Citation Nr: 18149798 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-23 025A DATE: November 13, 2018 ORDER Entitlement to service connection for skin cancer, to include as due to herbicide agent exposure, is denied. Entitlement to an initial 40 percent rating, but not higher, prior to July 22, 2015, for peripheral neuropathy of the left lower extremity is granted. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial 40 percent rating, but not higher, prior to July 22, 2015, for peripheral neuropathy of the right lower extremity is granted. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity is denied. FINDINGS OF FACT 1. Although the Veteran served in the Republic of Vietnam between 1966 and 1968, and thus is presumed to have been exposed to herbicide agents during service, skin cancer is not among the disabilities recognized by the VA as etiologically related to herbicide exposure. 2. The Veteran has a history of basal cell carcinoma and squamous cell carcinoma, however, competent, probative medical evidence indicates that the Veteran does not have, and at no point pertinent to this appeal, has had skin cancer or any residuals of skin cancer. 3. For the entire appeal period, the Veteran’s peripheral neuropathy of the left and right lower extremities has been manifested by an overall disability picture that more nearly approximates that of no more than moderately severe incomplete paralysis. 4. At no pertinent point during the appeal period, was the Veteran’s bilateral peripheral neuropathy of the lower extremities described as including marked muscular atrophy or as complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for an initial rating of 40 percent for peripheral neuropathy of the left lower extremity, prior to July 21, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, DC 8521, 4.12a DC 8620. 3. The criteria for a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, DC 8620. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for an initial rating of 40 percent for peripheral neuropathy of the right lower extremity, prior to July 21, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, DC 8521, 4.12a DC 8620. 5. The criteria for a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, DC 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1962 to August 1962 and from March 1964 to September 1983. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for peripheral neuropathy of both lower extremities and assigned ratings of 10 percent bilaterally effective as of March 26, 2012. This appeal also arose from a March 2014 rating decision in which the RO denied the Veteran’s claim for service connection for skin cancer. The Veteran filed a notice of disagreement (NOD) for the bilateral lower extremity peripheral neuropathy claims in March 2013, and a NOD for the service connection claim for skin cancer in April 2014. The RO issued a statement of the case (SOC) discussing all three claims in May 2015. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in July 2015. A supplemental statement of the case (SSOC) was issued in October 2016. The Board notes that additional evidence was received after the SSOC was issued, including updated VA treatment records, an additional VA examination record, military personnel records and service treatment records (STRs), but as those records were not relevant to the claim on appeal, it is not necessary for those to be reviewed by the agency of original jurisdiction (AOJ). Regarding the claims on appeal, the Board notes that the Veteran marked the box on the July 2015 Form 9 indicating that he wished to appeal all issues listed on the SOC (which also included claims of service connection for multiple myeloma, hypertension, and erectile dysfunction in addition to the claims addressed in this decision; but, then he only listed “skin cancer” and “severe neuropathy of the left and right lower extremity” in the narrative section of the VA Form 9). In June 2016 correspondence, the RO requested clarification from the Veteran as to whether he intended to appeal the issues of service connection for multiple myeloma, hypertension, and erectile dysfunction. The Veteran never responded to that request, and the RO subsequently deemed those issues as being withdrawn. A supplemental statement of the case issued in October 2016 reflects that the claims of service connection for multiple myeloma, hypertension, and erectile dysfunction were no longer in appellate status. Then, in September 2018 correspondence, the Board also requested clarification from the appellant as to whether he intended to appeal all of the issues listed in the May 2015 SOC. The Veteran did not respond to that request. Accordingly, the Board finds that the only issues currently on appeal to the Board are those addressed in this decision Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 U.S.C. § 20.900(c). 1. Entitlement to service connection for skin cancer, including as due to herbicide exposure, is denied. At the outset, the Board notes that the Veteran’s original claim for entitlement to service connection for skin cancer referred to the Veteran’s claim as both for multiple myeloma and skin cancer. Review of the record, including the medical evidence and the Veteran’s lay statements, reveals that the Veteran’s claim is for skin cancer. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. §§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 - 57589 (1996). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides (to include Agent Orange) may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155 (1997); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The determination as to whether elements of a service connection claim are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Veteran contends that his skin cancer was the result of exposure to Agent Orange while serving in the Republic of Vietnam. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for skin cancer is not warranted under any theory of entitlement. While the Veteran had service in the Republic of Vietnam during the Vietnam era, and is, thus presumed to have been exposed to herbicides, to include Agent Orange, the evidence does not support a finding of presumptive service connection based on such presumed exposure. Skin cancer is not a disease that the VA Secretary has recognized as etiologically-related to herbicide exposure, as it is not on the list of diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Hence, presumptive service connection based on presumed in-service exposure to herbicides, including Agent Orange, is not available to the Veteran. As stated above, service connection for a disability claimed as due to herbicide exposure may also be established by showing a causal link between the disorder and the exposure. As noted, a claim for service connection requires a finding of current disability. See Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran submitted a claim for entitlement to service connection for skin cancer in 2013. A review of the Veteran’s treatment records as well as his VA examination reports show that the Veteran was diagnosed with Basal Cell Carcinoma in 1998 and Squamous Cell Carcinoma in 2002 but received treatment through excision for both conditions which were resolved prior to the Veteran’s 2013 claim. The Veteran’s VA examination from December 2014 reports that the Veteran has had no further carcinomas since that time. Further, the examiner reported that the Veteran had no residual conditions or complications. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110; see also 38 C.F.R. §§ 3.303, 3.310. To the extent that the Veteran has attempted to establish a current diagnosis, the Veteran is not competent to diagnose skin cancer. Thus, where, as here, medical evidence does not support a finding that, fundamentally, the Veteran has had-at any point pertinent to this appeal-the disability for which service connection is sought, there can be no valid claim for service connection. In this case, the Veteran’s skin cancer resolved long before he filed a claim of service connection for that disability; and, the medical evidence of record does not show that the Veteran has had skin cancer at any time during the period covered by this claim, or at any time since he filed for service connection. For all the foregoing reasons, the claim for service connection for skin cancer, including as due to herbicide exposure, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a required element for the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Increased Rating 2. Entitlement to initial ratings in excess of 10 percent prior to July 22, 2015, and ratings in excess of 40 percent from that date, for peripheral neuropathy in the left lower extremity and the right lower extremity. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999). As the AOJ has already assigned staged ratings for the Veteran’s bilateral peripheral neuropathy claims, the Board will consider the propriety of the rating at each stage, as well as whether any further staged rating is warranted. In this case, the Veteran generally contends that higher initial and subsequently staged ratings are warranted for his peripheral neuropathy of the lower left and right extremities. The Veteran’s lower extremity neuropathy has been rated separately for each lower extremity initially under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8521 and subsequently, effective July 22, 2015, under 38 C.F.R. § 4.124a, DC 8620. Under DC 8521, which deals with the external popliteal nerve, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis. 38 C.F.R. § 4.124a, DC 8521. Under DC 8620, labelled as neuritis and dealing with the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. 38 C.F.R. § 4.124a, DC 8620. In January 2013, the Veteran underwent a VA examination which reported mild bilateral lower extremity peripheral neuropathy. During this examination, the Veteran reported a two-year history of numbness, tingling and pain to both lower extremities. The Veteran described the numbness from the ankles down and tingling of the feet. The Veteran also described a burning type pain on the bottom of both feet, worse at night. The examination report includes symptoms of mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness, all present in both lower extremities. Results from light touch/monofilament testing for the Veteran’s feet and toes were reported as absent sensation. The Veteran’s vibration sensation was noted to be decreased in both lower extremities. The examiner stated that the Veteran did not have muscle atrophy or trophic changes. The examiner noted mild incomplete paralysis of the sciatic nerve in both the right and left lower extremity. In a February 2013 rating decision, the Veteran was awarded a 10 percent disability rating for mild incomplete paralysis of each of his bilateral lower extremity peripheral neuropathies under DC 8521, effective March 26, 2012. The Veteran stated in his NOD of March 2013 that his disability rating was inaccurate because he had moderate nerve damage. To support his contention, he submitted a private doctor’s opinion from March 2013 stating that the Veteran had severe bilateral lower extremity neuropathy. The private opinion stated that the Veteran’s peripheral neuropathy affected his ability to ambulate and to sleep. The private physician prescribed the Veteran Lyrica three times per day. Additionally, in an April 2013 statement, the Veteran described his neuropathy as severe. The following year, in December 2014, the Veteran was scheduled for a VA examination to further assess the severity of his lower extremity peripheral neuropathy. During this examination, the Veteran reported symptoms of numbness up to just above his ankles during the day and burning pain, primarily at night, along the bottom of his feet. The examination report includes symptoms of mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness, all present in both lower extremities. The Veteran’s deep tendon reflexes were noted to be decreased in both knees and ankles. Light touch/monofilament testing revealed that the Veteran had decreased sensation in both ankles and feet. The Veteran’s position sense and cold sensation in his left lower extremity were noted to be decreased. His vibration sensation was noted to be decreased in both lower extremities. The examiner stated that the Veteran did not have muscle atrophy or trophic changes. The examiner noted mild incomplete paralysis of the sciatic nerve in both the right and left lower extremity. In July 2015, the Veteran had an examination at the Keesler Medical Center Neurology Clinic where he reported to the physician that the numbness and tingling in his lower extremities had increased over the prior 6 months. Subsequently, the Veteran underwent a VA examination in August 2016 wherein the examining physician noted that the Veteran’s peripheral neuropathy in both lower extremities had progressed to moderately severe. The examiner reported symptoms of severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness, all present in both lower extremities. The Veteran’s deep tendon reflexes were noted to be absent in both knees and ankles. Light touch/monofilament testing revealed that the Veteran had decreased sensation in both knee/thighs and that sensation was absent in both ankles and feet. The Veteran’s position sense, vibration sensation, and cold sensation were all recorded as absent in both lower extremities. The examiner stated that the Veteran had trophic changes including hair loss and smooth, shiny skin. The examiner recorded that the Veteran did not have muscle atrophy. The examiner reported mild incomplete paralysis of the sciatic nerve in both the right and left lower extremity and noted that the Veteran’s symptoms had progressed to include increased pain and numbness to the bilateral lower extremities. In an October 2016 rating decision, the Veteran’s disability rating for both lower extremities was increased to 40 percent, effective from July 22, 2105. Notably, the diagnostic code under which the peripheral neuropathy was rated was changed from DC 8521 to DC 8620. Considering all the foregoing, including the medical evidence and the lay statements of record, the Board finds that, with resolution of all reasonable doubt in the Veteran’s favor, the DC 8620 is the appropriate diagnostic code with a 40 percent rating warranted for the entire appeal period. The Board notes that the selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case," and the Board therefore has discretion in determining the appropriate diagnostic code. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate diagnostic code). To this end, the Board observes that DC 8521 refers to paralysis of the external popliteal nerve while the DC 8620 refers to neuritis of the sciatic nerve. The medical evidence of record reports symptoms of varying levels of incomplete paralysis of the sciatic nerve. The Board therefore concludes that DC 8620, which pertains to the sciatic nerve, is the most appropriate diagnostic code for the Veteran's service-connected bilateral lower extremity peripheral neuropathies. Under DC 8620, the Board finds that the Veteran’s symptoms, for the entire appeal period, more closely approximate the criteria for the 40 percent, or moderately severe, rating. In granting the Veteran 40 percent ratings for the period prior to July 22, 2015, the Board notes that this is the highest rating available for neuritis not characterized by organic changes. Prior to July 22, 2015, there is no evidence of trophic changes. In addition, the Board finds that the Veteran’s bilateral lower extremity peripheral neuropathy symptoms do not warrant ratings in excess of 40 percent since July 22, 2015 or at any point during the appeal period. The Board acknowledges that the August 2016 VA examination noted trophic changes, however, the medical evidence of record does not report any muscle atrophy or complete paralysis during the entire appeal period. Therefore, the criteria for higher, 60 percent ratings are not met, since severe incomplete paralysis with marked muscular atrophy is required. For the foregoing reasons, the assignment of a 40 percent rating for the right lower extremity, and a 40 percent rating for the left lower extremity peripheral neuropathy is warranted prior to July 22, 2015; however, a rating in excess of 40 percent is not warranted for either lower extremity at any time during the period covered by this claim. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel