Citation Nr: 1803809	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  12-20 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for dermatitis of the hands, legs, feet, and tinea pedis, claimed as jungle rot.

2.   Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for sinusitis.

3.  Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include depression and anxiety.

4.  Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for coronary artery disease.

5.  Entitlement to service connection for coronary artery disease.

6.  Entitlement to service connection for deviated septum with chronic airway obstruction.

7.  Entitlement to service connection for valvular disease.

8.  Entitlement to service connection for hearing loss.

9.  Entitlement to a compensable disability rating for post-traumatic headaches.  

10.  Entitlement to an effective date prior to October 14, 2009 for non-Hodgkins Lymphoma.


REPRESENTATION

Appellant represented by:	Stephanie D. Dobson, Esq.


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel


INTRODUCTION

The Veteran served on active duty from March 1959 to April 1966 and from December 1967 to November 1975.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran requested a hearing before a Veterans Law Judge in connection with his issues on appeal; however, in an October 2016 statement, he withdrew this request. 

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) (West 2014).

The issue of entitlement to a compensable disability rating for post-traumatic headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On November 10, 2017, prior to the promulgation of a decision in the appeal, the Board received a request from the Veteran, through his authorized representative, to withdraw his appeal for the issues of whether new and material evidence has been presented in order to reopen claims for entitlement to service connection for dermatitis of the hands, legs, feet, and tinea pedis, claimed as jungle rot, for sinusitis, and for a psychiatric disorder, to include depression and anxiety, entitlement to service connection for hearing loss, and entitlement to an effective date earlier than October 14, 2009 for the award of service connection for non-Hodgkins lymphoma.

2.  In an unappealed July 2011 rating decision, the RO denied service connection for coronary artery disease.

3.  VA has received new evidence since a final July 2011 rating decision that denied service connection for coronary artery disease that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim.

4.  The Veteran was exposed to an herbicide agent, such as that in Agent Orange, during active service in the Republic of Vietnam and he currently has coronary artery disease.  

5.  The Veteran's deviated septum did not have onset during active service and was not caused by active service.  

6.  The Veteran does not have valvular heart disease.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the Veteran's appeal of the issues of whether new and material evidence has been presented in order to reopen claims for entitlement to service connection for dermatitis of the hands, legs, feet, and tinea pedis, claimed as jungle rot, for sinusitis, and for a psychiatric disorder, to include depression and anxiety, entitlement to service connection for hearing loss, and entitlement to an effective date earlier than October 14, 2009 for the award of service connection for non-Hodgkins lymphoma, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2.  The July 2011 rating decision denying service connection for coronary artery disease is final.  38 U.S.C. § 7105(C) (2012); 38 C.F.R. § 20.1103 (2017).

3.  New and material evidence has been received to reopen the claim of entitlement to service connection for a coronary artery disease.  38 U.S.C. § 5108(2012); 38 C.F.R. § 3.156 (2017).

4.  The criteria for entitlement to service connection for coronary artery disease have been met.  38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

5.  The criteria for entitlement to service connection for deviated septum with chronic airway obstruction have not been met.  38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 

6.  The criteria for entitlement to service connection for valvular disease have not been met.  38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawn Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran, through his authorized representative, has withdrawn his appeal of the issues of whether new and material evidence has been presented in order to reopen claims for entitlement to service connection for dermatitis of the hands, legs, feet, and tinea pedis, claimed as jungle rot, for sinusitis, and for a psychiatric disorder, to include depression and anxiety, entitlement to service connection for hearing loss, and entitlement to an effective date earlier than October 14, 2009 for the award of service connection for non-Hodgkins lymphoma.  As such, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues.  Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed.

II.a.  Claim to Reopen - Legal Criteria

Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 

New evidence is evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a).  Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim.  Id.

II.b.  Petition to reopen the claim of entitlement to service connection for coronary artery disease 

In a July 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for coronary artery disease (ischemic heart disease) because there was no evidence of a clinical diagnosis of coronary artery disease.  The Veteran was notified of the decision in July 2011, but did not file a notice of disagreement with the decision.  No new and material evidence was added to the record in the year following the decision.  As such, the decision is final.  38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2017) Since the July 2011 rating decision, the Veteran submitted VA medical records dated in September 2016, showing that he has diagnosed with coronary artery disease, and was status post coronary artery bypass graft (CABGx3).  As this evidence is new and pertains directly to the reason service connection was denied in the July 2011 rating decision, it is material.  As such, the claim is reopened.


III.a.  Service connection - Legal Criteria

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013).

III.b.  Service connection - coronary artery disease 

A Veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).

Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran (presumed exposed to an herbicide agent) who develops one of several enumerated conditions associated with herbicide agent exposure, to include ischemic heart disease.  The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 (West 2014); 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §3.309 (e).

In this case, the Veteran had service in the Republic of Vietnam and is therefore presumed to have been exposed to herbicides.  In addition, September 2016 VA medical records show a diagnosis and treatment for coronary artery disease.  Coronary artery disease is listed as a form of ischemic heart disease, and is one of the conditions presumed to be related to herbicide agent exposure under 38 C.F.R. § 3.309(e).  Therefore, as Board has found the Veteran was exposed to herbicide agents in service, service-connection for coronary artery disease is presumed.  The benefit sought on appeal is allowed.

III.c. Service connection - deviated septum with chronic airway obstruction

Service treatment records do not show any treatment for or diagnosis of a deviated septum with chronic airway obstruction.  There are no records showing that the Veteran had an injury to his nose.  

Current VA medical records do reflect a diagnosis of a deviated septum.  However, there is no evidence showing that this is etiologically linked to service.   Medical records do not link his deviated septum to service, and the Veteran has not provided any contentions or argument providing such a link.  

The Board also noted that there is no evidence that the Veteran's deviated septum causes or is related to a chronic airway obstruction.  The Board does note that the Veteran is presently service-connected for pulmonary emphysema.

Without any evidence of a current disability related to service, service connection cannot be granted.  As such, the Veteran's claim for entitlement to service connection for a deviated septum with chronic airway obstruction is denied.  

As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application.  

III.d.  Service connection - valvular disease

The Veteran's service treatment records do not reflect a diagnosis of or treatment for valvular disease.

The Board finds that the evidence of record does not reflect a current diagnosis of valvular disease.  In May 2011, when being assessed for medication, the Veteran denied moderate/severe valvular disease.

The Veteran has not made any clear contentions regarding his claim.

Without any evidence of a current disability, service connection cannot be granted.  As such, the Veteran's claim for entitlement to service connection for valvular disease is denied.  

As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application.  


ORDER
 
The claim of entitlement to service connection for coronary artery disease is reopened.

Service connection for coronary artery disease is granted.

Service connection for deviated septum with chronic airway obstruction is denied.

Service connection for valvular disease is denied.


REMAND

With regard to the Veteran's claim for a compensable disability rating for service-connected headaches, the most recent examination provided to the Veteran was in April 2013 to evaluate the severity of his headache disability.  At that time, the Veteran's headaches were rated noncompensable, with no prostrating attacks.  Since that time, the Veteran has submitted a self-reported headache log, showing more severe headaches, and a June 2015 VA medical record showed that the Veteran was having severe headaches.  As it appears the Veteran's service-connected headaches have worsened since the last examination, the Veteran should be afforded a new VA examination to determine the current severity of the disability.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Ensure that the Veteran is scheduled for a VA examination to determine the current level of severity of service-connected headaches. 

The claims file must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum.

The examiner should comment upon whether the Veteran's headaches are frequent, completely prostrating, and prolonged, and whether they are of such severity as to result in severe economic inadaptability.  The examiner should also specifically describe the Veteran's functional caused by the service-connected headache disability.

The examiner must provide reasons for each opinion. 

2.  Readjudicate the claim that is the subject of this remand.  If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



______________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs