Citation Nr: 1802270 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-51 767 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for chloracne (also claimed as spot on both legs). 2. Entitlement to service connection for AL amyloidosis. 3. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for entitlement to service connection for residuals of cervical spine strain, to include as secondary to AL amyloidosis. 4. Entitlement to service connection for numbness of the bilateral upper extremities, to include as secondary to residuals of cervical spine strain. 5. Entitlement to service connection for numbness of the bilateral lower extremities, to include as secondary to residuals of cervical spine strain. 6. Entitlement to service connection for heart arrhythmia, to include as secondary to ischemic heart disease. 7. Whether the Veteran filed a timely substantive appeal with respect to the evaluations assigned to his service-connected residuals of flash burns with facial hyperpigmentation and to his service-connected cicatricial ectropion of both eyes with xerophthalmia in the August 2011 rating decision. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active service from February 1963 to September 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from January 2013 and May 2015 determinations of the VA RO. As part of his submissions for his cervical spine (neck) claim, the Veteran has repeatedly submitted medical records concerning his low back/lumbar spine. It is clear he intended his claims to encompass the lumbar spine as well. See, e.g., August and September 2011 statements claiming spondylosis secondary to herbicide exposure, with accompanying medical evidence where the Veteran has circled multiple entries concerning his low back. Since the RO did not separately consider the low back claim, the Board does not have jurisdiction to address it. This is REFERRED to the RO for appropriate action. The issue of entitlement to an increased rating for ischemic heart disease has been raised by the record in a November 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for chloracne, residuals of cervical spine strain, and numbness of the bilateral upper and lower extremities, and the issue of whether the Veteran filed a timely substantive appeal with respect to the evaluations assigned to his service-connected residuals of flash burns with facial hyperpigmentation and to his service-connected cicatricial ectropion of both eyes with xerophthalmia in the August 2011 rating decision are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. By a November 1991 rating decision, the Veteran's claim for service connection for a cervical spine strain was denied on the basis that residuals of a September 1972 cervical spine strain were not noted at the time of discharge. 2. Evidence received since the November 1991 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection for residuals of a cervical spine strain. 3. There is no competent evidence of record showing diagnosis of AL amyloidosis or heart arrhythmia. CONCLUSIONS OF LAW 1. The November 1991 rating decision denying the Veteran's claim for service connection for a cervical spine strain is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of service connection for residuals of a cervical spine strain has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. Service connection for AL amyloidosis is not warranted. See 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. Service connection for heart arrhythmia is not warranted. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for entitlement to service connection for residuals of cervical spine strain, to include as secondary to AL amyloidosis. The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for residuals of cervical spine strain. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran's claim for service connection for a cervical spine strain was previously denied in a November 1991 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). 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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis for the November 1991 denial was that residuals of a September 1972 cervical spine strain were not noted at the time of discharge. At the time of this denial, the Veteran's service treatment records were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran and post service medical records. With regard to the newly submitted medical evidence, the claims file contains a Neck (Cervical Spine) Disability Benefits Questionnaire (DBQ) signed by a physician in February 2014. The physician noted a diagnosis of spondylosis C5-6, C6-7 and determined that the Veteran's neck problems are at least as likely as not due to his previous training and duties while serving in the U.S. military. As the newly submitted evidence suggests that the Veteran's current cervical spine disability is related to his service, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate this claim. As such, this claim is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. 2. Entitlement to service connection for AL amyloidosis, and entitlement to service connection for heart arrhythmia, to include as secondary to ischemic heart disease. The Veteran is seeking entitlement to service connection for AL amyloidosis and heart arrhythmia. A review of his service treatment records and the post-service medical evidence reveals no complaints, treatment, or diagnoses of AL amyloidosis or heart arrhythmia. The Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claims, there is simply no medical evidence of record supporting his assertions that he has AL amyloidosis or heart arrhythmia. As for AL amyloidosis, the Veteran has merely filed this claim, with no supporting information. He has not referenced any medical professional who has diagnosed him with this condition, and none of the medical evidence in the file suggests such a diagnosis has ever been made. The Board notes it is possible he claimed this condition in error, as he also seems to alternatively refer to spondylosis of the spine. That is a separate condition, and a separate claim. The Veteran is service-connected for ischemic heart disease. It seems he may not understand this, as he keeps submitting further claims for service connection for heart disease. In the February 2014 Heart Conditions DBQ, the Veteran was diagnosed with atherosclerotic cardiovascular disease. The examiner specifically noted that the Veteran has not had cardiac arrhythmia. While the Veteran has submitted recent medical evidence from August 2017 from McCormick Hospital showing diastolic dysfunction grade 1, this evidence also does not document a diagnosis of heart arrhythmia. Again, while he is already service-connected for ischemic heart disease, there is no indication he has been diagnosed with heart arrhythmia. Moreover, the Board finds that the Veteran is not competent to diagnose himself with AL amyloidosis or heart arrhythmia, as he has no medical training or expertise. Therefore, the Board finds that there is no competent medical evidence diagnosing the Veteran with AL amyloidosis or heart arrhythmia, and the Veteran is not competent to diagnose himself with such diseases. As such, the Board finds that the preponderance of the evidence is against the claims for service connection for AL amyloidosis and heart arrhythmia, and the benefit-of-the-doubt rule is not for application. ORDER As new and material evidence has been submitted regarding the claim for service connection for residuals of cervical spine strain, the Veteran's claim is reopened. Entitlement to service connection for AL amyloidosis is denied. Entitlement to service connection for heart arrhythmia, to include as secondary to ischemic heart disease, is denied. (CONTINUED ON NEXT PAGE) REMAND Additional development is needed prior to the adjudication of the remaining claims on appeal. Cervical Spine With regard to the issue of entitlement service connection for residuals of a cervical spine strain, the Veteran's service treatment records reveal that he was involved in a motor vehicle accident in September 1972 and was diagnosed with an acute strain of the cervical spine. The Veteran also asserted in a November 2017 statement that he injured his spine by falling off the back of a truck in September 1964. This fall is documented in his service treatment records. As noted above, the claims file contains a Neck (Cervical Spine) DBQ signed by a physician in February 2014, diagnosing him with spondylosis C5-6, C6-7 and finding that the Veteran's neck problems are at least as likely as not due to his previous training and duties while serving in the U.S. military. While the Board has considered the February 2014 opinion, the Board notes that there is no indication that this physician reviewed the claims file. Moreover, clinical evaluation of the Veteran's spine and neck was noted as normal on his July 1991 Report of Medical Examination upon retirement from service. The physician did not address this fact. As such, the Board finds that a VA medical opinion must be obtained to address the etiology of any diagnosed cervical spine disability. Numbness of the bilateral upper and lower extremities With regard to the issues of entitlement to service connection for numbness of the bilateral upper and lower extremities, the Veteran asserted in his notice of disagreement (NOD) that his numbness of the hands, feet, and arms were secondary to a cervical spine injury. The Veteran also indicated in an October 2017 statement that he injured his hand by falling off of a truck in September 1964. A September 1964 service treatment record noted that the Veteran fell off of the truck and hurt his right thumb. A March 1981 service treatment record noted that the Veteran had a Boxer's fracture of the 5th metacarpal on the right hand. The claims file contains a February 2014 Peripheral Nerve Condition DBQ, in which a physician diagnosed the Veteran with radiculopathy of the cervical spine and noted the Veteran's complaints of numbness and tingling of both arms and hands. The physician also noted that the Veteran has numbness and tingling when he stands for prolonged periods of time. The physician went on to find that the Veteran's nerve symptoms are most likely due to his neck problems. In light of the Veteran's allegations and the February 2014 Peripheral Nerve Condition DBQ, the Board finds that these issues should be remanded in order to obtain a VA medical opinion addressing the etiology of any diagnosed radiculopathy of either the upper or the lower extremities. Chloracne The Veteran is seeking entitlement to service connection for chloracne. The Veteran is already service connected for acne keloidosis on the back of the neck. In an October 2016 Statement of Accredited Representative in Appealed Case, the representative stated that the Veteran is already service connected for acne but he reported a lump/cysts on his thighs on May 5, 1978, and was diagnosed with chloracne in 1973, which was noted by a VA examiner. A review of the Veterans' service treatment records reveals a long history of treatment for acne keloidosis throughout his service. A March 1969 service treatment record noted that the Veteran had a long history of folliculitis keloidosis. A September 1973 service treatment record noted an 8-year history of nodules on the back of his neck and a diagnosis of acne keloidosis. A May 5, 1978, service treatment record noted early cellulitis of the left leg. In an August 1980 Report of Medical Examination, it was noted that the Veteran had acne keloidosis on his posterior neck. The Veteran's July 1991 Report of Medical Examination upon retirement from service noted chronic folliculitis of the back of the neck with keloid formation. On a February 2014 Skin Diseases DBQ, the physician noted the Veteran as having a diagnosis of acne vulgaris since February 2014 and a diagnosis of chloracne since January 1973. The examiner noted the Veteran's chloracne as including superficial and deep acne that affects less than 40 percent of his face and neck. The examiner specifically did not mark that this condition affects body areas other than the face and the neck. The Board notes that this diagnosis of chloracne appears to be inconsistent with the other acne diagnoses of record. Moreover, the examiner specifically noted that the Veteran's skin condition affects the face/neck but failed to consider the Veteran's assertions that this condition afflicts other parts of his body, to include his legs. As such, the Board finds that a VA medical opinion should be obtained addressing this matter. Ratings for Flash Burns and Eyes Finally, the Board notes that the Veteran was denied claims for increased ratings for his service-connected residuals of flash burns with facial hyperpigmentation and his service-connected cicatricial ectropion of both eyes with xerophthalmia in a February 12, 2015, statement of the case (SOC), stemming from an August 2011 rating decision granting service connection for these disabilities. On April 27, 2015, the Veteran submitted a substantive appeal. On May 7, 2015, the Veteran was issued a letter informing him that his substantive appeal was not timely. In July 2015, the Veteran submitted a NOD indicating that he disagreed with the finding from the May 7, 2015, letter. The Veteran has not been afforded a statement of the case (SOC) addressing the issue of whether the April 2015 substantive appeal was timely. Therefore, this claim must now be remanded to allow the RO to provide the Veteran with an appropriate SOC on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with a SOC as to the issue of whether he filed a timely substantive appeal with respect to the evaluations assigned to his service-connected residuals of flash burns with facial hyperpigmentation and to his service-connected cicatricial ectropion of both eyes with xerophthalmia in the August 2011 rating decision. The Veteran must be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. If a timely substantive appeal is not filed with respect to this issue, the claim must not be certified to the Board. 2. Provide the claims file to an appropriate VA examiner to address the etiology of any diagnosed cervical spine disabilities of record. The examiner should review the claims file, to particularly include the February 2014 Neck (Cervical Spine) DBQ. All findings should be reported in detail. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that any diagnosed cervical spine disability was incurred during, or was caused or aggravated by, his active duty service. In providing this opinion, the examiner should specifically discuss the Veteran's 1964 and 1972 injuries. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, attempts should be made to obtain an examination of the Veteran, keeping in mind that he currently resides in Bangkok. 3. Provide the claims file to an appropriate VA examiner to address the etiology of any diagnosed radiculopathy of the upper or the lower extremities. The examiner should review the claims file, to particularly include the February 2014 Peripheral Nerve Conditions DBQ. All findings should be reported in detail. The examiner should be asked to respond to the following: a. Does the Veteran have a current diagnosis of peripheral neuropathy or radiculopathy of any of the upper or the lower extremities? b. If so, is it at least as likely as not that the Veteran's radiculopathy or peripheral neuropathy of any of the upper or the lower extremities is caused or aggravated by his service; by a service-connected disability; or by a cervical spine disability of any kind? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, attempts should be made to obtain an examination of the Veteran, keeping in mind that he currently resides in Bangkok. 4. Provide the claims file to an appropriate VA examiner to address the etiology of any diagnosed acne disability of record. The examiner should review the claims file, to particularly include the February 2014 Skin Diseases DBQ. All findings should be reported in detail. The examiner should respond to the following: a. Does the Veteran have a current diagnosis of chloracne? b. If so, what areas of the body are affected by this chloracne? Is this diagnosis a change in his prior diagnosis of keloidosis acne or is this the same condition? c. If the Veteran is diagnosed with an acne condition other than acne keloidosis, is it at least as likely as not that this condition was incurred during, or was caused or aggravated by, his active duty service, to include in-service exposure to herbicides? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinions, attempts should be made to obtain an examination of the Veteran, keeping in mind that he currently resides in Bangkok. 5. Then, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2017). 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs