Citation Nr: 18152267 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-31 184 DATE: November 21, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a skin condition, to include tinea pedis, cruris intertrigo, and psoriasis, is granted. The petition to reopen a claim of entitlement to service connection for left lower extremity (LLE) peripheral neuropathy, to include as secondary to a service-connected disability, is granted. The petition to reopen a claim of entitlement to service connection for right lower extremity (RLE) peripheral neuropathy, to include as secondary to a service-connected disability, is granted. The petition to reopen a claim of entitlement to service connection for left upper extremity (LUE) peripheral neuropathy, to include as secondary to a service-connected disability, is granted. Entitlement to service connection for skin condition, to include tinea pedis, cruris intertrigo, and psoriasis, is denied. Entitlement to service connection for LLE peripheral neuropathy, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for RLE peripheral neuropathy, to include as secondary to a service-connected disability, is denied Entitlement to service connection for LUE peripheral neuropathy, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for depressive disorder with anxiety, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. A September 2010 rating decision, which declined to reopen the claim of entitlement to service connection for tinea pedis and cruris intertrigo (claimed as skin rash), is final. The Veteran did not submit a notice of disagreement (NOD) or submit additional evidence within one year of the issuance of this decision and it became final. 2. Subsequent to the September 2010 rating decision, evidence was received that is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for skin condition, to include tinea pedis, cruris intertrigo, and psoriasis. 3. A September 2011 rating decision, which denied entitlement to service connection for LLE peripheral neuropathy, RLE peripheral neuropathy, and LUE peripheral neuropathy based on a finding the condition neither occurred in or was caused by service, is final. 4. Subsequent to the September 2011 rating decision, evidence was received that is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for LLE peripheral neuropathy, RLE peripheral neuropathy, and LUE peripheral neuropathy. 5. The preponderance of evidence is against a finding that the Veteran’s skin condition, to include tinea pedis, cruris intertrigo, and psoriasis, manifested in service or is etiologically related thereto. 6. The preponderance of the evidence is against a finding that the Veteran has diagnoses of peripheral neuropathy of the bilateral lower extremities or bilateral upper extremities. 7. The preponderance of the evidence is against a finding that the Veteran’s depressive disorder manifested in service, is etiologically related to service, or is proximately due to or aggravated by his service-connected diabetes mellitus or erectile dysfunction. CONCLUSIONS OF LAW 1. The September 2010 rating decision that declined to reopen the claim of entitlement to service connection for a skin condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 2. Evidence received since the final September 2010 rating decision is new and material; the Veteran’s claim of entitlement to service connection for a skin condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The September 2011 rating decision that denied entitlement to service connection for LLE peripheral neuropathy, RLE peripheral neuropathy, and LUE peripheral neuropathy, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 4. Evidence received since the September 2011 rating decision is new and material, and the Veteran’s claims of entitlement to service connection for LLE peripheral neuropathy, RLE peripheral neuropathy, and LUE peripheral neuropathy are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for service connection for a skin condition are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 6. The criteria for service connection for LLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 7. The criteria for service connection for RLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 8. The criteria for service connection for LUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 9. The criteria for service connection for RUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 10. The criteria for service connection for depressive disorder with anxiety are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from August 1964 to August 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes the question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. The Board has characterized the claims accordingly. A March 2015 rating decision reopened and denied the Veteran’s claim for depression and declined to reopen the Veteran’s claim for skin condition. The Board finds the previous July 2013 rating decision addressing these issues was not final because VA received a timely notice of disagreement (NOD) within the appeal period. See August 2013 NOD. Therefore, the Board will review the claim for service connection for depression de novo and not as a petition to reopen. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. New and Material Evidence Generally, a claim which has been denied in a final unappealed RO decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 1. Whether new and material evidence has been received to reopen the claim for service connection for a skin condition The Veteran’s claim of entitlement to service connection for a skin condition was denied initially by a December 1997 rating decision based on a finding that the Veteran’s current skin condition was not related to service. VA did not receive an appeal or receive new and material evidence within one year of that decision; the December 1997 rating decision is final. A September 2010 rating decision continued the denial of service connection for a skin condition based lack of new and material evidence. The Veteran was informed by a September 29, 2010 notification letter. VA did not receive an appeal of the decision or receive new and material evidence within one year of the rating decision notification letter; therefore, the September 2010 rating decision is final. At the time of the September 2010 rating decision, the record consisted of a March 1997 VA examination, service treatment records, and Veteran lay statements. Subsequent to the September 2010 rating decision, VA obtained a January 2015 VA examination and an October 2016 private medical opinion was submitted to VA. This evidence qualifies as new evidence because it was not of the record at the time of the September 2010 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim, specifically whether a nexus exists between the Veteran’s current skin condition and service. This new evidence raises a reasonable possibility of substantiating the Veteran’s service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for skin condition. 2. Whether new and material evidence has been received to reopen the claims of entitlement to service connection for LLE, RLE, and LUE peripheral neuropathy A September 2011 rating decision denied the Veteran’s claims of entitlement to service connection for LLE, RLE, and LUE peripheral neuropathy, based on a finding the condition neither occurred in or was caused by service. The Veteran was informed by a September 26, 2011 notification letter. VA did not receive an appeal of the decision or receive new and material evidence within one year of the rating decision notification letter; therefore, the September 2011 rating decision became final. At the time of the September 2011 rating decision, the record consisted of service treatment records, VA treatment records, a June 2011 peripheral nerves VA examination, and Veteran lay statements. Subsequent to the September 2011 rating decision, VA received additional VA records and an October 2016 private medical opinion. This evidence qualifies as new evidence because it was not of the record at the time of the September 2011 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for peripheral neuropathy. This new evidence raises a reasonable possibility of substantiating the Veteran’s service connection claims. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen claims for entitlement to service connection for LLE, RLE, and LUE peripheral neuropathy. Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA has conceded the Veteran is presumed exposed to herbicide agents due to his service in Vietnam. See September 2010 rating decision. If a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption does not include psoriasis or depression, nor is there evidence of early-onset peripheral neuropathy becoming manifest to a degree of 10 percent or more within a year of separation from service. Consequently, the herbicide agent exposure presumptive provisions of 38 U.S.C. § 1116 do not apply in this claim. Notwithstanding the provisions relating to presumptive service connection, a veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 3. Service connection for a skin condition, to include tinea pedis, cruris intertrigo, and psoriasis. The Veteran contends his current skin condition manifested service or is related to service. The Board recognizes the Veteran meets the first two elements of service connection, he has been diagnosed with psoriasis during the appeal period and there is evidence of skin rash in service. Therefore, the issue is whether the preponderance of the evidence supports a causal relationship between the Veteran’s psoriasis and his in-service rash. The Board finds the preponderance of the evidence supports a finding that the Veteran’s psoriasis did not manifest in service and is not otherwise related thereto. Service treatment records (STRs) show a May 26, 1966 visit to sick call for heat rash all over body and between the legs, a May 30, 1966 visit for heat rash between legs and on arms, and June 1966 visits for jock rash. The August 1966 separation examination was negative for complaints or diagnosis of rash or other skin condition. Post-service, a March 1997 VA examination diagnosed post inflammatory hyperpigmentation, tinea cruris, and intertrigo. The Veteran reported skin rash since Vietnam that never resolved. Physical examination observed erythematous papules on the back, waist, and chest with brownish macules, and hyperpigmented patches in the groin with erythema in borders. Between February 2012 and March 2016, the Veteran was variously diagnosed with psoriasis, as noted in VA treatment and examination records. A January 2015 VA examination also diagnosed psoriasis. The examiner noted the Veteran was diagnosed with heat rash in service and the Veteran reported first being diagnosed with psoriasis in the 2000s. An October 2016 private medical opinion stated it is as likely as not the Veteran’s current skin condition is a lifelong persistence of the initial skin conditions caused by his military service and documented in his service records. The doctor stated that he treated post-Vietnam soldiers with chronic skin conditions that resemble tinea, but have been present since Vietnam and are less responsive to usual treatments for skin fungus infections. The doctor cited to March 1997 VA examination findings of folliculitis and post-inflammatory hyperpigmentation, which he stated are chronic skin changes consistent with chemical exposures, such as Agent Orange. The Board does not find the October 2016 private medical opinion to be of substantial probative value. While the Veteran is competent to report the onset and nature of skin symptoms, he is not competent to identify a diagnosis or etiology for those symptoms, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board affords limited probative weight to the October 2016 private medical opinion. The opinion does not mention or discuss psoriasis, which has been the Veteran’s diagnosis throughout the appeal period. An in-person examination was not performed. The examiner based his rationale on the Veteran’s report of having a rash since service, but provided no discussion of the nature and location of the Veteran’s skin symptoms in service compared to during the appeal period. The examiner stated that folliculitis and post-inflammatory hyperpigmentation (observed on the 1997 VA examination) are skin changes consistent with chemical/Agent Orange exposure, but provided no supporting rationale. The Board finds the preponderance of evidence is against a finding that the Veteran’s psoriasis manifested in service or is etiologically related to service. Therefore, service connection for skin condition is not warranted. 4. Entitlement to service connection for LLE, RLE, and LUE peripheral neuropathy. The Veteran contends his bilateral lower extremity (BLE) peripheral neuropathy and bilateral upper extremity (BUE) peripheral neuropathy are secondary to his service-connected diabetes mellitus. See August 2013 NOD. The Board finds there is no probative evidence of a diagnosis of peripheral neuropathy of the BLE or BUE. STRs are silent for diagnosis of peripheral neuropathy. STRs showed March 1966 diagnosis and x-ray evidence of left elbow joint effusion and April 1966 complaint of left elbow soreness. The August 1966 separation examination noted a history of left elbow effusion in service. Post-service treatment records are silent for diagnosis of peripheral neuropathy. In September 2010, the Veteran fell from a ladder and sustained a left ulnar shaft fracture. Subsequently, he underwent an open reduction and internal fixation (ORIF) of his left ulnar shaft. At a June 2011 VA examination, the Veteran reported numbness and tingling in his left hand since the 1970s. He denied tingling in his lower legs, but recalled tingling in his toes in the early 1970s. The examiner stated there was no objective evidence of BLE peripheral neuropathy. She stated there were subjective complaints, but no objective evidence, of LUE peripheral neuropathy. The examiner opined it is less likely as not the claimed left hand neuropathy is the same as or a result of an event in service. The examiner noted the Veteran sustained a left ulnar shaft fracture in October 2010 and underwent ORIF of the left ulna. She stated it is possible that he has neuropathy of the left fingers, although clinical findings are normal. The examiner opined it is less likely as not the claimed neuropathy of the lower legs is the same as or the result of an event in service. She stated there was no evidence of neuropathy in service or post-service treatment records. The examiner stated the Veteran was diagnosed with diabetes in 2000, but reports neuropathy since the 1970s. An October 2016 private medical opinion stated it is as likely as not that any generalized peripheral neuropathy the Veteran suffers in any extremity is caused by his service-connected diabetes mellitus. In addition, the doctor pointed to the notations in the Veteran’s military medical records of a left elbow injury consistent with recurrent effusion. He stated the Veteran reported numbness and tingling in his arm since 1970s, which would be consistent with a gradually developing entrapment neuropathy from his LUE injury documented in service. The doctor stated assuming the Veteran’s recollection of the onset of LUE neuropathy symptoms to be accurate, it is as likely as not that his LUE neuropathy is due to the LUE injury noted in his military service records. The Board finds there is no probative evidence supporting a diagnosis of peripheral neuropathy of any extremity. While the Veteran is competent to report symptoms of tingling and numbness, he is not competent to identify a diagnosis or etiology for those symptoms, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board gives little probative weight to the October 2016 private medical opinion. The doctor stated that any peripheral neuropathy experienced by the Veteran is as likely as not related to diabetes mellitus, but did not give a specific diagnosis of peripheral neuropathy or cite to any diagnoses of peripheral neuropathy in the record. The opinion is not credible because it was conclusory statement without sufficient rationale. The Board finds the June 2011 VA examination and opinion more probative. The opinion is credible because it was made after an in-person examination. At the examination, the Veteran only had subjective complaints regarding his left upper extremity. The examiner opined that after the 2010 fall and ORIF procedure, it was possible that the Veteran had neuropathy of his left fingers, but clinical findings on examination were normal. The Board finds this opinion credible because it is consistent with the Veteran’s post-service treatment records and the June 2011 physical examination findings. The preponderance of the evidence does not show a diagnosis of peripheral neuropathy of any extremity. The preponderance of the evidence does not support a finding that any subjective left upper extremity numbness is related to service. Accordingly, service connection for peripheral neuropathy is not warranted. 5. Entitlement to service connection for depressive disorder with anxiety. The Veteran contends his depressive disorder with anxiety is due to his service-connected diabetes mellitus. See September 2012 statement. The Veteran was diagnosed with depressive disorder with anxiety during the appeal period. See September 2012 VA treatment record, May 2014 VA treatment record, and January 2015 VA examination. The Veteran is service-connected for diabetes mellitus. Therefore, the issue is whether the Veteran’s depressive disorder is proximately caused by or aggravated by a service-connected disability. The Board finds the preponderance of the evidence is against a finding that the Veteran’s depression manifested in service, is etiologically related to service, or is caused or aggravated by his service-connected diabetes or erectile dysfunction. STRs are silent for complaint, diagnosis, or treatment of depression or other mental disorder. Post-service, a July 2010 VA treatment visit reported depression due to loss of his job, chronic pain, and the inability to sleep. A December 2010 VA psychiatry visit noted complaints related to financial problems after losing his job with the school system and pain after falling and breaking his ribs. A July 2013 VA mental health note reported concerns with finances, extensive health issues, and intermittent sleep issues. A December 2013 VA treatment record reported depression related to financial problems, an accident three years prior that fractured thirteen of his ribs, and a subsequent stroke with residuals. A January 2015 VA examination diagnosed depressive disorder with anxious distress. The Veteran attributed his mood to financial strain, losing his job in 1998 with subsequent loss of care and house, diagnosis of diabetes, and change in functioning due to neuropathy. The examiner opined the Veteran’s depression is less likely than not proximately due to or the result of his service-connected diabetes mellitus. As rationale, the examiner pointed to VA treatment visits where the Veteran reported depression related to financial problems, losing his job, a 2010 fall, and a 2011 stroke. The examiner stated that while the Veteran’s depression may be impacted by his diabetes, it has not been the focus of clinical attention, therefore to indicate what degree his diabetes impacts his depression would be resorting to speculation. An October 2016 private medical opinion noted that the claims file did not contain a diagnosis of depression. Despite this, the doctor stated that based on the well-documented connection between diabetes and depression, and erectile dysfunction and depression, it was as likely as not that any depression the Veteran suffers from is caused or worsened by his service-connected diabetes and erectile dysfunction. He cited to medical literature discussing the relationship between depression and diabetes and erectile dysfunction. The Board finds there is no probative evidence supporting the Veteran’s claim that his depression is caused or aggravated by a service-connected disability. The Board affords little probative weight to the October 2016 private medical opinion. The opinion is not credible because the doctor stated he reviewed the claims file, but found no diagnosis of depression. This is inconsistent with VA treatment visits diagnosing depression since 2010 and a January 2015 VA examination diagnosing depressive disorder with anxious distress. Although the doctor cites to medical research, he fails to explain how this research applies to the Veteran’s individual circumstances. The Board finds the February 2015 VA examination opinion more probative. The examiner is a psychologist and performed an in-person examination. The examiner cited to specific lay statements in the treatment records attributing his depression to his financial situation, loss of job, a fall, and a stroke. The Board finds the lay statements made by the Veteran during his mental health treatment credible because they were made in connection with his obtaining medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Although the Veteran claimed depression secondary to service-connected disabilities, the Board considered whether direct service connection was warranted. The Board did not find probative evidence to support the Veteran’s depression manifested in service or is etiologically related to service. As noted above, the Veteran’s VA mental health treatment notes support the Veteran’s depression is due to circumstances not related to service or service-connected disabilities. The preponderance of the evidence is against a finding that the Veteran’s depression manifested in service, is etiologically related to service, or is caused or aggravated by his service-connected diabetes or erectile dysfunction. Therefore, service connection for depressive disorder with anxiety is not warranted. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel