Citation Nr: 1805865	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  17-26 733	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Entitlement to compensation for renal failure.

2. Entitlement to service connection for hypertension.

3. Entitlement to service connection for porphyria cutanea tarda.

4. Entitlement to service connection for peripheral neuropathy of the upper extremities.

5. Entitlement to service connection for peripheral neuropathy of the lower extremities.

6. Entitlement to service connection for a disability of the bones.

7. Entitlement to service connection for a disability manifested by memory loss.

8. Entitlement to service connection for sinusitis.

9. Entitlement to service connection for a disability manifested by leg and chest muscle movements.  


REPRESENTATION

Appellant represented by:	Richard L. Palmatier, Jr., Esq.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

William Skowronski, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from July 1967 to July 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2014 and December 2015 rating decisions by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO).  The November 2014 rating decision denied service connection for hypertension, porphyria cutanea tarda, peripheral neuropathy of the upper and lower extremities, a disability of the bones, a disability manifested by memory loss, sinusitis, and a disability manifested by leg and chest muscle movements.  The December 2015 rating decision, in pertinent part, denied service connection for kidney failure.  In December 2017, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record.  At the hearing, the Veteran requested, and was granted, a 30-day abeyance period for submission of additional evidence.  [He had also initiated an appeal of a denial of service connection for bilateral hearing loss and tinnitus, but an interim (May 2017) rating decision granted service connection for such disabilities, and those matters are not before the Board.]

In a November 2015 statement (and in additional statements since, including at the December 2017 Board hearing) the Veteran asserted he has renal failure due in part to inadequate care by VA treatment providers.  In a June 2017 substantive appeal, his attorney asserted medical records show that the Veteran has prediabetes, suggesting service connection is warranted for such disability.  The matters of entitlement to compensation for renal failure under 38 U.S.C. § 1151 and entitlement to service connection for prediabetes have been raised by the record but not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are 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 matters of service connection for renal failure, hypertension, porphyria cutanea tarda, peripheral neuropathy of the upper and lower extremities, and sinusitis are being REMANDED to the AOJ.  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1. There is no competent evidence that the Veteran has a disability of the bones or that any such disability might be related to his service.

2. There is no competent evidence that the Veteran has a disability manifested by memory loss or that any such disability might be related to his service.

3. There is no competent evidence that the Veteran has a disability manifested by leg and chest muscle movements or that any such disability might be related to his service.


CONCLUSIONS OF LAW

1. Service connection for a disability of the bones is not warranted.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2. Service connection for a disability manifested by memory loss is not warranted.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

3. Service connection for a disability manifested by leg and chest muscle movements is not warranted.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  

The Board acknowledges August 2014 correspondence that would have satisfied VA's duty to notify by notifying the Veteran of the information needed to substantiate and complete his claims of service connection for a disability of the bones, a disability manifested by memory loss, and a disability manifested by leg and chest muscle movements, to include notice of the information that he was responsible for providing and the evidence that VA would attempt to obtain, was returned as undeliverable.  However, during the December 2017 Board hearing, the undersigned explained the law governing establishment of service connection, advised the Veteran of the bases for the denials of service connection for a disability of the bones, a disability manifested by memory loss, and a disability manifested by leg and chest muscle movements, and explained what type of evidence would establish service connection for such disabilities.  His testimony reflects he has knowledge of the elements necessary to substantiate his claims.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  He has had ample opportunity to respond/supplement the record (he was afforded an abeyance period for the submission of additional evidence) and is not prejudiced by any technical notice defect (including in timing) that may have occurred.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

In a June 2017 substantive appeal and a December 2017 appellate brief, the Veteran's attorney argues VA's duty to assist was not satisfied because VA did not contact the Veteran to address his contentions when requested, did not arrange for VA examinations in connection with the claims pertaining to disabilities of the bones, manifested by memory loss, and manifested by leg and chest muscle movements, and did not provide notification that the appeals had been certified to the Board.  However, as noted by the attorney, an October 2016 report of general information notes a VA employee twice unsuccessfully attempted to contact the Veteran by telephone (after he requested to discuss his appeals over the phone).  He was also able to present his contentions in numerous statements that were associated with the record and considered by the AOJ, and at the hearing before the Board.  Notification that his appeals had been certified to the Board was mailed to the Veteran and his attorney in July 2017.  While the AOJ did not arrange for VA examinations in connection with the claims pertaining to disabilities of the bones, manifested by memory loss, and manifested by leg and chest muscle movements, such examinations are not necessary because the record does not contain any evidence suggesting that any such disabilities may be related to the Veteran's active duty service.  He alleges such disabilities are related to exposure to Agent Orange in service.  While the Board concedes herein that he was exposed to herbicide agents in service, the record does not contain any competent medical evidence suggesting there may be a link between the claimed disabilities and such exposure [such disabilities are not listed in 38 C.F.R. § 3.309(e)].  Even the low threshold standard (for determining when an examination is needed) endorsed by the U.S. Court of Appeals for Veterans Claims (CAVC) in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met.  See 38 C.F.R. § 3.159(c)(4).  

The Veteran and his attorney have not raised any other issues regarding VA's duties to notify and 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 duty to assist argument).

Factual Background

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnoses related to a disability of the bones, a disability manifested by memory loss, and a disability manifested by leg and chest muscle movements.

In June 2014, the Veteran filed a claim for service connection for "some memory loss," "possible bone issues," and "tingling muscle movement in legs and chest muscles."  He asserted such disabilities were due to exposure to herbicide agents, including Agent Orange, while serving along the Korean demilitarized zone (DMZ).  An October 1968 STR notes he was treated at the 1st Battalion, 38th Infantry unit dispensary.  As such unit is listed among those that the Department of Defense (DoD) has identified as operating in the Korean DMZ during the qualifying time period of April 1, 1968 to August 31, 1971, it may reasonably be conceded that he was exposed to Agent Orange while serving in Korea.  See 38 C.F.R. § 3.307, VA Adjudication Procedures Manual (M21-1), Part IV, Subpart ii, Chapter 1, Section H.

In a November 2014 notice of disagreement, the Veteran reported he has experienced memory loss since service.  

At the December 2017 Board hearing, the Veteran testified he experiences memory loss; his attorney stated he did not believe there was a diagnosis of memory loss.  The Veteran also reported that he believed he was prescribed medication for bone loss.

Legal Criteria

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military 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 that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To substantiate a claim of service connection, there must be evidence of: a present disability (for which service connection is sought); incurrence or aggravation of a disease or injury in service; and a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Analysis

The initial threshold matters that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disabilities for which service connection is sought (a disability of the bones, a disability manifested by memory loss, and a disability manifested by leg and chest muscle movements).  In the absence of proof of such current disabilities, these are no valid claims for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

There is no competent evidence that the Veteran has (or during the pendency of this claim has had) a disability of the bones, a disability manifested by memory loss, or a disability manifested by leg and chest muscle movements.  His service and postservice treatment records do not show any such disabilities.  Notably, VA treatment records described his memory as normal.  The Board has considered the Veteran's own reports that he has disabilities of the bones, manifested by memory loss, and manifested by leg and chest muscle movements due to the conceded exposure to Agent Orange in service.  He is competent to report the symptoms he experiences, such as memory loss and a tingling muscle movement in legs and chest muscles.  [The Board notes the Veteran reports of a tingling sensation in his legs are also associated with the matter of service connection for peripheral neuropathy of the lower extremities, which is being remanded for further development.]  However, as a layperson, he is not competent to establish by his own opinion that he has pathology underlying the complaints that constitutes a compensable disability; that is a medical question that requires medical expertise or to offer an opinion regarding the possible etiology of any such disabilities.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007).  He does not cite to supporting medical opinion or medical literature.

Without competent evidence of a disability of the bones, a disability manifested by memory loss, and/or a disability manifested by leg and chest muscle movements, there are no valid claims of service connection for such disabilities.  See Brammer, 3 Vet. App. at 225.  The preponderance of the evidence is against these claims; therefore, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  The appeals in these matters must be denied.


ORDER

Service connection for a disability of the bones is denied.

Service connection for a disability manifested by memory loss is denied.

Service connection for a disability manifested by leg and chest muscle movements is denied.


REMAND

The Board finds that further development of the record remains necessary for proper adjudication of the matters of service connection for renal failure, hypertension, porphyria cutanea tarda, peripheral neuropathy of the upper and lower extremities, and sinusitis.  

At the December 2017 Board hearing, the Veteran reported that records of his treatment by a private provider, Dr. Asin, are not associated with the record but that he was not certain whether the physician was still practicing.  His attorney argued such records could include lab tests results that are relevant to the matters of service connection for renal failure and hypertension, both of which have been diagnosed.  An Internet search showed that a Dr. Gerald Asin appears to still be practicing in Paradise Valley, Arizona.  As it has been alleged that records of such treatment may contain pertinent information, the records must be sought.

The Veteran has not been afforded a VA examination to ascertain the etiology of his hypertension.  In December 2017, his attorney submitted an Internet article and cover page of a VA medical study that suggest there is a link between hypertension and exposure to Agent Orange.  While such evidence lacks probative value in this case (as it is not specific to the Veteran's claim), it is sufficient to trigger development for an examination to secure a nexus medical advisory opinion.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

At the December 2017 Board hearing, the Veteran testified he experienced left arm numbness while serving as a drill instructor at Fort Gordon, Georgia.  He also reported he has experienced recurrent episodes of left arm numbness since service.  A December 2014 VA treatment record notes the Veteran complained of left leg numbness and reported it had given out on him.  Early-onset peripheral neuropathy may be service connected on a presumptive basis as due to exposure to herbicide agents (Agent Orange) in service if it is manifested to a compensable degree within a year following a veteran's last exposure to an herbicide agent in service.  38 C.F.R. § 3.307(a)(6)(ii).  The threshold questions in this matter (whether the Veteran actually has peripheral neuropathy and, if so, whether it is of the early-onset variety) are medical in nature.  In light of the Veteran's conceded exposure to Agent Orange in service and his testimony at the hearing that he has experienced numbness of extremities since service, an examination to secure a medical opinion that addresses the medical questions presented is necessary.  See McLendon, 20 Vet. App. at 83.

An October 1968 STR notes the Veteran complained of fever and chills.  At the December 2017 Board hearing, he testified he became sick when he served at the DMZ and that his nose has kept running since service.  An October 2014 VA treatment record notes he reported he experienced a recurrent but intermittent runny nose.  In light of the Veteran's complaints in service and his testimony that he has experienced a runny nose ever since, an examination to ascertain whether he has sinusitis and, if so, its etiology, is needed.  See McLendon, 20 Vet. App. at 83.

The Veteran contends that he has a skin disability, specifically porphyria cutanea tarda, which is due to exposure to Agent Orange in service.  An April 2007 VA treatment record notes a skin evaluation revealed nevi and seborrheic keratosis.  An October 2014 treatment record notes he reported intermittent leg itching.  Pruritus of the legs was diagnosed.  A September 2015 VA treatment record notes he had bluish/blackish dots on his feet and toes.  A September 2015 private treatment record notes there were cholesterol emboli and resultant gangrene on both lower extremities.  A loss of hair on the lower extremities was also noted.  In a November 2015 claim for service connection, the Veteran reported he had constant itching on his back, legs, and arms. Ecchymosis of three right toes was noted in December 2015.  A January 2016 VA treatment record notes he had an ulcer on his toe.  
In light of the Veteran's conceded exposure to Agent Orange in service and conflicting evidence regarding the nature of his skin disability, an examination to ascertain the nature and etiology of the variously diagnosed skin disability is necessary.  See McLendon, 20 Vet. App. at 83.

The case is REMANDED for the following:

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

1. The AOJ should secure for the record updated clinical records of all VA evaluations and treatment the Veteran has received for renal failure and hypertension, and the claimed porphyria cutanea tarda, peripheral neuropathy of the upper and lower extremities, and sinusitis.  If any such records are unavailable, the reason must be explained for the record, and the Veteran should be so advised.

2. The AOJ should advise the Veteran that the complete records of his private treatment for renal failure, hypertension, any skin disability, peripheral neuropathy of the upper and lower extremities, and sinusitis (including those from Dr. Asin) are pertinent evidence that is outstanding, and ask him to submit authorizations for VA to secure such records.  The AOJ should secure for the record complete clinical records from all providers identified.  If any private records sought are not received pursuant to the AOJ request, the Veteran should be so advised, and advised further that ultimately it is his responsibility to ensure that private treatment records are received.  

3. The AOJ should arrange for any further development suggested by the evidence received (e.g., a VA examination for the matter of service connection for renal failure if indicated).

4. The AOJ should then arrange for the Veteran to be examined by an appropriate physician to determine the likely etiology of his hypertension and to confirm whether or not he has sinusitis and, if so, its likely etiology.  The Veteran's record (to include this remand, his STRs, postservice treatment records, and the Internet articles submitted by the Veteran's attorney in December 2017) must be reviewed by the examiner in conjunction with the examination.  Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:

(a) What is the likely etiology for the Veteran's hypertension? Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's active duty service, to include as due to his acknowledged exposure to Agent Orange therein?

The examiner must include rationale with all opinions, to specifically include comment on the textual evidence in the record, including the STRs; postservice records, and the Internet articles submitted by the Veteran's attorney in December 2017 that suggest a link between exposure to Agent Orange and hypertension.

(b) Does the Veteran have sinusitis?  If so, what is the most likely etiology for the sinusitis?  Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active duty service?

The examiner must include rationale with all opinions, to specifically include comment on the textual evidence already in the record, including the STRs; postservice records, and the Veteran's reports of experiencing a runny nose since service.

5. The AOJ should also arrange for a neurological examination of the Veteran to ascertain the nature and likely etiology of any neurological disability of the upper and lower extremities he may have.  The Veteran's record (to include this remand, his STRs, postservice treatment records, and December 2017 testimony) must be reviewed by the examiner in conjunction with the examination.  Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:

(a) Does the Veteran have peripheral neuropathy of the upper and lower extremities; if so, is it an early-onset type peripheral neuropathy?  

(b) If the Veteran has peripheral neuropathy of an extremity but it is not an early-onset type, what is the most likely etiology for the peripheral neuropathy?  Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active duty service, to include his exposure to Agent Orange therein?

The examiner must include rationale with all opinions, to specifically include comment on the textual evidence already in the record, including the STRs, postservice records, and the Veteran's reports of experiencing extremity numbness since service.

6. The AOJ should also arrange for a dermatological examination of the Veteran to ascertain the nature and likely etiology of any current skin disability [he may have].  The Veteran's record (to include this remand, his STRs, postservice treatment records, and December 2017 hearing testimony) must be reviewed by the examiner in conjunction with the examination.  Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:

(a) Please identify (by diagnosis) each skin disability entity found, specifically indicating whether or not he has porphyria cutanea tarda

(b) If the Veteran has a skin disability that is not porphyria cutanea tarda, what is the most likely etiology for such disability?  Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active duty service, to include his exposure to Agent Orange therein?

The examiner must include rationale with all opinions, to specifically include comment on the textual evidence already in the record, including the STRs; postservice records, and the Veteran's December 2017 testimony.

7. The AOJ should then review the entire record and readjudicate the claims of service connection for renal failure, hypertension, porphyria cutanea tarda, peripheral neuropathy of the upper and lower extremities, and sinusitis.  If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board.  

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).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs