Citation Nr: 1801515 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an asbestos-related lung disorder, and if so whether the reopened claim should be granted. 2. Entitlement to service connection for peripheral neuropathy of the extremities. 3. Entitlement to service connection for peripheral vascular disease. 4. Entitlement to an initial rating in excess of 50 percent for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from January 1968 to December 1971. This matter came before the Board of Veterans' Appeals (Board) from October and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing before the undersigned Veterans Law Judge was held at the RO in September 2016. The hearing transcript has been associated with the claims file. Additional evidence, notably additional VA treatment records, were uploaded into the electronic record in January 2017, after the March 2014 statement of the case, without consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2017). The additional evidence is not pertinent to the claims adjudicated herein (any relevant information is cumulative). Thus, there is no need to remand for consideration in the first instance. As will be discussed further below, the Board finds that new and material evidence sufficient to reopen the previously denied claim for asbestos-related lung disorder has been received. The Board is granting this aspect of the Veteran's appeal. The reopened claim for service connection and the increased rating claim are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. A February 2009 rating decision denied an application to reopen a claim of service connection for asbestosis. The appellant did not appeal. The evidence received subsequent to the February 2009 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. 2. The peripheral neuropathies were not present until many years after discharge and are not etiologically related to service. 3. The Veteran does not have, and has not had, peripheral vascular disease. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for asbestosis has been presented. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for peripheral neuropathy of each extremity have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2012); 38 C.F.R. §§ 3.303, 3.3.07, 3.309 (2017). 3. The criteria for service connection for peripheral vascular disease have not been met. 38 U.S.C.A. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Application to Reopen Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (West 2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Claims for service connection for asbestosis were denied in February 1999 and February 2009 rating decisions due to lack of a diagnosis of asbestosis or an asbestos-related lung disease. The Veteran was notified of the decisions but did not appeal or submit pertinent evidence within the appeal period. Evidence added to the record after the February 2009 decision includes a December 2016 assessment of asbestos-induced pleural plaque. This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim, notably the existence of asbestos-related lung disease. Accordingly, reopening of the claim for service connection is in order. Claims for Service Connection Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), 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. The record reflects that the duty to assist has been satisfied. The available service medical records, VA treatment and examination records, and post-service medical evidence identified by the Veteran have been obtained, including Social Security Administration (SSA) records. The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim decided herein. The record does not include VA examination findings addressing the claims for service connection. However, the Board finds a remand for examination and/or opinion is not required because there is no indication that the record is inadequate to adjudicate either claim. Accordingly, the Board will address the merits of the Veteran's appeal. Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests peripheral vascular disease or organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Analysis: Peripheral Neuropathy The Board finds the current peripheral neuropathy did not onset within a year of discharge from service and is not otherwise etiologically related to service. Initially, the Board finds the peripheral neuropathy was not present until more than one year after discharge from service. The service treatment records reveal no complaint or finding suggestive of neuropathy of any extremity, the separation examination record reflects normal clinical findings and no history suggestive of neuropathy, and the first record of possible neuropathy dates in October 2006, nearly 35 years after discharge from service. There is no medical evidence dating the onset of the peripheral neuropathy to service or within a year of discharge, and the Veteran has not reported the existence of symptoms currently attributed to neuropathy during and since service. The Board further finds the current neuropathy is not related to service. There is no medical or competent lay evidence of record linking the neuropathy to service. Rather, the medical evidence links the neuropathy to diabetes, alcohol use, and/or lumbar and cervical spine disorders. See, e.g., October 2006, March 2007, and October 2008 VA treatment records. Service connection is not in effect for any of these disorders. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. Analysis: Peripheral Vascular Disease Service connection is not warranted for peripheral vascular disease. The Board has carefully reviewed the evidence of record but finds no probative evidence of peripheral vascular disease during the period of the claim. Although the record includes a finding of "rule out peripheral vascular disease" in October 2008, this diagnosis was not corroborated, and the Board finds it was effectively ruled out by the normal Doppler study performed subsequently in October 2008. Thus, the Board finds the October 2008 finding of "rule out peripheral vascular disease" is not probative evidence of peripheral vascular disease. In the absence of a current diagnosis, service connection is not warranted for peripheral vascular disease. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for a asbestos-related lung disorder is granted. Service connection for peripheral neuropathy of the extremities is denied. Service connection for peripheral vascular disease is denied. REMAND Regarding the claim for service connection for asbestosis, the Board finds the record would benefit from a medical opinion addressing whether the Veteran has an asbestos-related lung disease related to service. Regarding the increased rating claim, the Board finds the Veteran should be afforded another VA examination to determine the current degree of severity of the psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all pertinent, outstanding medical records. 2. Afford the Veteran an examination to determine whether the Veteran has asbestos-related lung disease due to service. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should clarify whether the Veteran has an asbestos-related lung disease, such as asbestosis. If so, the examiner should state whether it is at least as likely as not (50 percent probability or more) that the disease began in service or is etiologically related to the Veteran's active service, to include asbestos exposure in service. The examiner must provide a rationale for all opinions expressed, with consideration of the in-service duties as a fireman; the normal x-ray imaging of the chest during service (dated in May 1969, January 1970, June 1970, and November 1971) and after service in March 1973, August 1996, April 1997, October 2007, November 2007, January 2009, April 2009, June 2009, August 2009, and October 2009; the normal computerized tomography of the lung base in October 2002; the findings of the May 2010 VA examination, and the December 2016 finding of pleural plaques. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. 3. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected psychiatric disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure that the examiner provides all information required for rating purposes, including the effect on occupational functioning. 4. Thereafter, readjudicate the Veteran's claims with consideration of all evidence associated with the record since the March 2014 statement of the case. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs