Citation Nr: 1812916 Decision Date: 03/01/18 Archive Date: 03/13/18 DOCKET NO. 15-00 047A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for scleroderma. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension and a heart disability, claimed as heart disease. 3. Entitlement to service connection for hypertension and a heart disability, claimed as heart disease. 4. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an immune system disorder, claimed as immunodeficiency disorder. 5. Entitlement to service connection for an immune system disorder, claimed as immunodeficiency disorder. 6. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for varicose veins. 7. Entitlement to service connection for varicose veins. 8. Entitlement to service connection for reactive airway disease, to include chronic extrinsic asthma. 9. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include ciliary dysfunction. 10. Entitlement to service connection for emphysema. 11. Entitlement to service connection for chronic viral rhinitis. 12. Entitlement to service connection for laryngitis, claimed as damaged trachea lining. 13. Entitlement to service connection for gastroesophageal reflux disease (GERD). 14. Entitlement to service connection for a left leg disability. 15. Entitlement to service connection for a left knee disability. 16. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, claimed as degenerative arthritis, with mild left lower extremity radiculopathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran had active service from April 1954 to April 1956, from July 1958 to July 1962, from October 1962 to October 1968, from January 1969 to October 1972, and from October 1972 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee (Agency of Original Jurisdiction (AOJ)). In July 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing held at the Nashville RO. A transcript of that hearing is of record. The issues of entitlement to service connection for asthma and reactive airway disease have been consolidated into one issue, as physicians use these two diagnoses interchangeably. Similarly, the issues of entitlement to service connection for COPD and ciliary dysfunction have also been combined into one issue. During the July 2017 Board hearing, the Veteran expressed that he wished to withdraw his appeal for entitlement to service connection for scleroderma. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a heart disability, immune system disorder, varicose veins, reactive airway disease to include chronic asthma, COPD to include ciliary dysfunction, viral rhinitis, laryngitis, GERD, emphysema, left leg disability, and left knee disability, and entitlement to an increased rating for lumbar spine disability are addressed in the REMAND portion of the decision below and REMANDED to the AOJ. FINDINGS OF FACT 1. In July 2017, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his appeal of the claim for a service connection for scleroderma. 2. In an August 2002 rating decision, the AOJ denied service connection for a heart disability, finding that there was no in-service record of any treatment or diagnosis for this disability, that there was no link between service and the Veteran's current heart disability, that the evidence did not show that the Veteran's heart disability resulted from or was aggravated by a service-connected disability, and that the evidence did not show that the Veteran's heart disability developed within the required presumptive period following discharge from the military. 3. Since the August 2002 rating decision, the Veteran has submitted medical evidence and provided testimony regarding a nexus between chronic infections resulting from service, and his heart disability, which relates to a previously unestablished fact necessary to substantiate the claim. 4. In an August 2002 rating decision, the AOJ denied service connection for an immune system disorder, finding that the Veteran did not have a current immune system disorder and that there was no evidence of any immune system disorder treated for or diagnosed during service. 5. Since the August 2002 rating decision, the Veteran has submitted medical evidence and provided testimony regarding a possible diagnosis of an immune system disorder and its relationship to chemical exposure in service, which relates to previously unestablished facts necessary to substantiate the claim. 6. In an April 2004 rating decision, the AOJ denied service connection for varicose veins, finding that there was no record or diagnosis of varicose veins in service, and that there was no nexus to any event or incident in service. 7. Since the April 2004 rating decision, the Veteran has submitted evidence which suggests that he has had varicose veins since service, and that they may have resulted from other disabilities possibly incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the claim of entitlement to service connection for scleroderma. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The August 2002 rating decision that denied service connection for a heart disability and immune system disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 3. Evidence pertaining to the Veteran's heart disability received since the August 2002 rating decision is new and material, thus the claim for service connection for a heart disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. Evidence pertaining to the Veteran's immune system disorder received since the August 2002 rating decision is new and material, thus the claim for service connection for an immune system disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The April 2004 rating decision that denied service connection for varicose veins, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 6. Evidence pertaining to the Veteran's claim for varicose veins is new and material, thus the claim for service connection for varicose veins is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Scleroderma The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. New and Material Evidence The AOJ denied the Veteran's claims for service connection for a heart disability and immune system disorder in an August 2002 rating decision, finding that there was no current immune system disorder, and that his heart disability was not incurred in service, nor was there any nexus to service. The Veteran did not appeal that decision or submit new and material evidence within one year of notification of the decision. Therefore, that decision is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2017). Similarly, in April 2004, the AOJ denied the Veteran's claim for service connection for varicose veins, finding that there was no evidence of varicose veins being diagnosed or treated for in service, and there was no nexus to any event or injury in service. The Veteran did not appeal that decision or submit new and material evidence within one year of notification of the decision. Therefore, that decision is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2017). Subsequently, the Veteran submitted additional evidence relevant to his claims, however the AOJ denied reopening the claims in April 2014 and February 2015 rating decisions. Regardless of how the AOJ ruled on the question of reopening, however, the Board must decide the matters on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In any event, the evidence received since the August 2002 and April 2004 rating decisions includes evidence that is new and material to the claims. See 38 C.F.R. § 3.156. Specifically, with regard to his heart disability, the Veteran submitted a letter from his private physician, J.L. (initials used to protect privacy), which indicated that his frequent sinus, bronchial, and throat infections in service, may have contributed to his heart disability. The Veteran also testified during the Board hearing that exposure to carbon tetrachloride during service may have caused his hypertension, which is related to his heart disability. With regard to his immune system disorder, the Veteran submitted a letter from his physician, E.C., which indicated that there was a relationship between the Veteran's exposure to chemicals in service and his inflammation, which the Veteran claims is related to his immune system disorder. The Veteran also testified during the hearing that exposure to chemicals during his service at Camp Lejeune, North Carolina, suppressed his immune system. Finally, with regard to the claim for service connection for varicose veins, the Veteran submitted a letter from his wife, indicating that he had varicose veins since service. He also testified during the hearing that an accident which occurred during service caused a left knee and left leg disability, and that his varicose veins also resulted from that incident. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened. ORDER The appeal as to the claim for service connection for scleroderma is dismissed. The claim of entitlement to service connection for a heart disability is reopened. To this extent only, the appeal is granted. The claim of entitlement to service connection for an immune system disorder is reopened. To this extent only, the appeal is granted. The claim of entitlement to service connection for varicose veins is reopened. To this extent only, the appeal is granted. REMAND Left Knee, Left Leg, and Varicose Veins During the July 2017 hearing, the Veteran reported that he had an accident in service which resulted in his left knee, left leg, and varicose vein disabilities. The Veteran also submitted a medical opinion from his private physician which indicated that there was a plausible connection between his exposure to chemicals and his arthritic disabilities. As such, additional VA examinations and medical opinions which consider this new testimony and evidence are needed. Heart Disability, Immune System Disorder, Reactive Airway Disease, COPD, Viral Rhinitis, Laryngitis, Emphysema, and GERD During the hearing, the Veteran also reported that numerous events that occurred in service were caused or related to his claimed disabilities. Specifically, the Veteran reported that his exposure to chemicals in the water at Camp Lejeune caused his respiratory diseases. The Veteran also reported he was given a live virus flu shot in service, exposed to secondhand smoke, and exposed to chemicals and exhaust from working in a battery locker. He reported that these experiences in service all contributed to his claimed disabilities. In support of his testimony, the Veteran also submitted opinions from his private physicians. As such, additional VA examinations and opinions are needed, which take into account this new evidence and testimony. The Board notes that a November 2016 opinion pertaining to the Veteran's heart disability and viral rhinitis, addressed the claimed exposure to chemicals in service. However, the hearing occurred after that opinion was obtained, which included additional testimony as noted above, that had not been addressed in the opinion. As such, updated opinions with regard to the Veteran's heart disability and viral rhinitis are needed. Lumbar Spine Regrettably, a new examination is also required to comply with recent developments in the law pertaining to the Veteran's lumbar spine disability. The United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See 38 C.F.R. § 4.59. There is no current examination which meets the Correia requirements. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims folder, any updated private and VA treatment records, including any records from the Naval Hospital in Millington and the VA Medical Center in Memphis, Tennessee, that have not yet been associated with the record. 2. Schedule the Veteran for a VA examination to address the current severity of his lumbar spine disability. In addition to the necessary findings, the VA examinations must include: (a) Range of motion testing for the lumbar spine in the following areas: active motion, passive motion, weight-bearing, and nonweight-bearing; (b) If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 3. The Veteran should be afforded new VA examinations to address the etiology of his left leg, left knee, and varicose vein disabilities. The examiner should provide an opinion as to the following: (a) Are the Veteran's left knee, left leg, and varicose vein disabilities at least as likely as not (i.e., a 50 percent or greater probability) caused by or related to his service? The examiner should consider and address the testimony and evidence provided by the Veteran, including: his reports of an accident in service where he was knocked down by a load on a ship, a letter submitted by his wife which indicates that he had varicose veins since he left service, and a January 2016 letter from his physician, E.C., which indicates that there is a plausible connection between his chemical exposures and arthritic conditions. (b) If the Veteran's left leg, left knee, or varicose vein disabilities are unrelated to service, whether it is at least as likely as not (50 percent or greater probability) that any of these disabilities are caused by, proximately due to, or the result of his service-connected disabilities, OR; (c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left leg, left knee, or varicose vein disabilities were aggravated beyond the normal progress of the disorder by his service-connected disabilities. 4. The Veteran should also be afforded new VA examinations to address the etiology of his heart disability, immune system disorder, reactive airway disease, COPD, viral rhinitis, laryngitis, emphysema, and GERD. The examiner should provide an opinion as to the following: (a) Are the Veteran's heart disability, immune system disorder, reactive airway disease, COPD, viral rhinitis, laryngitis, emphysema, and GERD at least as likely as not (i.e., a 50 percent or greater probability) caused by or related to his service? The examiner should consider and address the testimony and evidence provided by the Veteran, including: his testimony that he was exposed to chemicals in the water at Camp Lejeune, his testimony that he was exposed to chemicals and exhaust fumes from working in a battery locker, his testimony that he was exposed to secondhand smoke, his testimony that he was given a live virus flu shot, a January 2016 letter from his physician, E.C., which indicated that there is a plausible connection between his chemical exposures and inflammatory conditions, an April 2004 letter from his physician, J.C., which indicated that chronic infections, including service-connected bronchitis, may have resulted in the development of his heart disability, and an April 2003 letter from his physician, J.L, which indicated that his multiple sinus and bronchial infections and strep throat in service, may have contributed to his heart disability. (b) If the Veteran's heart disability, immune system disorder, reactive airway disease, COPD, viral rhinitis, laryngitis, emphysema, or GERD are unrelated to service, whether it is at least as likely as not (50 percent or greater probability) that any of these disabilities are caused by, proximately due to, or the result of his service-connected disabilities, OR; (c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart disability, immune system disorder, reactive airway disease, COPD, viral rhinitis, laryngitis, emphysema, or GERD were aggravated beyond the normal progress of the disorder by his service-connected disabilities. 5. Following the development directed above, readjudicate the Veteran's claims. If any claim remains denied, issue a Supplemental Statement of the Case (SSOC) addressing the issues. The Veteran should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs