandibular gland with recurrent parotid stones, currently assigned a 10 percent evaluation. 5. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). 6. Entitlement to service connection for amputation, left great toe and 2nd toe. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from January 1967 to February 1972 and from October 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of February 2001. In April 2003, the Veteran appeared and testified at a hearing held at the RO before a Veterans Law Judge who is no longer with the Board. In January 2006, the Veteran stated that he did not wish to have another hearing. The transcript from his prior hearing has been associated with the claims file. In December 2004, the case was remanded to the RO for additional development. In May 2006, the Board denied one claim and remanded the remaining three claims (service connection for a left knee disorder and the two increased rating claims listed on the first page). In July 2009, service connection was granted for left knee arthritis with strain. In March 2003, the Veteran filed claims for service connection for bilateral hand neuropathy due to Agent Orange exposure and "problems" with his feet and legs secondary to diabetes. In a report of contact dated in August 2009, the Veteran inquired about the status of his claims for a heart condition and neuropathy. The Veteran's appeal originally included claims for service connection for peripheral neuropathy, soft tissue sarcoma and a skin condition, all due to exposure to herbicides that were denied. In April 2003, the Veteran appeared and testified at a Travel Board hearing at which time he withdrew the claim for service connection for soft tissue sarcoma. In December 2004 decision, the Board dismissed that claim; however, it remanded all the remaining claims including service connection for peripheral neuropathy and a skin disorder as due to exposure to herbicides for compliance with VA's duty to notify. In November 2010, the Board remanded the case and included the issue of service connection for peripheral neuropathy of both the upper and lower extremities on the title page. However, the Board was not aware that the RO had granted service connection for peripheral neuropathy of the lower extremities in October 2010. The Veteran did not appeal the effective date or the disability rating that was assigned. Therefore, the Board will only review the issue of service connection for peripheral neuropathy of the upper extremities. In the November 2010 remand, the Board referred the issues of entitlement to service connection for prostate cancer, a heart condition other than hypertension, a kidney condition, as well a petition to a claim to reopen for service connection for PTSD, to the RO for initial consideration. The RO denied service connection for a heart disorder in April 2013; however, there does not appear that any development was initiated with regards to the remaining referred claims. Therefore, the issues of entitlement to service connection for prostate cancer and a kidney condition, as well a petition to reopen for a claim for service connection for PTSD, is again referred to the RO for initial consideration. The issue of entitlement to TDIU has been raised by the Veteran (October 2012 and December 2012 applications for TDIU benefits). The Board considers the TDIU claim as part of his pending increased rating claims, and is listing the raised TDIU claim as an issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) The issues regarding increased ratings for tender scar of the neck and degenerative joint disease of the left hip, entitlement to service connection for amputation, left great toe and 2nd toe, as well as entitlement to a TDIU are REMANDED to the RO. VA will notify the Veteran if further action is required. FINDING OF FACT The weight of the competent and credible evidence does not rise to equipoise regarding the existence of current diagnoses of peripheral neuropathy of the upper extremities or a chronic skin disorder. CONCLUSIONS OF LAW 1. The Veteran does not have a chronic skin disorder as a result or consequence of disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The Veteran does not have peripheral neuropathy of the upper extremities as a result or consequence of disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Assist and Notify Initially, the Board notes that VA's duty to notify was satisfied by a letter dated in December 2004. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. General Statutes, Regulations and Cases Pertaining to Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). If a Veteran was on the ground in Vietnam, it is presumed that he was exposed to Agent Orange. If such Veteran subsequently develops certain disorders set out in the law and regulations, within the appropriate presumptive period, service connection may be presumed. VA regulations also provide that a Veteran who had active military, naval, or air service 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 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.307(a)(6)(ii). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). This entails "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Service Connection for a Skin Disorder The Veteran's service treatment records (STRs) do not show any complaints, treatment, or diagnosis regarding skin problems. There were no skin problems noted on the September 1986 examination conducted prior to his discharge from service. There are no post service records showing a diagnosis of a chronic skin disease. In light of the Veteran's claim, the RO scheduled a VA compensation examination in December 2010. However the Veteran denied any skin problems and there were none noted on examination. As explained, the most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The Board finds a lack of competent evidence of a current disability upon which to predicate a grant of service connection for a skin disorder. In this regard, the Veteran has neither provided nor identified any medical evidence showing a chronic skin disorder. As noted above he specifically denied any skin problems on VA examination. Service Connection for Peripheral Neuropathy of the Upper Extremities There are no references to peripheral neuropathy noted in the Veteran's STRs. There were no neurological problems noted on the September 1986 examination conducted prior to his discharge from service. The Veteran was diagnosed with diabetes mellitus in the late 1980's. During VA treatment in May 2002, diabetic neuropathy of the lower extremities was diagnosed. The Veteran has been granted service connection for both diabetes mellitus type II and associated neuropathy of the lower extremities. VA examination was conducted in June 2010. The Veteran denied any classic symptomatology of diabetic peripheral neuropathy of the upper extremities such as paresthesias, dysesthesias, sensory abnormalities, tingling, numbness, or pain. He also denied any flare ups. The examiner indicated that there was no evidence of diabetic peripheral neuropathy of the upper extremities found at that time. In light of the Veteran's general contentions, the Board remanded the case for a VA opinion regarding peripheral neuropathy in 2010. VA examination which included electromyograph (EMG) studies was conducted in December 2010. It was noted that nerve conduction tests were conducted. The right tibial motor, right sural motor, and right tibial F-wave responses were normal. At this point, the Veteran tolerated the procedure poorly and he refused all further testing, including completion of the nerve conduction tests as well as, as needle examination. In reporting the diagnostic assessment, the examiner noted that the few nerve conduction tests that were conducted were normal which made the diagnosis of peripheral neuropathy unlikely. The physician went on to state that the symptoms experienced by the Veteran were indicative of and consistent with radicular pain secondary to lumbar stenosis. (The Board notes that the Veteran is service-connected for degenerative joint disease of the lumbar spine. The symptoms associated with this disability including radicular pain are considered when rating that disability.) A series of VA examinations were conducted in January 2013. These examinations did not reveal findings of neuropathy in the upper extremities. Rather, there were findings of neuropathy in the lower extremities. In sum, the post-service medical evidence does not rise to the level of equipoise regarding a diagnosis of peripheral neuropathy of the upper extremities. There is no diagnosis of peripheral neuropathy despite extensive diabetic treatment and evaluation. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise for service connection for a skin disorder or upper extremity peripheral neuropathy. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Rather, the weight of evidence of record does not rise to the level of equipoise regarding service connection for a skin disorder or upper extremity peripheral neuropathy and so the claims must be denied. ORDER Service connection for a skin disorder is denied. Service connection for peripheral neuropathy of the upper extremities is denied. REMAND In the prior remand in 2010, the Board requested that the RO schedule a VA examination for his left hip and tender scar of the neck, including any residuals of parotiditis. This was partly due to the fact that there was an extended period of time since the Veteran had been examined for either disability. VA examinations were conducted in December 2010 and January 2011. A general examination was conducted in January 2013. It appears that another examination was scheduled in May 2015, however, the Veteran failed to report. In light of the fact that there are no copies of VA correspondence sent to the Veteran notifying him of his scheduled examination in 2015, and that there has been over 3 years since the Veteran was last examined; the Board will remand the case to give the Veteran another chance to be examined. In a November 2015 rating decision, the Veteran's request for entitlement to service connection for amputation, left great toe and 2nd toe was denied. In January 2016, the Veteran provided a Notice of Disagreement. The filing of a notice of disagreement places a claim in appellate status. The failure to issue a statement of the case in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2015); see also Manlincon v. West, 12 Vet. App. 238 (1999). The purpose of the remand is to give the RO an opportunity to cure this defect. Thereafter, the RO should return the claims file to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case concerning issue of service connection for amputation, left great toe and 2nd toe. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on the aforementioned issue should it be returned to the Board. 2. Ask the Veteran to update the list of the doctors and health care facilities that have treated him for the disabilities at issue. This list should include, but is not limited to his primary private physician. Obtain any additional medical treatment records (those not already on file). The aid of the Veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. 3. Make arrangements to obtain the Veteran's VA treatment records, dated from April 2015 forward. 4. After the above records have been obtained, schedule the Veteran for a VA examination to determine the severity of his residual scarring from his surgeries. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be completed. 5. Schedule the Veteran for an ear, nose and throat (ENT) VA examination to determine the severity of his parotiditis. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail. If possible, the appropriate DBQs should be completed. 6. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to evaluate the issue of entitlement to a TDIU. In conjunction with the examination, the VBMS e-folder must be made available to and reviewed by the examiner. Following evaluation of the Veteran, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities (other than diabetes mellitus which is considered 100 percent disabling) and opine as to the impact of the remaining service-connected disabilities, to include in the aggregate, on his ability to secure and follow a substantially gainful occupation. A complete rationale for all opinions should be provided. 7. Finally, readjudicate the claims on appeal. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. 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). These claims 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs