Citation Nr: 1803820 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-26 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a skin disability, including secondary to herbicide exposure; and if so whether service connection is warranted. 2. Entitlement to service connection for sleep apnea, including secondary to herbicide exposure and/or service-connected disabilities. 3. Entitlement to service connection for a heart disability, including secondary to herbicide exposure and/or service-connected disabilities. 4. Entitlement to service connection for peripheral artery disease, including secondary to herbicide exposure and/or service-connected disabilities. 5. Entitlement to service connection for peripheral neuropathy, left upper extremity, including secondary to herbicide exposure and/or service-connected disabilities. 6. Entitlement to service connection for peripheral neuropathy, right upper extremity, including secondary to herbicide exposure and/or service-connected disabilities. 7. Entitlement to service connection for peripheral neuropathy, left lower extremity, including secondary to herbicide exposure and/or service-connected disabilities. 8. Entitlement to service connection for peripheral neuropathy, right lower extremity, including secondary to herbicide exposure and/or service-connected disabilities. 9. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has recharacterized the skin disability issue in light of the RO's November 2005 rating decision, which denied service connection for soft tissue sarcoma, including secondary to herbicide exposure, and to account for the entire scope of the Veteran's claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The reopened issue of entitlement to service connection for a skin disability, along with the issues of entitlement to service connection for sleep apnea, entitlement to service connection for a heart disability, and entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a November 2005 rating decision, the RO denied the Veteran's claim seeking service connection for soft tissue sarcoma, including secondary to herbicide exposure. In January 2006, the Veteran filed a notice of disagreement with this decision, which he subsequently withdrew in April 2006. 2. The Veteran did not perfect an appeal of the November 2005 rating decision or submit new and material evidence during the appeal period, and that decision is final. 3. Some of the evidence received since the November 2005 rating decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for a skin disability, including secondary to herbicide exposure. 4. The Veteran does not currently have peripheral artery disease. 5. The Veteran does not currently have peripheral neuropathy of the upper or lower extremities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a skin disability, including secondary to herbicide exposure. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for establishing service connection for peripheral artery disease, including secondary to herbicide exposure and/or service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for establishing service connection for peripheral neuropathy, right upper extremity, including secondary to herbicide exposure and/or service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for establishing service connection for peripheral neuropathy, left upper extremity, including secondary to herbicide exposure and/or service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303 (2017). 5. The criteria for establishing service connection for peripheral neuropathy, right lower extremity, including secondary to herbicide exposure and/or service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303 (2017). 6. The criteria for establishing service connection for peripheral neuropathy, left lower extremity, including secondary to herbicide exposure and/or service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include arteriolosclerosis and other organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). I. New and Material Evidence The Veteran was originally denied service connection for acne by a December 1980 rating decision. The Veteran was notified of this decision by a letter that same month but did not appeal or submit relevant evidence during the appeal period. In July 2005, the Veteran filed a claim seeking service connection for soft tissue sarcoma, including secondary to herbicide exposure. The RO denied this claim in a November 2005 rating decision. In January 2006, the Veteran filed a notice of disagreement with this decision, which he subsequently withdrew in April 2006. The Veteran did not perfect an appeal of the November 2005 rating decision or submit new and material evidence during the appeal period. Both the 1980 and 2005 decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; 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 of entitlement to 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. § 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). 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence considered at the time of the November 2005 rating decision included service treatment records, VA treatment records, and lay statements. The claim was denied because no current skin disability was found. The evidence received since the November 2005 rating decision includes evidence of a current skin disability. Specifically, a March 2012 VA treatment report listed diagnoses of unspecified and atrophic conditions of the skin and other seborrheic keratosis. As the threshold to reopen the claim is low, the Board finds that this evidence of a current skin disability, when considered with the other evidence of record, at least triggers the need for a VA examination. Id. Accordingly, the new evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claim for service connection is reopened. II. Service Connection Claims In December 2006, the Veteran filed his present claim seeking service connection for peripheral artery disease and peripheral neuropathy of the upper and lower extremities. He attributes both of these conditions to his inservice herbicide exposure and/or his service-connected disabilities. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for peripheral artery disease or peripheral neuropathy of any extremity. Following a physical examination of the Veteran and a review of his claims file, the VA examiner in July 2011 concluded that there was no evidence of peripheral artery disease. An October 2011 VA vascular surgery consult, citing a normal pulse examination and a normal ankle-brachial index study, also found no evidence of peripheral vascular disease. As for the Veteran's claimed peripheral neuropathy, the VA examiner in July 2011 determined that there was no evidence of peripheral neuropathy of the upper or lower extremities. A subsequent EMG examination, performed in August 2011, found no electrodiagnostic evidence of peripheral polyneuropathy, and the report concluded with an impression of a normal study. To the extent that the Veteran himself believes that he currently has peripheral artery disease and/or peripheral neuropathy of the upper and lower extremities, he has not shown that he has specialized training sufficient to render such an opinion. In this regard, such disabilities require medical testing and expertise to diagnose. Accordingly, his opinion as to whether he suffers from these disabilities is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the most probative medical evidence demonstrates that the Veteran does not suffer from such conditions. The Board finds the July 2011VA examination and subsequent VA treatment records to be of greater probative value than the Veteran's lay contentions herein. As the most probative evidence is against a finding that the Veteran currently has peripheral vascular disease or peripheral neuropathy of the upper and lower extremities, service connection for those conditions is not warranted. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER New and material evidence having been submitted, the claim for service connection for a skin disability, including secondary to herbicide exposure, is reopened, and to this extent only the appeal is granted. Service connection for peripheral artery disease, including secondary to herbicide exposure and/or service-connected disabilities, is denied. Service connection for peripheral neuropathy, left upper extremity, including secondary to herbicide exposure and/or service-connected disabilities, is denied. Service connection for peripheral neuropathy, right upper extremity, including secondary to herbicide exposure and/or service-connected disabilities, is denied. Service connection for peripheral neuropathy, left lower extremity, including secondary to herbicide exposure and/or service-connected disabilities, is denied. Service connection for peripheral neuropathy, right lower extremity, including secondary to herbicide exposure and/or service-connected disabilities, is denied. REMAND The Veteran is seeking service connection for a skin disability, sleep apnea, and heart disability, as well as entitlement to a TDIU rating. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A. Skin Disability Although the Veteran's January 2010 VA general physical examination found no current skin disability, a subsequent VA treatment report in March 2012 listed diagnoses of unspecified and atrophic conditions of the skin and other seborrheic keratosis. Given the Veteran's reported history of a skin disorder which began during service, along with newly obtained treatment records showing current skin disabilities, the AOJ must schedule an examination to determine if his current skin disabilities are related to his military service, including secondary to his inservice herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). B. Sleep Apnea The competent evidence of record does not address whether the Veteran's current obstructive sleep apnea has been aggravated by his service-connected disabilities. It also fails to directly address whether this condition was related to his military service. Under these circumstances, the AOJ must schedule an examination to determine if the Veteran's current sleep apnea is related to his military service, including secondary to his service-connected disabilities and his inservice herbicide exposure. C. Heart Disability The AOJ must schedule an examination to clarify the diagnosis for the Veteran's current heart disability. Although the VA examiner in December 2010 noted that the Veteran did not have ischemic heart disease, there was no discussion or mention of the July 2008 Adenosine Rest-Stress test which concluded with an impression of findings consistent with moderate anterior/apical ischemia, as well as moderate inferior ischemia. VA treatment records also document a diagnosis of ischemic heart disease in August 2008. D. TDIU rating The issue of entitlement to a TDIU rating is inextricably intertwined with the issues being developed herein. See 38 C.F.R. § 19.31; Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Relevant ongoing medical records should also be requested. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him during the course of this appeal for his skin disability, sleep apnea, and heart disability. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After completion of the foregoing, schedule the Veteran for a VA examination of the skin to identify his current skin disabilities and determine if any is related to his military service, including inservice exposure to herbicides. The claims file must be reviewed by the examiner in conjunction with the examination. Based on the clinical examination and review of the claims file, the examiner must respond to the following: (a) The examiner must identify all current skin disabilities found, including unspecified and atrophic conditions of the skin and other seborrheic keratosis. (b) For each skin disability identified, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include his in-service exposure to herbicide agents. The examiner should explain the reasons for the conclusions reached. 3. After completion of the foregoing, schedule the Veteran for a VA examination to determine if his current obstructive sleep apnea is related to his military service, including exposure to herbicides, or was caused or aggravated by his service-connected disabilities. The claims file must be reviewed by the examiner in conjunction with the examination. Based on the clinical examination and review of the claims file, the examiner must respond to the following: (a) The examiner must provide an opinion as to whether the Veteran's current obstructive sleep apnea is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include his in-service exposure to herbicide agents. The examiner must explain the reasons for the conclusion reached. (b) If not related to the Veteran's military service, the examiner should address whether it is at least as likely caused by or has been permanently worsened beyond normal progression (as opposed to a temporary exacerbation of symptoms) by his service-connected disabilities. The examiner must explain why or why not. 4. After completion of the foregoing, schedule the Veteran for a VA examination of the heart to identify all of his current heart disabilities and determine if any is related to his military service, including inservice exposure to herbicides, or were caused or aggravated by his service-connected disabilities. The claims file must be reviewed by the examiner in conjunction with the examination. Based on the clinical examination and review of the claims file, the examiner must respond to the following: (a) The examiner must identify all current heart disabilities found. In doing so, the examiner must consider the July 2008 Adenosine Rest-Stress test which concluded with an impression of findings consistent with moderate anterior/apical ischemia, as well as moderate inferior ischemia. (b) For each heart disability identified, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include his inservice exposure to herbicide agents. The examiner must explain the reasons for the conclusion reached. (c) For each current heart disability not related to the Veteran's military service, the examiner must address whether it is at least as likely caused by or has been permanently worsened beyond normal progression (as opposed to a temporary exacerbation of symptoms) by his service-connected disabilities. The examiner must explain why or why not. 5. The AOJ should then arrange for any further development on the claim for a TDIU rating suggested by the results of the development ordered above. 6. Once the above actions have been completed, and any additional development deemed necessary has been accomplished, the issues on appeal must be readjudicated. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review, 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). 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). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs