Citation Nr: 1752591 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-29 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a lumbar spine disability (claimed as rheumatoid arthritis of the sacroiliac joints). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for alopecia, to include as an autoimmune disease, and if so whether service connection is warranted. 3. Entitlement to service connection for metabolic syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1969. This matter comes before the Board of Veterans' Appeals on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to service connection for alopecia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 2007 rating decision, the RO denied the Veteran's claim for service connection for alopecia, to include as secondary to his service-connected PTSD; the Veteran did not appeal that decision or submit relevant evidence during the appeal period and that decision is final. 2. Some of the evidence received since the May 2007 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for alopecia. 3. At the August 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the claim for entitlement to service connection for a lumbar spine disability (also claimed as rheumatoid arthritis of the sacroiliac joints). 4. The Veteran is already service connected for hypertension and diabetes, and metabolic syndrome is not otherwise a disability recognized under the rating schedule. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for alopecia, to include autoimmune disease, to include as due to herbicide exposure and/or as secondary to service-connected posttraumatic stress disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for withdrawal of the substantive appeal as to the issue of entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for establishing service connection for metabolic syndrome have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claim At his August 2016 hearing, the Veteran indicated that he wished to withdraw his appeal of the claim for service connection for a lumbar spine disability. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. With regard to the issue withdrawn by the Veteran, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim, and the appeal as to that issue is dismissed. II. New and Material Evidence The Veteran's claim for service connection for alopecia was initially denied in a May 2007 rating decision. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, it is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Generally, if a claim for service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the May 2007 rating decision included service treatment records, VA treatment records, medical articles, a VA examination report, and lay statements. Service connection was denied because there was no evidence showing that the Veteran's current alopecia disability occurred in or was caused by service, or caused or aggravated by his service-connected PTSD. Evidence added to the record since the May 2007 rating decision consists of additional treatment records, additional lay statements, additional medical articles, an additional VA examination, copies of past Board decisions, Social Security Administration (SSA) records, and the Veteran's hearing testimony. This evidence is "new," as it was not previously submitted to agency decision makers. Some of it is also material, as it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability. In this regard, as to his claim for alopecia due to Agent Orange, the Veteran testified that he was in Vietnam for almost one year and following service, he was told by a VA dermatologist that he had alopecia, but there was no treatment for the condition. He submitted articles, one suggesting that Agent Orange is associated with skin disorders and loss of hair, and another suggesting that stress can cause autoimmune disorders. Such evidence is presumed credible for purposes of new and material evidence analysis. As the threshold to reopen claims is low, the Board finds that new and material evidence has been submitted. Accordingly, the claim for service connection for alopecia is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). III. Service Connection for Metabolic Syndrome The Veteran seeks service connection for metabolic syndrome, which he contends is due to Agent Orange exposure or his PTSD. An article submitted by the Veteran from the American College of Cardiology 2013 noted that the cluster of conditions known as metabolic syndrome (hypertension, hyperlipidemia, hyperglycemia and abnormal cholesterol levels) has been associated with increased risk of heart disease, diabetes, and stroke. However, the Veteran is already service connected for diabetes (which accounts for hyperglycemia) and hypertension, and has neither claimed nor been diagnosed with heart disease or stroke. As noted by the 2010 VA examiner, hyperlipidemia and abnormal cholesterol levels are abnormal laboratory findings, and not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (noting that abnormal laboratory results are not, in and of themselves, disabilities under the rating schedule). Thus, while the Veteran's private physician noted in a in September 2011 letter the he suffers from metabolic syndrome, he is already service connected for the ratable disabilities that make up that syndrome (hypertension and diabetes), and the other findings that are considered as part of that syndrome are not ratable disabilities under the rating schedule. In sum, the Veteran's metabolic syndrome does not satisfy the requirements of a current disability in and of itself, as it is by its nature a cluster of conditions and laboratory findings. Moreover, the ratable disabilities associated with that syndrome (hypertension and diabetes) are already service connected. Accordingly, service connection for metabolic syndrome is denied. ORDER The appeal as to the claim for entitlement to service connection for a lumbar spine disability is dismissed. New and material evidence having been received, the claim of entitlement to service connection for alopecia is reopened, and to that extent only, the appeal is granted. Service connection or metabolic syndrome is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim for service connection for alopecia. As an initial matter, the Board notes that the Veteran's military personnel records confirm in-country Vietnam service; therefore, exposure to herbicides is conceded. The Veteran contends that his alopecia results from an autoimmune response due to Agent Orange exposure or as a result of his PTSD. Although alopecia is not included in the list of conditions for which presumptive service connection may be granted under 38 C.F.R § 3.309(e), a veteran is not precluded from establishing service connection with proof of direct causation. Accordingly, a medical opinion is needed. During his August 2016 Board hearing, the Veteran testified that he had been seeking treatment with the Tomah VA Medical Center (VAMC) for the past 13 or 14 years for alopecia, suggesting that treatment started around 2002. However, the earliest VA medical records contained in the claims file date back to December 2004. As such, relevant outstanding and ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file outstanding VA treatment records from the Tomah VAMC for the Veteran dated from 2002 to December 2004. Updated VA treatment records dating since July 2016 to the present should also be obtained. If any requested records are unavailable, the Veteran and his representative should be notified of such and the claims file should be annotated to reflect such. 2. After the above is completed to the extent possible, send the claims file to an appropriate VA examiner to obtain an opinion on the Veteran's claims for service connection for alopecia. If a VA examination is deemed necessary to respond to the questions presented, such should be scheduled. After review of the claims file, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's alopecia is etiologically related to in-service herbicide exposure? Please explain why or why not. b. If the Veteran's alopecia is not related to in-service herbicide exposure, is it at least as likely as not that alopecia was caused by the Veteran's service-connected PTSD? Please explain why or why not. c. If the Veteran's alopecia was not caused by the Veteran's service-connected PTSD, is it at least as likely as not that alopecia has been worsened beyond normal progression by the Veteran's service-connected PTSD? Please explain why or why not. d. If the examiner finds that the Veteran's alopecia was permanently worsened beyond normal progression (aggravated) by his service-connected PTSD, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of disability that is due to the PTSD. Please explain the reasoning for the conclusion reached. 3. After completing the above requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 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). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs