Citation Nr: 1807734 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disorder, to include as a result of exposure to Agent Orange and chemicals used to clean carburetors. 2. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure. 3. Entitlement to an initial rating in excess of 10 percent for neuropathy, left upper extremity. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1968 to November 1970, including service in the Republic of Vietnam from August 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In November 2015, the Board remanded the Veteran's claims to schedule a travel board hearing. By correspondence dated January 2017, the Veteran indicated that he wanted to cancel his hearing. The issues of entitlement to service connection for a skin disorder and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A September 1978 rating decision denied entitlement to service connection for skin disorder. 2. Evidence received subsequent to September 1978 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for skin disorder, to include as a result of exposure to Agent Orange and chemicals used to clean carburetors. 3. The Veteran's neuropathy of the left upper extremity is consistent with moderate, incomplete paralysis of a major limb. CONCLUSIONS OF LAW 1. Evidence received since the September 1978 rating decision is new and material, and the Veteran's claim of entitlement to service connection a for skin disorder, to include as a result of exposure to Agent Orange and chemicals used to clean carburetors, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for a disability rating of 30 percent, but no greater, for neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8615 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary's duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In September 1978, the RO denied the Veteran's claim of entitlement to service connection for a skin disorder. Part of the reason for this denial was that there was no evidence of a skin disorder at the time of discharge. Since that time, the Veteran has submitted lay statements from several relatives indicating that he has had cracked, dry hands since leaving service. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran's claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran's claim of entitlement to service connection for a skin disorder have been met. The Veteran has confirmed service in the Republic of Vietnam, which means that exposure to Agent Orange is presumed, and a potential basis for the origin of the Veteran's skin disorder. The Veteran also argues that his skin disorder is the result of exposure to chemicals used to clean carburetors. See December 2013 DRO conference report. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In September 2011, the RO granted service connection for neuropathy of the left upper extremity at an initial rating of 10 percent under Diagnostic Code 8615. This is based on mild, incomplete paralysis of a major limb (the Veteran is left handed). The Veteran is appealing the rating aspect of the September 2011 decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from September 3, 2010, the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 8615 provides a rating for neuritis of the median nerve. 38 C.F.R. § 4.124a. Mild, incomplete paralysis is rated 10 percent disabling on the major side and 10 percent on the minor side. Id. Moderate, incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side. Id. Severe, incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Id. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, is rated 70 percent disabling on the major side and 60 percent on the minor side. Id. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. Id. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran's symptoms are consistent with a 30 percent rating based on moderate, incomplete paralysis of a major limb. Due to complications immediately following a September 2010 surgery, the Veteran could not oppose his left middle finger or left pointer finger. See September 2010 VA medical record. He could not oppose, fully flex, or fully extend his left thumb. See id. He experienced tingling and numbness in the left middle finger, left pointer finger, and left thumb. See id. Since that surgery, the Veteran has been unable to use his left hand to operate a fork lift at work. See February 2011 VA medical record (Legacy Content Manager Documents). An October 2010 VA medical record notes that the Veteran's left hand is still limited, but that he is gaining movement. A separate October 2010 VA medical record indicates left hand pain. See Legacy Content Manager Documents. A March 2011 VA occupational consult indicates pain and decreased grip with difficulty buttoning and writing, but that the Veteran's handwriting remains legible. Also according to that record, the Veteran is "showing good progress of recovery from median nerve injury" with function and strength returning. An April 2011 VA provider states that the Veteran "has improved physical status enough that he no longer needs to attend therapy." Based on these records, the Veteran's symptoms are primarily sensory, with loss of some fine motor skills but maintaining the ability to perform other activities such as writing. His medical records do not indicate consistent pain. Such symptoms are consistent with a 30 percent rating based on moderate, incomplete paralysis of a major limb. The Veteran's February 2014 VA nerves examination is consistent with a 30 percent rating, with the examiner noting the Veteran has reduced grip and dexterity in the left hand, that he is unable to manipulate a forklift or drive a car, and that he needs help doing mechanical automotive repairs. At the same time, the Veteran can write and grasp eating utensils. There is no left hand pain or numbness and only mild paresthesias and/or dysesthesias. Wrist flexion, grip, and pinch are at a level of 4/5. Finally, the Veteran can still perform light and sedentary occupations. The limitation of fine motor skills with no pain and mild paresthesias that only limits some, but not all, functional ability is consistent with a 30 percent rating based on moderate, incomplete paralysis of a major limb. The evidence does not support additional staged ratings for any time period on appeal, and for no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. ORDER New and material evidence to reopen the claim for entitlement to service connection for a skin disorder, to include as a result of exposure to Agent Orange and chemicals used to clean carburetors, has been received; to this limited extent, the appeal is granted. Entitlement to an initial rating of 30 percent, but no greater, for neuropathy of the left upper extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). These elements are satisfied with regards to the Veteran's skin disorder but a VA examination has not been provided. The first element is satisfied, in that a March 2014 VA medical opinion indicates that the Veteran was diagnosed with tinea manuum in August 2010 and dyshidrotic eczema in December 2006. See Legacy Content Manager Documents. The second element is satisfied, in that the Veteran is presumptively exposed to Agent Orange due to service in Vietnam and separately argues that his skin disorder is the result of exposure to chemicals used to clean carburetors. See December 2013 DRO conference report. Regarding the third and fourth elements, there is an indication that a skin disorder could have been caused by exposure to chemicals, but there is insufficient evidence of record by which a decision can be made. As all four McLendon elements are satisfied, the Veteran is entitled to a new VA examination. The Board notes that a March 2014 VA medical examiner opines that the Veteran's skin disorder is less likely than not related to service because his in-service skin disorder (tinea versicolor) is caused by a different fungus than his current skin disorder. See Legacy Content Manager Documents. In reaching this opinion, the examiner does not address whether the Veteran's dyshidrotic eczema has a non-fungal origin. Because the March 2014 VA medical opinion does not address all theories of entitlement, it cannot by itself serve as a basis for denying the Veteran's claim of entitlement to service connection for a skin disorder, to include as a result of exposure to Agent Orange and chemicals used to clean carburetors. In November 2015, the Board held that a TDIU claim was reasonably raised by the record and was part and parcel of the Veteran's claim for an increased rating for neuropathy of the left upper extremity. This claim is inextricably intertwined with the claim remanded for further development. Accordingly, the claims must be considered together, and thus a decision by the Board on the Veteran's TDIU claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). VA treatment records to February 19, 2014, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from February 20, 2014, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of the Veteran's VA treatment from February 20, 2014, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed skin disorder, to include tinea versicolor and dyshidrotic eczema. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: a. Whether the Veteran has any current or previously-diagnosed skin disorder, to include tinea versicolor and dyshidrotic eczema; and b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed skin disorder, to include tinea versicolor and dyshidrotic eczema, was incurred in the Veteran's service, including but not limited to exposure to Agent Orange or chemicals used to clean carburetors. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs