Citation Nr: 1801714 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-02 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for monoclonal gammopathy of undetermined significance (M.G.U.S.). 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. 3. Entitlement to service connection for degenerative arthritis of the back with nerve damage. 4. Entitlement to service connection for degenerative arthritis of the cervical spine. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Michael V. Quatrini, Attorney ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 1967 to June 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A January 2013 rating decision denied service connection for degenerative arthritis of the Veteran's back with nerve damage, degenerative arthritis of his cervical spine, COPD, and peripheral neuropathy of his bilateral upper and lower extremities. After the issuance of the December 2013 statement of the case, regarding the service connection claims for bilateral upper and lower extremity peripheral neuropathy, additional relevant medical evidence was associated with the claims file without a waiver of initial AOJ. Nevertheless, the Board has determined "that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." See 38 C.F.R. § 20.1304(c) (2017). Thus, there is no harm to the Veteran in proceeding without the waiver. A December 2016 rating decision denied service connection for M.G.U.S., to which the Veteran filed a timely notice of disagreement in January 2017. While a substantive appeal is not presently of record, the Board takes jurisdiction of such claim, noting that the timeliness of a substantive appeal may be waived as it is non-jurisdictional in nature. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (a substantive appeal is not required to confer jurisdiction on the Board and the Board may waive the filing of a substantive appeal); Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Beryle v. Brown, 9 Vet. App. 24, 28 (1996). Given the favorable outcome of this decision as to the claim for service connection for M.G.U.S., no conceivable prejudice to the Veteran could result from adjudication of the M.G.U.S. claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) In January 2017, the Veteran's attorney requested that his statement serve as a notice of disagreement (NOD) with the December 2016 rating decision that also declined to reopen previously denied claims for service connection for chronic insomnia and erectile dysfunction. See 1/20/17 Power of Attorney (incl. VA 21-22, VA 21-22a). These matters are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action, including provision of the requisite form (21-0958) needed to submit a NOD as to the denial of the request to reopen the claims for service connection for chronic insomnia and erectile dysfunction. 38 C.F.R. §§ 3.155, 19.9(b) (2017). The issues of entitlement to service connection for degenerative arthritis of the back with nerve damage, degenerative arthritis of the cervical spine, and COPD, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The weight of the medical evidence demonstrates that the Veteran's M.G.U.S. is related to his exposure to herbicide agents in service. 2. The weight of the medical evidence demonstrates that the Veteran's sensori-motor axonal polyneuropathy (claimed as peripheral neuropathy of the bilateral upper and lower extremities) is proximately due to his M.G.U.S. CONCLUSIONS OF LAW 1. The criteria for service connection for M.G.U.S. have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for secondary service connection for sensori-motor axonal polyneuropathy (claimed as peripheral neuropathy of the bilateral upper and lower extremities) have been met. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Contentions The Veteran asserts that he has upper and lower extremity neuropathy and M.G.U.S. due to his active military service including his exposure to herbicides. See e.g., 6/29/12 VA 21-4138 Statement in Support of Claim. Legal Criteria Under 38 U.S.C. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain specified chronic diseases, including other organic diseases of the nervous system, but not M.G.U.S., may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). By regulation, VA has placed additional limitations on grants of service connection based on the basis of aggravation. 38 C.F.R. § 3.310(b). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Service incurrence for certain diseases, including early-onset peripheral neuropathy, but not M.G.U.S. or sensori-axonal polyneuropathy, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VBA Adjudication Manual, M21-1, IV.ii.2.C. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in the Project CHECO Southeast Asia Report: Base Defense in Thailand (CHECO Report). Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFB) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1, M21-1, IV.ii.1.H.5.b. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Facts Service personnel records clearly show that the Veteran was stationed at the RTAFB in Don Muang, Thailand, during 1968. See 10/13/14 STR-Medical, pages 62-63. His military occupation was security policeman. In the January 2013 rating decision, the RO conceded the Veteran's exposure to herbicides. While not bound by this determination, the Board has no reason to contradict the RO's finding. Giving the Veteran the benefit of the doubt, the Board finds that his job duties brought him near the perimeter of the Don Muang RTAFB and he was likely exposed to herbicides during service. Based on the facts of this case, the Board finds an in-service event, exposure to herbicides. Current diagnoses of M.G.U.S., bilateral median and ulnar nerve neuropathy, and small fiber neuropathy, are established by the medical evidence of record, in April 2016 VA medical reports. See 9/28/16 Medical Treatment Government Facility, page 4; 4/18/16 VA examination, page 1; 4/4/16 VA examination, page 1. In April 2016, a VA neurologist reported finding diminished sensory and reflex responses in the Veteran's upper and lower extremities, and that results of electromyography/nerve conduction (EMG/NCS) tests in November 2014 showed changes most consistent with bilateral median mononeuropathies and bilateral ulnar neuropathies, and limited lower testing was normal. See 9/28/16 Medical Treatment Government Facility, page 4. A later-dated April 2016 electrophysiologic evaluation of the Veteran's upper and lower extremities suggested chronic diffuse motor/axonal polyneuropathy and marked chronic bilateral median and ulnar neuropathies. See 9/28/16 Medical Treatment Government Facility, page 5. Service connection for M.G.U.S. and sensori-axonal polyneuropathy of the upper and lower extremities as due to exposure to herbicides is not warranted on a presumptive basis. Indeed, M.G.U.S., and sensori-axonal polyneuropathy of the upper and lower extremities, are not among the diseases listed under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not warranted. In any event, the Veteran is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120. Service connection requires evidence of a current disability related to active service. 38 C.F.R. § 3.303. Here, the record includes evidence of direct causation. In September 2016, the Veteran's VA neurologist noted the Veteran's "painful diffuse sensori-motor axonal polyneuropathy." See 9/28/16 Medical Treatment Record Government Facility. The physician also noted the Veteran's exposure to Agent Orange during active service. According to the medical specialist, the Veteran's painful diffuse sensori-motor axonal polyneuropathy "is at least as likely as not related to his M.G.U.S. and his M.G.U.S. is at least as likely as not related to his Agent Orange exposure." In support of his opinion, the neurologist cited to relevant medical literature and provided the article in full. There is no medical opinion of record that contradicts this opinion. As such, service connection for M.G.U.S., and sensori-axonal polyneuropathy (claimed as peripheral neuropathy of the upper and lower extremities) as due to MGUS, is warranted and the Veteran's appeal is granted. 38 U.S.C. §§ 5107(b), 1116(b); 38 C.F.R. §§ 3.303, 3.310. ORDER Service connection for M.G.U.S. is granted. Service connection for sensori-axonal polyneuropathy (claimed as peripheral neuropathy of the upper and lower extremities) is granted as proximately due to M.G.U.S. REMAND Back and Cervical Spine Disorders The Veteran contends that his neck and back disabilities, including degenerative bulging disc, herniated discs, and nerve damage, that resulted in a recent cervical fusion, are a result of an assault by Thai nationals in mid-1969 for which he was hospitalized for back, neck, facial, and head injuries. See 6/29/12 VA 21-4138 Statement in Support of Claim; 3/15/12 VA 21-4138. He reported treatment at a local hospital for two days in April, May, or June of 1969. See 4/5/12 VA 21-0820 Report of General Information. Although, in August 2008, he reported that his job as a security policeman required that he walk and stand for prolonged periods for security purposes (to which he was evidently attributing his claimed disabilities) and, in December 2009, he stated that he had a degenerative spinal condition whose onset was "unknown" and resulted in cervical spine surgery. See 8/25/08 VA-2148; 12/29/09 VA 21-4138. Service treatment records show that, on May 14, 1969, the Veteran fell while drinking three days earlier, was unconscious, and had a contusion to his left parietal area. See 8/15/11 Medical Treatment Record Government Facility, page 1. On May 18, 1969, he was hospitalized for six days after he was hit in the face during a fight and fractured his nasal bone and lacerated his upper lip. Id. at 4. The clinical record of his hospitalization indicates that he was reportedly struck by several Thai nationals on May 18, 1969. The discharge diagnoses were nasal fracture, abrasions, and contusions. Id. at 3. The post service medical evidence shows that the Veteran underwent cervical decompression and instrumented fusion in January 2009 after a long history of cervical stenosis, with progressively worsening neck and bilateral upper extremity pain. See 10/13/14 Medical Treatment Records Furnished by SSA (1st set), pages 17, 49. A January 2009 magnetic resonance (MRI) image of the Veteran's thoracic spine was considered unremarkable. See 10/13/14 Medical Treatment Records Furnished by SSA (3rd set), pages 17-19. The impression of a March 2012 MRI of his thoracic spine was grade 1 anterolisthesis with angulation and kyphotic deformity at C7-T1. See 6/29/12 Medical Treatment Record Government Facility, page 15. In light of the Veteran's service treatment records, his lay statements, and his post-service diagnoses of cervical and thoracic spine disorders, he should be afforded a VA examination to assess the nature and etiology of his cervical and other spine disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). As the Board finds that low threshold has been met by the lay evidence described above, it also finds that a VA examination and opinion are necessary to decide these issues. COPD The Veteran also asserts that he has COPD that is due to his exposure to herbicides. His exposure to herbicides is not in doubt, as discussed above. A June 2008 VA examiner noted the Veteran's long history of smoking and diagnosed COPD and a June 2010 VA examiner diagnosed COPD with chronic tobacco use. Neither examiner addressed if the COPD was due to the Veteran's herbicide exposure. Here, too, in light of the Veteran's exposure to herbicides and his post service diagnosis of COPD, he should be afforded a VA examination to assess the nature and etiology of his COPD disorder. See McLendon, 20 Vet. App. at 83. Records The Veteran told the June 2010 VA examiner that he was diagnosed with COPD at the VA medical center (VAMC) on University Drive in approximately 2004. There are no VA medical records in the claims file dated prior to 2008. This suggests that the Veteran received VA medical treatment prior to 2008. VA has a duty to obtain these relevant VA medical records and they will be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA medical records regarding the Veteran's treatment, he has noted such at the Pittsburgh VAMC (University Drive) prior to 2008 and since 2004, and from December 2016. If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to his claims. 2. After completing the development requested above, schedule the Veteran for VA examinations, preferably with an orthopedist and pulmonologist, to determine whether any current back, cervical spine, and/or COPD disability is the result whole or part of disease or injury in service. The claims folder, including this remand, should be reviewed. a. Back and Cervical Spine i. For each current back and cervical spine disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current (present at any time since 2011) back and/or cervical spine disabilities, in whole or part, had their onset in service, or are otherwise the result of a disease or injury in service, including his prolonged walking and standing on security patrols and May 1969 altercations noted in the service treatment records. b. COPD i. For any current COPD disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current (present at any time since 2011 COPD, in whole or part, had its onset in service, is related to his exposure to herbicides, or is otherwise the result of a disease or injury in service. c. The examiner(s) should provide a comprehensive rationale for any opinion. The examiner(s) is(are) asked to discuss, as appropriate, the Veteran's post-service reports of symptoms. Other points of note: i. the Veteran is competent to report symptoms and observable history; ii. the absence of evidence of treatment for neck, back, and/or breathing symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. d. If the examiner(s) is(are) unable to provide an opinion without resort to speculation, the examiner should explain whether this is due to the limits of medical knowledge in general, the limits of the examiner's medical knowledge, or there is additional evidence that would permit the needed opinion to be provided. 3. If any benefit on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if in order 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. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs