Citation Nr: 18155224 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-06 043 DATE: December 3, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a stomach disability, to include ulcers, has been received, the application to reopen is granted Entitlement to service connection for a stomach disability is granted. Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide exposure, is granted. Entitlement to a compensable rating for a left elbow scar is denied. Entitlement to an initial rating in excess of 10 percent for diabetes mellitus, type II, (DM) is denied. REMANDED Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE) is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE) is remanded. Entitlement to a rating in excess of 30 percent for anxiety disorder NOS is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the RO declined to reopen a previously denied claim for service connection for peptic ulcer and stomach pain on the basis that there was no new and material evidence showing a current disability that was related to the Veteran’s military service; the Veteran did not submit new evidence or a notice of disagreement (NOD) within a year of this decision. 2. Evidence submitted subsequent to the January 2010 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a stomach disability. 3. Resolving reasonable doubt in the Veteran’s favor, his current dyspepsia is related to his in-service stomach complaints. 4. The Veteran served in the Republic of Vietnam. 5. The competent evidence establishes a current diagnosis of IHD. 6. For the entire period on appeal, the Veteran’s left elbow scar has not been painful or unstable and has not caused disfigurement. 7. For the entire period on appeal, the Veteran’s DM has required restricted diet, but not insulin, oral hypoglycemic agents, or regulation of activities. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for peptic ulcer and stomach pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a stomach disability has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a stomach disability, to include dyspepsia, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for IHD are met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for a compensable rating for a left elbow scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 6. The criteria for an initial rating in excess of 10 percent for DM have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1969 to November 1973. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a stomach disability, to include ulcers The Veteran’s claim for service connection for peptic ulcer and pathology for stomach pains was originally denied in a February 1974 rating decision. The RO determined there was no evidence showing that the Veteran had current diagnosis of peptic ulcers or to account for his stomach pains. The Veteran did not submit an NOD or new evidence within one year of this decision. The Veteran sought to reopen his stomach claim in August 2009. A January 2010 rating decision declined to reopen the previously denied claim. The RO determined that no new and material evidence had been submitted to show a current stomach disability that was attributable to service. The Veteran did not submit an NOD or new evidence within one year of this decision. The January 2010 rating decision became final and is the last prior denial of this claim. Since the January 2010 final decision, the Board finds that the Veteran has submitted new and material evidence for the stomach claim. Specifically, he submitted an October 2011 letter from his VA physician diagnosing him with dyspepsia and linking it to his military service. As this new evidence tends to show a current diagnosis and a possible nexus between the Veteran’s current stomach diagnosis and his military service, the Board will reopen this claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 2. Entitlement to service connection for a stomach disability The Veteran contends that his stomach disability was caused by his military service. Specifically, he argues that he suffered from stomach pains and needed to take antacids in service and that this is related to his current dyspepsia diagnosis. Therefore, he believes service connection is warranted. With regard to a present disability, the Veteran has been diagnosed with dyspepsia. VA MD letter, October 2011. The first element of Shedden/Caluza is met. With regard to an in-service event, the Veteran’s service treatment records reflect treatment for stomach pain. Service treatment records, September 1973, October 1973. The second element of Shedden is also met. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed stomach disability and his in-service stomach pain. To support his claim, the Veteran submitted an October 2011 letter from his VA physician, Dr. J.W.B. VA MD letter, October 2011. Dr. J.W.B. noted that the Veteran had a current diagnosis of dyspepsia and took medication for this condition. She noted his in-service findings of hyperacidity and need for antacids and concluded that his current condition was related to his in-service stomach condition. The October 2011 positive opinion is also supported by an August 2012 VA examination and opinion that diagnosed the Veteran with dyspepsia and linked it to his military service. VA examination, August 2012. The examiner noted that the Veteran had medical treatment for dyspepsia in service and that it had continued since that time. As such, he was able to link the Veteran’s current dyspepsia to his military service. There is no other evidence of record that addresses the etiology of the Veteran’s current dyspepsia diagnosis or contradicts these positive opinions. In light of the positive evidence and lack of contradictory evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current dyspepsia is related to his military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The benefit of the doubt will be conferred in the Veteran’s favor. The service-connection claim for a stomach disability, to include dyspepsia, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for IHD, to include as due to herbicide exposure The Veteran contends that he has a current diagnosis of IHD and that he served in the Republic of Vietnam. Therefore, he believes service connection is warranted on a presumptive basis. The Veteran’s service treatment records reflect that he served in the Republic of Vietnam. As such, his exposure to herbicides can be presumed. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Additionally, the Board’s review of the medical evidence reflects that he has been diagnosed with coronary artery disease (CAD), a type of IHD. Specifically, a September 2012 VA chest CT report showed calcific CAD and atherosclerosis of the aorta. A September 2013 VA chest CT report also showed moderate coronary calcifications of the heart. See VA treatment records, September 2012, September 2013. As the evidence establishes that the Veteran has been diagnosed with IHD and he is presumed to have been exposed to herbicides, his current IHD can be presumed to be related to herbicide exposure in service. 38 U.S.C. §§ 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.307, 3.309; Gilbert, supra. His claim of entitlement to service connection for IHD, to include as due to herbicide exposure, is granted. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 4. Entitlement to a compensable rating for a left elbow scar The Veteran has been assigned a noncompensable rating under Diagnostic Code 7805. He contends that a higher rating is warranted. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, that are not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Finally, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). The Veteran was examined for his left elbow scar in June 2012. At that time, the examiner noted a 10-cm. linear scar on the Veteran’s left elbow. The Veteran indicated that he had sustained a laceration in Vietnam and developed a keloid scar, but that the keloid was removed when he returned to the United States. The Veteran denied any current pain or instability from the left elbow scar and the examiner concluded that the scar resulted in no disfigurement or limitation or function. Upon review of the evidence of record, discussed above, there is no basis for a compensable rating for the Veteran’s left elbow scar. He denied experiencing pain or instability of the scar. The scar was not on his face, neck, or head and did not cause disfigurement. Further, he has denied any other functional limitation resulting from the left elbow scar to warrant a compensable rating under another diagnostic code. Without evidence of any symptoms relating to the left elbow scar, a compensable rating cannot be assigned under any diagnostic code. The Board has also considered the Veteran’s general lay statements that he should be entitled to a compensable rating. However, laypersons do not have the competence to render an opinion as to the level of severity of his left elbow scar. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Veteran, as a lay person, is competent to describe observable symptoms, he has not asserted that he experiences any such observable symptoms, such as pain. Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 0 percent rating assigned during the appeals period. The assignment of staged ratings is not warranted. See Hart, supra. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 5. Entitlement to an initial rating in excess of 10 percent for DM The Veteran has been assigned a 10 percent initial rating under Diagnostic Code 7913. He contends that a higher initial rating is warranted. Under Diagnostic Code 7913, a 10 percent rating is assigned for DM that is manageable by restricted diet only. A 20 percent rating is assigned for DM requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for DM requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned for DM requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned for DM requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Compensable complications of DM are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Veteran was examined for his DM claim in April 2014. At that time, his DM was managed by restricted diet only with no regulation of activities. He reported seeing his doctor less than two times per month and no ketoacidosis or hypoglycemic reactions requiring hospitalization in the prior 12 months. The examiner concluded that he did not have any complications from his DM. The record also includes multiple VA treatment records since the April 2014 VA examination. None of these records indicate that the Veteran’s DM has worsened or that he now uses insulin or an oral hypoglycemic agent. Upon review of the evidence of record, discussed above, there is no basis for an initial rating in excess of 10 percent for the Veteran’s DM. He does not use any medications, including insulin or hypoglycemic agents, for his DM and is not required to regulate his activities. Further, he has not had episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. Without evidence of more severe symptoms and treatment with medication, an initial rating in excess of 10 percent cannot be assigned under any diagnostic code. The Board has also considered the Veteran’s general lay statements that he should be entitled to a higher rating. Notably the Veteran, as a lay person, is competent to describe observable symptoms. However, laypersons do not have the competence to render an opinion as to the level of severity of his DM. See Kahana, supra. Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 10 percent initial rating assigned during the appeals period. The assignment of staged ratings is not warranted. See Fenderson, supra. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial rating in excess of 10 percent, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra. REASONS FOR REMAND 1. Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is remanded. The Veteran claims that he has skin cancer that is the result of his herbicide exposure in service. The record reflects that he had a squamous cell carcinoma (SCC) excised from his left mandible in March 2011 and that he is presumed to have been exposed to herbicides in service. VA treatment record, September 2013. Despite this evidence of a current disability, an in-service event, and the Veteran’s assertions that these two are related, he has not been afforded a VA examination or opinion. This issue must be remanded for a VA examination and opinion to address his skin cancer claim. 2. Entitlement to service connection for peripheral neuropathy of the LLE is remanded. The Veteran claims that his peripheral neuropathy of the LLE is due to his service-connected DM, or alternatively due to alcohol use that is related to his service-connected psychiatric disability. He was scheduled for a VA examination to address these contentions but was unable to attend due to a lack of transportation. Veteran statement, March 2017. As the Veteran has provided good cause for his failure to attend his scheduled VA examination, the Board finds that the issue must be remanded to attempt to help the Veteran to attend a VA examination or, alternatively, to obtain a VA medical opinion. 3. Entitlement to service connection for peripheral neuropathy of the RLE is remanded. The Veteran claims that his peripheral neuropathy of the RLE is due to his service-connected DM, or alternatively due to alcohol use that is related to his service-connected psychiatric disability. He was scheduled for a VA examination to address these contentions but was unable to attend due to a lack of transportation. Veteran statement, March 2017. As the Veteran has provided good cause for his failure to attend his scheduled VA examination, the Board finds that the issue must be remanded to attempt to help the Veteran to attend a VA examination or, alternatively, to obtain a VA medical opinion. 4. Entitlement to a rating in excess of 30 percent for anxiety disorder NOS is remanded. An October 2016 private psychologist report indicated that the Veteran was experiencing more severe psychiatric symptoms than those demonstrated at his most recent VA examination in December 2011. Additionally, the Veteran claimed in his March 2017 VA Form 9 that his alcohol use is the result of his service-connected psychiatric disability. VA Form 9, March 2017. This contention has not been addressed by a VA examiner. The Board cannot assess the current severity of his service-connected psychiatric disorder without knowing whether to consider symptoms that are the result of alcohol use. As such, this claim must be remanded for a new VA examination and opinion. 5. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of an increased rating for the Veteran’s psychiatric disability could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for the Vet Center in Gainesville, Florida. After authorization is received, obtain any available treatment records. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for VA examinations to address the nature and etiology of his claimed skin cancer and peripheral neuropathy of the LLE and RLE, and the current severity of his service-connected psychiatric disorder. The RO should attempt to assist the Veteran in obtaining transportation to the scheduled VA examinations. If the Veteran is unable to attend in-person examinations, the RO should attempt to schedule telephonic examinations or obtain medical opinions. With regard to the skin cancer claim, the examiner must opine whether it is at least as likely as not that the Veteran’s excised SCC of the left mandible is related to an in-service injury, event, or disease, including his presumed herbicide exposure. With regard to peripheral neuropathy of the LLE and RLE, the examiner must opine whether it is at least as likely as not related to a service-connected disability, including his service-connected DM and psychiatric disability. With regard to the psychiatric claim, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his/her service-connected psychiatric disorder alone. The examiner must provide an opinion on whether it is at least as likely as not that the Veteran’s alcohol use is self-medication for his service-connected psychiatric disorder. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Moore, Counsel