Citation Nr: 18160926 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-44 596 DATE: December 28, 2018 ORDER New and material evidence has been received sufficient to reopen the Veteran’s previously denied service-connection claim for a heart disability. Entitlement to service connection for ischemic heart disease (IHD), as due to exposure to herbicide agents, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to exposure to herbicide agents, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to exposure to herbicide agents, is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for erectile dysfunction (ED), as secondary to peripheral neuropathy of the right and left lower extremities is remanded. Entitlement to a disability rating greater than 10 percent for injury to flexion and lateral motion of the spine is remanded. FINDINGS OF FACT 1. In a March 1999 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s service-connection claim for a heart disability. The Veteran did not file a notice of disagreement, nor did he submit new and material evidence within one year of the decision. 2. In an August 2011 rating decision, the AOJ denied the Veteran’s heart disability claim again, after performing a special de novo review. The Veteran was notified of this determination in a September 7, 2011 letter. He did not file a notice of disagreement, nor did he submit new and material evidence within one year of notice of this decision. 3. Additional evidence received since the AOJ’s August 2011 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s IHD is presumptively related to his in-service herbicide agent exposure. 5. The Veteran’s bilateral lower extremity peripheral neuropathy is related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The March 1999 and August 2011 rating decisions denying entitlement to service connection for a heart disability are final. 38 U.S.C. §§ 7105 (2002); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s service-connection claim for a heart disability. 38 U.S.C. §§ 1110, 5108 (2002); 38 C.F.R. §§ 3.303, 3.156 (2018). 3. The criteria for entitlement to service connection for IHD are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(e) (2018). 4. The criteria for service connection for left lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 5. The criteria for service connection for right lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to August 1971. He is the recipient of the Purple Heart Award. New and Material Evidence In the present case, the AOJ, by a decision entered in March 1999, denied the Veteran’s service-connection for a heart disability based on a finding that a current heart disability was not shown by the record. The AOJ notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the AOJ’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2018). As a result, the RO’s decision became final. 38 U.S.C. §§ 7105 (2002); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). Subsequently, in August 2011, the AOJ took up a special review of the Veteran’s previously-denied heart claim based on Nehmer rulings, and determined that the Veteran did not have ischemic heart disease warranting an award of service-connection based on a presumed relationship to in-service herbicide exposure. The AOJ notified the Veteran of his decision on September 7, 2011. The Veteran did not file a notice of disagreement within one year of notice, nor did he submit new and material evidence within that year. As such, the August 2011 rating decision is also final. The Veteran filed an application to reopen his previously-denied claim in late September 2012. The claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2002); 38 C.F.R. § 3.156(a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the evidence received since the time of the AOJ’s August 2011 rating decision includes VA treatment records confirming diagnoses of coronary artery disease, which by regulation is listed as a form of ischemic heart disease (IHD). This evidence relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection The Veteran contends that he developed IHD and peripheral neuropathy as a result of his active duty service. The Veteran had active service in the Republic of Vietnam, and exposure to herbicide agents is conceded. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for certain diseases, such as ischemic heart disease and early-onset peripheral neuropathy associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for IHD, as due to exposure to herbicide agents. The Veteran asserts that his IHD disability is due to exposure to herbicide agents while serving in the Republic of Vietnam. The Veteran underwent VA examination in October 1998 and March 2013 at which time he was diagnosed with an inferior infarct - age undetermined, heart block and an implanted cardiac pacemaker. VA treatment records indicate that the Veteran has been diagnosed with coronary artery disease, atherosclerotic cardiovascular disease, and aortic atherosclerotic disease. See June 2014 VA Pulmonary Note; December 2016 VA Pulmonary Note; June 2015 VA Pulmonary Note. Ischemic heart disease is a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). Ischemic heart disease includes, but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal’s angina. 38 C.F.R. § 3.309(e). Based upon the foregoing and most probative evidence of record, the Board finds that the Veteran has an IHD disability as defined by 38 C.F.R. § 3.309(e). As exposure to herbicide agents has been conceded, an in-service injury is established. Further, as IHD is a presumptive disease under VA regulation, the Board finds that service connection for IHD is warranted. See 38 C.F.R. § 3.307, 3.309. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to exposure to herbicide agents. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to exposure to herbicide agents Further, the Veteran asserts that his bilateral lower extremity peripheral neuropathy is a result of exposure to herbicide agents while serving in the Republic of Vietnam. Post service treatment records document diagnoses of bilateral lower extremity peripheral neuropathy of unknown etiology. See July 1995 Dr. V.J. Opinion, August 1995 Dr. R.M. and L.P. letter; April 1996 University of Virginia Health Sciences Center Neurological Out-patient Note; October 1998 VA Examination, July 2013 VA Neurology Attending Note. The Board acknowledges the Veteran’s exposure to herbicide agents during active duty service and an in-service injury is established. See 38 U.S.C. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); Service connection is available for certain types of peripheral neuropathy as presumptively associated with exposure to certain herbicide agents under 38 C.F.R. §§ 3.307 and 3.309. Early-onset peripheral neuropathy (formerly “acute and subacute peripheral neuropathy”) is capable of presumptive service connection, but must manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides. 38 C.F.R. §§3.307 (a)(6)(ii), 3.309(e). Private treatment records indicate that the Veteran’s peripheral neuropathy began in approximately 1990. As there is no objective quantifiable evidence of peripheral neuropathy until many years after service, the Board cannot conclude that the Veteran’s bilateral lower extremity peripheral neuropathy manifested to a degree of 10 percent within a year after the date of his last exposure. Therefore, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not possible. Although service connection is not possible in this case on a presumptive basis, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board finds that the weight of the evidence is in favor of an award of service connection as directly due to herbicide agent exposure. The Veteran has submitted a private medical opinion from Dr. P.C. linking the diagnosed bilateral lower extremity peripheral neuropathy to herbicide agent exposure. Drawing on the Veteran’s own disability picture, which did not include a history of risk factors for peripheral neuropathy other than herbicide exposure, Dr. P.C.’s opinion provides enough clinical explanation to be supportive of the claim. Based on the foregoing, the Board finds that service connection for bilateral lower extremity peripheral neuropathy is warranted. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Veteran asserts that his tinnitus disability is a result of noise exposure experienced during active duty service. The Veteran has reported that his constant bilateral tinnitus had been present “for a long time.” See April 2013 VA Examination. At a May 30, 2013 Otolaryngology Consult, the Veteran reported tinnitus that began approximately in the 1980s. The Veteran underwent VA examination for bilateral hearing loss and tinnitus in April 2013. At that time, sensorineural hearing loss and tinnitus were both diagnosed. The examiner did not link the Veteran’s hearing loss to service, and determined that the Veteran’s tinnitus was a symptom of his hearing loss. It appears the examiner’s initial finding that hearing loss was unrelated to service was based in part on in-service audiometric testing performed prior to the Veteran’s combat service in Vietnam. It is unclear to the extent, if at all, such a finding played a part in determining that tinnitus was a symptom of hearing loss, as opposed to directly related to in-serivce combat noise exposure in and of itself. On remand, a new VA examiantion should be scheduled to assess the etiology of the Veteran’s tinnitus. 2. Entitlement to service connection for ED, as secondary to peripheral neuropathy of the right and left lower extremities is remanded. The Veteran asserts that his ED is a result of his now-service connected bilateral peripheral neuropathy. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s ED disability is caused or aggravated by his bilateral peripheral neuropathy disabilities. 3. Entitlement to a disability rating greater than 10 percent for injury to flexion and lateral motion of the spine is remanded. The Veteran is service connected for an injury to flexion and lateral motion of the spine, and has been awarded a 10 percent rating under Diagnostic Code 5319, which rates muscle injury to Group XIX. In an April 2018 statement, the Veteran, through his representative, asserted that the injury to the flexion and lateral motion of his spine has increased in severity since the Veteran was last examined by VA in March 2013. The Veteran’s attorney has stipulated that since submitting a July 2016 Appellant’s Brief, the Veteran’s disability has manifested as symptoms that affect his balance, stability, and ability to walk, stand, or move. See also April 2018 D.B. Buddy Statement, April 2018 M.B. Buddy Statement. While the Veteran’s attorney has requested that the Board consider whether an extraschedular rating is applicable at this time, it remains possible that higher ratings are available under the current schedule. To make this determination, an updated VA examination of the Veteran’s disability is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his tinnitus disability. The examiner should take a history from the Veteran as to the progression of the claimed disability. After review of the record and interview with the Veteran, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus had onset in, or is otherwise related to the Veteran’s in-service noise exposure during combat activity during the Vietnam War. All opinions should be accompanied with a medical explanation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his erectile dysfunction. The examiner should take a history from the Veteran regarding the progression of his disability. Upon review of the record and interview of the Veteran, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction was caused or aggravated beyond its natural progression by his now service-connected peripheral neuropathy disability of the left and right lower extremities. The examiner is asked to consider the medical literature and articles discussing ED and peripheral neuropathy that have been submitted by the Veteran. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected injury to the flexion and lateral motion of his spine. 4. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under both the muscle injury rating criteria, and the General Rating Formula for Diseases and Injuries to the Spine. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the injury to the flexion and lateral motion of his spine alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Then, readjudicate the claims. If the benefits sought are denied, issue the Veteran and his attorney as Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel