Citation Nr: 18149661 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 15-26 030 DATE: November 14, 2018 ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for an eye/vision disability, the claim is reopened, and the claim is granted to that extent only. Entitlement to service connection for melanoma is denied. REMANDED Entitlement to service connection for an eye/vision disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy (claimed as numbness) is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy (claimed as numbness) is remanded. Entitlement to service connection for a thyroid disability is remanded. Entitlement to service connection for a disability manifested by seizures is remanded. Entitlement to service connection for amnesia is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder and depression, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for acid reflux is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. New and material evidence to reopen a claim of entitlement to service connection for an eye/vision disability has been received. 2. There is not competent credible evidence of record that the Veteran has a current disability of melanoma which is as likely as not causally related to active service. CONCLUSIONS OF LAW 1. Evidence received since the February 1968 RO decision that denied service connection for residuals of an eye injury, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. 1154 (a), 5108, 7105; 38 C.F.R. 3.156, 20.200. 2. The criteria for service connection for melanoma are not met. 38 U.S.C. §§ 1110, 1111. 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1966 to November 1967. These matters come before the Board of Veterans’ Appeals (Board) from July 2013, January 2014, June 2015, and April 2017 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. New and Material Evidence / Service Connection Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disability In a final decision in 1968, the RO denied a claim for service connection for an eye disability. At that time, the Veteran asserted that he had an eye disability caused by lead paint in March 1967, and submitted a statement by his father detailing that that the Veteran had had “lead paint splashed in his eyes.” The Veteran’s STRs are negative for an eye complaint. A post-service December 1967 VA examination report reflects that the Veteran’s conjunctivae were slightly red, but he had no double vision and no blurred vision. With regard to his claim to reopen the previously denied claim, the Veteran’s son submitted an August 2012 VA Form 21-4138 in which he stated that the Veteran has impaired peripheral vision. In a November 2012 VA Form 21-4138, the Veteran asserted that his “vision problems started soon after” he returned home from the Navy and he started to lose his peripheral vision. A March 1988 Bay Pacific Health Plan referral/consultation form reflects that the Veteran had “tunnel vision”, along with other complaints and was to be seen to rule out multiple sclerosis. A January 2013 private record reflects a history of early macular degeneration. The Board finds, given the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence has been received (i.e. evidence of tunnel vision and/or loss of peripheral vision); therefore, the claim is reopened. Entitlement to service connection for melanoma, to include as secondary to herbicide agent exposure In 2017, the Veteran contended that he has melanoma, to include as due to herbicide agent exposure. The Veteran’s service treatment records (STRs) are negative for melanoma and note clear skin. The Veteran contends that his treating physician, Dr. N. Kannath believes that his melanoma is a “direct result of agent orange exposure”; however, the Veteran has not provided competent credible evidence that he has had melanoma at any time since the claim was filed in February 2017. The Veteran included a copy of a medical record which he indicated supported treatment for “recurring Melanoma[];” however, that record only noted melanoma by history. It noted a past history of melanoma on the left cheek in 1994. The current assessment was actinic keratosis and seborrheic dermatitis for “scalp problems and precancers.” The report states that the Veteran has a grey macule on the right medial check which was probably early blue nevus which would be benign. The report reflects that in rare cases, it could be malignant, and that sometimes blue nevi can be confused with melanoma. Although a biopsy was recommended to confirm that it was blue nevus, the Veteran refused a biopsy. An August 2016 record by Dr. Kannath reflects “no recurrence” of melanoma and that the earlier finding of a blue nevus had “resolved.” The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of melanoma, does not have a current finding that it is as likely as not that he has a diagnosis of melanoma (rather, it is less likely as not melanoma), there is not competent credible evidence of record that even if the Veteran has melanoma it is as likely as not due to herbicide exposure in service, there is not competent credible evidence that he was exposed to an herbicide agent in service, and there is not evidence of current residuals of melanoma. In essence, while the Veteran may have had melanoma in 1994, there is not competent credible evidence of record that he has a current disability which is causally related to service, to include on a presumptive basis. Although the Veteran contends that his treating provider has found that he has melanoma due to herbicide agent exposure, the clinical records do not include a nexus statement to that effect and do not even support a current diagnosis of melanoma. Moreover, the “connection between what a physician said and the layman’s account of what he purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette v. Brown, 8 Vet. App. 69, 77 (1995). While the Veteran may believe that he has a current diagnosis of melanoma related to service, he is not competent to provide a diagnosis and/or nexus opinion in this case as such a diagnosis requires medical expertise and diagnostic testing (i.e., biopsy). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Veteran contends that he has been treated at the Fort Harrison VAMC (VA Medical Center) and the Sacramento VAMC from 1967 to present for his prostate, PTSD, vision, neuropathy, thyroid, migraines, and seizures (see May 2013 VA Report of General Information VA Form 21-0820). A subsequent 2013 VA Form 27-0820 reflects that the Veteran waived his right to have VA obtain those records. However, any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal and for which he has stated he has sought VA treatment. A remand is required to allow VA to obtain them. The Veteran contends that he was exposed to Agent Orange in service while in Puerto Rico. The Veteran’s military personnel records reflect that he served at the U.S. Navy facility on Roosevelt Roads in Puerto Rico in 1967. VA acknowledges that an herbicide agent was used and/or stored in Puerto Rico at various times and places but there is not competent credible evidence that it was used/stored when and where the Veteran served. The Board acknowledges the except from anonymous sources that herbicide agents were used at the Roosevelt Roads Naval Base in 1976, and that it was “sprayed freely” between 1966 and 1971; however, the Board finds that VA’s official recognition of places and times is more probative than the contentions of an anonymous source, or a non-government source. Nevertheless, for some of the Veteran’s claimed disabilities, while service connection may not be warranted on a presumptive basis for herbicide agent exposure, service connection may be warranted on a presumptive basis based on whether they manifested to a compensable degree within one year of separation from service. As noted above, the Veteran contends that there are outstanding VA records during this period to support his claims. Entitlement to an acquired psychiatric disability to include PTSD and depression, a disability manifested by seizures, and amnesia are remanded. With regard to his mental health, the Veteran contends that while in service, he was working in a print shop when he was given orange juice laced with isopropyl alcohol throughout the day, tied up, raped (to include injuries of a ruptured rectum, eye trauma, and bruises to the face), was found by the military police on a lawn, awoke in the hospital, and was threatened into silence by the military due to the rank and connections of the alleged perpetrator (whom he initially described as a petty officer second class (E-5) and later described as a petty officer first class (E-6). The Veteran contends that he did not remember the sexual assault until sometime after a 2013 VA examination when he had thought that the etiology of his depression was his medical problems. The Veteran’s STRs indicate an incident in November 1966 when the Veteran was on liberty when he drank approximately one-half pint of isopropyl, was “gavaged” at the Emergency Room of the Great Lakes Naval Hospital, and was then admitted to the hospital. Upon examination, he had some slurring of speech and unsteadiness of gait but the remainder of the physical examination was entirely within normal limits. The record is negative for the Veteran having been on duty when he drank the alcohol, bruises to the face and eye, injury to the rectum, or having marks on his wrist from being tied up. The Veteran was admitted to the hospital on November 15, 1966 and discharged on November 18, 1966. The Board finds that further development may be useful to the Board. The Board is mindful that the claims file includes a positive private nexus opinion; however, the opinion is based on the Veteran’s report of sexual assault in service. The Veteran’s report of this in-service incident is inconsistent with the contemporaneous medical evidence of record, as it stands currently. The 2015 VA examiner noted that a review of the Veteran’s STRs did not reflect injuries consistent with what the Veteran reported. The Veteran contends that he was found by military policemen; if so, there should be a military police record, to include a blotter report for the incident which lists the Veteran as a subject or victim. There may also be emergency room and/or in-patient records from the Great Lakes Naval Hospital in addition to the one record associated with the claims file from November 18, 1966. An April 2015 VA examination report reflects that the examiner found no evidence to support the assertion of military sexual trauma (MST) in service, the clinical evidence in service was inconsistent with the Veteran’s account, and the Veteran did not meet the diagnosis for PTSD. The examiner also noted that a full neuropsychological battery of tests, included MMPI, MMPII, and MPIII, would “help sort some” of the Veteran’s confusion over facts, and given his history of transglobal amnesia, seizures, and migraines. As this testing was recommended by the examiner, the Board finds that it may be useful. Based on the Veteran’s contention as to MST, the Board finds that he should be advised of what evidence from sources other than his service records may support his stressor of a personal assault. 38 C.F.R. § 3.304 (f)(5). The Board also notes that the Veteran has contended that he was involved in a fight in 1967 in service which resulted in psychiatric hospitalization, a head injury, and which took five individuals to get him off the other guy; however, the STRs clearly reflect that the Veteran was hospitalized for psychiatric reasons after he climbed onto a rafter, became frightened and was unable to get down, that it took four individuals to coax him down and/or disengage him from the rafter, he was hyperventilating, and upon arrival at the hospital was disoriented to all spheres and holding his breath to the point of cyanosis; the records are entirely negative for head trauma; thus, no further development is needed for this contention. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he has had tinnitus since service. The Veteran’s STRs are negative for complaints of tinnitus. A December 1967 VA examination report, the month after separation from service, specifically notes that the was “no ringing, buzzing, or aching” of the ears. A December 2013 VA examination report reflects that it is less likely than not that the Veteran has tinnitus due to service because the Veteran denied tinnitus in December 1967. The Veteran’s attorney has submitted an article on tinnitus and contends that tinnitus has a delayed onset and is secondary to the Veteran’s hearing loss. The Board finds that a supplemental opinion may be useful to the Board in adjudicating the Veteran’s claim.   Entitlement to service connection for diabetes mellitus, and for bilateral upper and lower extremity peripheral neuropathies are remanded. The record reflects that the Veteran has a family history of diabetes mellitus (his mother), that he was diagnosed in approximately 1990 or 1991, and that he is not entitled to presumptive service connection under 38 C.F.R. § 3.309(e). Clinical records reflect that the Veteran has diabetic neuropathy. The Veteran’s wife has stated that in the early 1970s, the Veteran complained of tingling of the arms and legs; she has also indicated that he has multiple sclerosis. The Veteran has asserted treatment for his neuropathy at VA facilities, as noted above, and those records should be associated with the claims file prior to Board adjudication. Entitlement to service connection for a thyroid disability is remanded. Clinical records reflect that the Veteran has been prescribed Levothyroxine, which the Board finds may be used to treat thyroid problems, and that he has been diagnosed with hypothyroidism (e.g. see 2010 private records (Dr. M. Bricker). The Veteran contends that he has had a thyroid problem since his release from service, that he started medication in 1970, and that continues to this date to take daily medication (see November 2012 VA 21-4138 ). He has indicated that his thyroid disability is due to herbicide agent exposure (see August 2012 VA Form 21-4138). Based on the Veteran’s contention as to onset and treatment, the Board finds that VA clinical records may be useful in adjudicating the Veteran’s claim. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is secondary to PTSD and/or medications taken for a service-connected disability. Because a decision on the other issues remanded herein could significantly impact a decision on the issue of entitlement to service connection for sleep apnea, the issues are inextricably intertwined. A remand is required. Records in the 1980s reflect that the Veteran did not have any difficulties with sleeping, but had difficulty staying awake. The Veteran contends that he was diagnosed with sleep apnea in 2003. VA has previously requested this information from the Veteran and his treatment provider, but has not received it. As the claim is being remanded, the Veteran should be afforded another opportunity to submit evidence of a diagnosis of sleep apnea (i.e. sleep study records). All other claimed disabilities are remanded. The Veteran’s claimed disabilities require remand because they are inextricably intertwined with remanded issues or because there may be pertinent VA clinical records which need to be associated with the claims file. The matters are REMANDED for the following action: 1. Advise the Veteran, in accordance with 38 C.F.R. § 3.304 (f)(5), of what evidence from sources other than his service records may support his stressor of a personal assault. 2. Request the Veteran to submit a copy of his 2003 sleep study. 3. Obtain the Veteran’s VA treatment records for the period from November 1967 to present from the Fort Harrison VAMC and Sacramento VAMC. 4. Contact the National Personnel Records Center or the appropriate repository and attempt to obtain in-patient treatment records for the Veteran at the Great Lakes Naval Station Hospital and emergency room from November 15, 1966 to November 18, 1966. 5. Contact the appropriate repository for military law enforcement records and attempt to obtain all military police records, to include blotter reports, which list the Veteran as a subject or victim between November 14, 1966 and November 19, 1966 at the Great Lakes Naval Station. 6. Schedule the Veteran for a full neuropsychological battery of tests to include the MMPI, MMPII, and the MPIII as recommended by the April 2015 VA examiner. Thereafter, obtain a supplemental opinion from the April 2015 examiner (or another qualified clinician) as to whether it is at least as likely as not that the Veteran has a psychiatric disorder due to service. 7. Obtain a supplemental opinion to the December 2013 VA examination as to whether it is as likely as not that the Veteran’s tinnitus is causally related to, or aggravated by, his hearing loss. The clinician should consider the medical literature with regard to tinnitus and delayed onset after noise exposure. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard