Citation Nr: 1751841 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-27 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder of the hands, to include as due to exposure to contaminated water at Camp Lejeune and/or exposure to herbicide agents. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder of the feet, to include as due to exposure to contaminated water at Camp Lejeune and/or exposure to herbicide agents. 3. Entitlement to service connection for a skin disorder of the hands, to include as due to exposure to contaminated water at Camp Lejeune and/or exposure to herbicide agents. 4. Entitlement to service connection for skin disorder of the feet, to include as due to exposure to contaminated water at Camp Lejeune and/or exposure to herbicide agents. 5. Entitlement to a compensable rating for bilateral hearing loss. 6. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus, Type II. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. As the Louisville, Kentucky RO has special jurisdiction over claims involving exposure to contaminated water at Camp Lejeune, jurisdiction currently resides at the Louisville RO. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, as the evidence indicates that the Veteran has been diagnosed with more than one psychiatric disability the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been recharacterized more broadly as service connection for an acquired psychiatric disorder. The record also indicates that the Veteran may have multiple skin disabilities of the hands and feet. Thus, the issues of service connection for skin rash of the hands and feet have been recharacterized as skin disorder of the hands and feet. In February 2011 and April 2013, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the February 2011 hearing is associated with the Veteran's claims file. However, a transcript of the April 2013 hearing is not. In May 2015, the Veteran was advised that the RO had been unable to obtain a copy of the April 2013 hearing transcript. He was offered the opportunity for another hearing; however, he did not respond. Finally, the Veteran recently filed a claim in October 2017 for an increased rating for his bilateral hearing loss. The Board notes, however, that this issue is already on appeal and is addressed herein. The issues of entitlement to a compensable rating for bilateral hearing loss and entitlement to service connection for skin disorder of the hands and feet, an acquired psychiatric disorder, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed January 2004 rating decision denied service connection for a skin disorder of the hands and feet. 2. Evidence received since the final January 2004 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a skin disorder of the hands and feet. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied service connection for a skin disorder of the hands and feet is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claims for entitlement to service connection for a skin disorder of the hands and feet. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, inasmuch as this decision grants in full those portions of the claims that are being addressed (i.e., the request to reopen claims for service connection for a skin disorder of the hands and feet), there is no reason to belabor the impact of VA's duty to notify and assist on those matters; any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. New and Material Evidence - Skin Disorder of the Hands and Feet A claim that has been denied in an unappealed RO decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In January 2004, the AOJ denied service connection for skin disorder of the hands and feet. The basis of the AOJ's denial of service connection for a skin disorder of the hands was that no permanent residual or chronic disability subject to service was shown by the Veteran's service treatment records or demonstrated by evidence following service. The basis of the AOJ's denial of service connection for a skin disorder of the feet was that the Veteran's service treatment records did not show treatment or diagnosis for this condition during military service. The Veteran did not appeal that denial, or submit new and material evidence within one year of that decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). Thereafter, in October 2007, the Veteran's representative submitted claims for service connection for skin disorders of the hands and feet. See October 2007 Statement in Support of Claim. Evidence received since the January 2004 rating decision includes VA Medical Center (VAMC) treatment records showing current diagnoses and treatment for rashes of the hands and feet. See July 2012 and December 2008 VAMC records. The Veteran also asserts that his skin disorders are the result of his exposure to herbicide agents and/or contaminated water at Camp Lejeune. See May 2011 Statement in Support of Claim and February 2011 RO Formal Hearing Testimony. This additional evidence relates to unestablished facts necessary to substantiate the Veteran's claims for service connection for skin disorders of the hands and feet. Accordingly, the claims for entitlement to service connection for skin disorders of the hands and feet are reopened. ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a skin disorder of the hands has been received, the application to reopen this issue is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for a skin disorder of the feet has been received, the application to reopen this issue is granted. REMAND Increased Rating for Bilateral Hearing Loss A claimant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327. Here, the most recent VA examination for compensation purposes was conducted in May 2011, over six years ago. The Veteran also recently, in October 2017, attempted to file a new claim an increased rating for his bilateral hearing loss. As such, the record likely does not reflect the current state of the Veteran's disability. Thus, the duty to assist necessitates that this claim be remanded to schedule a new VA examination. While on remand, additional records development should also be completed. Specifically, the Veteran's January and December 2016 VAMC treatment records reflect that audiometry was conducted as part of his treatment for bilateral hearing loss. However, the puretone threshold results from the January and December 2016 VAMC audiograms are not currently of record. Furthermore, the Veteran indicated that he has undergone treatment at the Allan Park VAMC, in Detroit, Michigan. However, such evidence is not currently of record. As such, on remand, the AOJ should attempt to obtain these records. Service Connection for Skin Disorder of the Hands and Feet If VA provides a medical examination or opinion for the issue of service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Adequacy occurs when the Board is able to perform a fully informed adjudication. Id. As such, VA medical examinations must be based upon consideration of the Veteran's entire history and describe the disability present. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). Additionally, VA medical opinions must be based on accurate factual premises, address all applicable theories of entitlement, and be supported by clearly and fully articulated rationale. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120; Reonal v. Brown, 5 Vet. App. 458 (1993). The Veteran underwent a VA examination in May 2011 to assess the etiology regarding skin disorder of the hands and feet. The examiner diagnosed the Veteran with a rash of the left hand and feet and opined that the skin condition of the feet and hand was less likely as not related to exposure to the drinking water while at Camp Lejeune. The examiner explained that this opinion was based on a literature search, history by the Veteran, and a physical examination. The examiner did not, however, address the Veteran's contention that his skin disorders are also secondary to his exposure to herbicide agents. See February 2011 RO Formal Hearing Testimony. As he served in Vietnam, he is presumed to have been exposed to herbicide agents in service. Accordingly, on remand, the VA examiner must opine as to whether the Veteran's skin disorders of the hands and feet are etiologically related to in-service exposure to herbicide agents. Service Connection for Hypertension and Acquired Psychiatric Disorder With respect to the claims of service connection for hypertension and acquired psychiatric disorder, the Veteran has provided medical records showing evidence of current disabilities. Furthermore, there is evidence sufficient to trigger VA's duty to assist to provide a VA examination. In pertinent part, the Veteran contended that his hypertension was caused by his service-connected diabetes mellitus type II. See April 2009 Notice of Disagreement (NOD). In addition, the Veteran asserted that he experienced in-service stressors including being the first to land in Vietnam, being in Vietnam knowing that the enemy was everywhere, having people he knew killed by sniper fire, and constant gun fire and mortars. See June 2008 Statement in Support of Claim for PTSD and February 2011 RO Formal Hearing Testimony. Such evidence is more than sufficient to meet the threshold requirements for affording the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006) (VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, VA examinations are warranted to determine the nature and etiology of the Veteran's claims for hypertension and acquired psychiatric disorder. The Board acknowledges that the Veteran previously underwent a March 2015 VA psychiatric examination in connection with his PTSD claim. However, the Board maintains that a new VA psychiatric examination is required pursuant to McLendon, as the March 2015 examination is inadequate for rating purposes. In pertinent part, the VA examiner indicated that the Veteran's symptoms did not meet the DSM-5 criteria for a PTSD diagnosis and did not render an etiological opinion. Nevertheless, the records shows that the Veteran was previously diagnosed with PTSD in July 2012 based on his June 2012 PTSD evaluation. See June and July 2012 VAMC records. The examiner failed to reconcile this diagnosis with his findings. Additionally, to the extent that the examiner diagnosed a psychiatric disorder other than PTSD, i.e., a panic disorder, the examiner did not provide an opinion as to its etiology. As there is no competent medical opinion of record which addresses the Veteran's psychiatric diagnoses, a remand is warranted in order to obtain a VA examination and opinion. See McLendon, 20 Vet. App. at 83. The Board also acknowledges the Veteran's contention that his hypertension is related to the stress caused by his PTSD. Accordingly, on remand, if the AOJ determines that service connection is warranted for the Veteran's acquired psychiatric disorder, then an opinion must be rendered by a VA examiner as to whether the Veteran's hypertension is secondary to his acquired psychiatric disorder. Finally, also with respect to hypertension, the record raises the question of whether the Veteran's hypertension is related to his presumed exposure to herbicide agents in service. Although VA has not conceded a relationship between hypertension and Agent Orange, it is significant to note that prior to 2006, the National Academy of Science (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its 2006 Update, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (April 11, 2014). Specifically, it notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. In light of the NAS study findings, the Board finds that a medical examination for an opinion is necessary to determine whether the Veteran's hypertension is etiologically related to his exposure to herbicide agents in service. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance, if needed, obtain copies of any pertinent records and add them to the claims file. The AOJ must specifically request treatment records from the Allen Park VAMC, in Detroit, Michigan, as well as the January and December 2016 Ann Arbor VAMC audiogram results. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Following the record development above, schedule the Veteran for a VA audiology examination to determine the current nature and severity of his service-connected bilateral hearing loss. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Any testing deemed necessary should be performed. All clinical findings should be reported in detail. The examination of hearing impairment should be conducted without the use of hearing aids. The examiner is instructed to identify pure tone audiometric thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz, and the resultant average. A Maryland CNC Test should be administered to determine speech recognition ability. The examiner must also describe the functional effects of the Veteran's bilateral hearing loss, including on his occupational functioning and daily activities. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's skin disorder of the hands and feet. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) After considering the pertinent information in the record, the examiner should identify all diagnosed skin disorders of the hands and feet. b) For any currently diagnosed skin disorder of the hands and/or feet, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the diagnosed skin disorder had its onset during active service, or is otherwise related to active service, to include exposure to herbicide agents. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension had its onset during active service, or is otherwise related to active service, to include exposure to herbicide agents. The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide exposure. The Agent Orange Updates speak to associations between exposure to chemicals and health outcomes in human populations, and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. Thus, the question here is what is the likelihood that this Veteran's hypertension is related to his herbicide agents exposure given his medical history, family history, risk factors, and etc. b) The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus type II. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner is also advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's acquired psychiatric disability. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) After considering the pertinent information in the record, the examiner should identify all diagnosed acquired psychiatric disorders. b) For each currently diagnosed acquired psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the diagnosed acquired psychiatric disorder had its onset during active service, or is otherwise related to active service. The examiner must consider and discuss the July 2012 diagnosis of PTSD. The examiner is also advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. If, and only if, the AOJ determines that service connection is warranted for the Veteran's acquired psychiatric disability, the AOJ should procure an addendum opinion from the VA examiner who evaluated the Veteran's hypertension. The examiner is instructed to opine as to whether the Veteran's hypertension was caused or aggravated by the Veteran's acquired psychiatric disorder. 7. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs