Citation Nr: 1815475	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  14-25 160A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for G6PD deficiency.  

2.  Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1963 to May 1968 and from November 1968 to July 1972.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2011 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and Atlanta, Georgia respectively.  

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2017.  The transcript of the hearing is associated with the electronic claims file.  

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) (West 2014).


FINDINGS OF FACT

1.  The Veteran's service record shows active service in the Republic of Vietnam during the Vietnam era.   

2.  In a March 1997 rating decision, the RO denied service connection for peripheral neuropathy.  The Veteran was notified of the decision and of his appellate rights, but he did not perfect an appeal.  

3.  Evidence received since the March 1997 rating decision denying service connection for peripheral neuropathy relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  

4.  The Veteran's G6PD deficiency is a congenital disease which was aggravated during active service.  

5.  The Veteran's bilateral upper and lower extremity peripheral neuropathy is not secondary to service-connected diabetes mellitus.  


CONCLUSIONS OF LAW

1.  The March 1997 rating decision, which denied service connection for peripheral neuropathy, is final.  38 U.S.C. § 7105 (West 1997); 38 C.F.R. § 3.105 (1997).  

2.  New and material evidence has been received to reopen the claim for service connection for peripheral neuropathy.  38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017).  

3.  The criteria for aggravation of the pre-existing disability G6PD deficiency have been met.  38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.306 (2017).  

4.  The criteria for service connection for bilateral upper and lower extremity neuropathy have not been met.  38 U.S.C. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

I.  Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

II.  Petition to reopen the claim for service connection for peripheral neuropathy

In a March 1997 rating decision, the RO denied entitlement to service connection for peripheral neuropathy.  The Veteran did not file a timely appeal to the decision and it became final.  38 U.S.C. § 7105 (West 1997); 38 C.F.R. § 3.105 (1997).  

In the May 2012 rating decision, it appears that the RO reopened the claim for entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, and then denied the underlying claim on the merits.  New and material evidence is required to reopen the previously denied claim of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy.  

In reviewing the May 2012 decision, the Board has determined that a new and material evidence analysis is proper for the peripheral neuropathy issues on appeal, as they were clearly adjudicated by the March 1997 decision.  See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether it is evidence tending to substantiate an element of the previously adjudicated matter).  

Regardless of the AOJ's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ should be reopened.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)).  See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the peripheral neuropathy issue before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been provided, that is where the analysis must end.  

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means 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) (2017).

The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim.  Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).  The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).  That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim.  Shade, 24 Vet. App. at 119.  

For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).  

Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final March 1997 rating decision denying service connection for peripheral neuropathy.  The basis for denying the Veteran entitlement to service connection in 1997 was that peripheral neuropathy was not shown to be either incurred during service or the result of exposure to herbicide agents.  In an April 2010 rating decision, the RO granted entitlement to service connection to the Veteran for diabetes mellitus.  The Veteran has since contended in a February 2012 statement that his peripheral neuropathy is related to his now service-connected diabetes mellitus.  

Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under 38 U.S.C. § 7104(b) (2012)," any evidence supporting the veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108.  Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008).  As the Veteran has been granted entitlement to service connection for diabetes mellitus since the previous rating decision, which forms the basis of a new theory of entitlement, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen the claim for service connection for peripheral neuropathy.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  


III.  Service Connection 

Initially, the Board notes that the Veteran's service records show that he served in the Republic of Vietnam, and as such, he is presumed to have been exposed to herbicide agents, including Agent Orange.  See 38 U.S.C. § 1116(f), 38 C.F.R. § 3.307(a).  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d).  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  As a general matter, service connection requires competent evidence showing: (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 - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more disabling within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau, 492 F.3d at 1377.  In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board must assess the competence and credibility of lay statements.  Barr, 21 Vet. App. at 308.  The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation.  King v. Shinseki, 700 F.3d 1339, 1344 (2012).  

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).  

	a.  G6PD deficiency 

The Veteran contends that as a result of active service his diagnosed condition known as G6PD deficiency was aggravated.  After a review of the competent evidence of record, the Board finds that service connection for G6PD deficiency is warranted.  

The Board observes that the Veteran's G6PD deficiency is a lack or defect linked to congenital factors (x-linked disorder).  However, the Board notes that the disorder has not been characterized as a congenital defect.  See for example Williams v. West, No. 98-859 (U.S. Vet. App. June 27, 2000) (consideration of an increased rating for service-connected G6PD deficiency).  As a congenital defect it could not be recognized as a disability for which service connection may be granted or compensation paid.  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that "non-disease or non-injury entities such as congenital defects" are not "disabilities" within the meaning of 38 U.S.C. § 1110); 38 C.F.R. § 3.303(c) (2017) (providing that congenital or developmental defects "are not diseases or injuries" for VA disability compensation purposes).  

The Veteran's service treatment records (STRs) contain an extensive history for the Veteran's G6PD deficiency disorder.  The Veteran served in the Republic of Vietnam, a malaria-prone area requiring anti-malaria prophylaxis for armed services personnel.  The STRs document that in 1969 the Veteran had an adverse reaction to anti-malaria medication which resulted in hemolytic crisis and jaundice, necessitating hospitalization outside the country.  The medical staff discovered that the Veteran had G6PD deficiency, which causes, among other symptoms, hemolytic anemia and jaundice when exposed to certain medications including the anti-malarial pills that the Veteran had taken.  The Veteran was treated and returned to the United States.  In June 1969, the Veteran's profile for service allowed a return to duty with the restriction that he be stationed in areas not requiring anti-malaria treatment.  The Veteran was then stationed in Germany.  

The Veteran's STRs document that while in Germany the Veteran continued to have sporadic incidents of hemolytic anemia (e.g. January 1972) and jaundice, which, along with cardiac issues, prompted the Army to return the Veteran to Walter Reed hospital in the United States for further study.  A May 1972 treatment record states that there was no evidence of symptoms related to the Veteran's G6PD deficiency prior to 1969 and that since that time symptoms had increased.  

The Army placed the Veteran on temporary disability in 1972.  In June of that year the Veteran underwent a physical evaluation board (PEB).  The PEB examiner diagnosed the Veteran with G6PD deficiency with hemolytic component, including a determination that the condition was incurred in the line of duty, that the condition existed prior to service, and that it had been aggravated in service.  The PEB concluded that the Veteran should be medically released from the Army and recommended service connection and a rating evaluation of zero percent for "G6PD deficiency, with recurrent hemolytic episodes, currently without anemia or evidence of hemolysis, associated with sickle cell trait."  

The Veteran was subsequently denied service connection for this condition in 1972 and 1977 rating decisions.  

Post-service, there is a medical treatment note dated June 1990 interpreting laboratory findings which stated that the Veteran had "trace hemolysis."  

In December 2010, in accordance with the decision in Nehmer v. U.S. Department of Veterans Affairs, the RO sent a letter to the Veteran informing him that it would be reviewing past rating decisions, including the 1970s decisions for G6PD deficiency because the RO had previously rated the condition as analogous to B-cell/Hairy Cell leukemia, which was covered by the new Agent Orange regulations for service connection.  Thus, the Veteran's claim was reopened.  The RO denied entitlement to service connection for the Veteran's G6PD deficiency because records did not show he had been diagnosed with leukemia.  The Veteran submitted a timely Notice of disagreement and Form VA-9 to appeal the decision.  

The Veteran was afforded a VA examination in June 2014.  The examiner confirmed a diagnosis of G6PD deficiency as a hereditary and pre-existing condition.  The examiner noted that the Veteran was anemic, but did not have hemolytic anemia at the time of the examination.  The examiner stated that the Veteran's episodes in "service had resolved and there were no sequelae - no opinion indicated" and that G6PD deficiency is "not a disease or a disability."  

As explained above, G6PD is not categorized at VA as a congenital defect, thus the examiner's June 2014 opinion that the condition is "not a disease or disability" is not a valid legal determination.  VA law defines "defects" and "diseases" for purposes of determining if service connection is warranted.  In Quirin, the United States Court of Appeals for Veterans Claims (Court) explained that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating,'" and stated that "any worsening-any change at all-might demonstrate that the condition is a disease."  22 Vet. App. at 394-395 (quoting VAOGCPREC 82-90 (1990)).  The Court further explained that an examiner's determination of whether a condition is a congenital disease or defect "must be supported by 'guidance from medical authorities regarding the proper classification of [the] medical condition at issue.'"  Id. at 395 (quoting VAOGCPREC 82-90)).  More recently, the U.S. Court of Appeals for the Federal Circuit has provided a concise summary of the difference between a defect and disease for VA disability benefits determinations, stating that an essentially valid contrast between a disease and a defect is that a disease is capable of improving or deteriorating and a defect is not.  O'Bryan v. McDonald, 771 F.3d 1376, 1379 (Fed. Cir. 2014).  

In summary, the Veteran's STRs document two separate international medical transfers for G6PD-related symptoms in service, and a determination by the 1972 PEB that the Veteran's G6PD deficiency existed prior to service, was aggravated in service, and was a line-of-duty incurrence.  Accordingly, the Board finds that the Veteran's G6PD deficiency disorder warrants service connection.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  

	b.  Peripheral Neuropathy 

The Veteran contends that because of service-connected diabetes mellitus he has peripheral neuropathy of the bilateral upper and lower extremities.  After a review of the competent evidence of record, the Board finds that service connection for bilateral upper and lower extremity peripheral neuropathy is not warranted.  

Under section § 3.310(a), service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).   

The Veteran's STRs do not show treatment for, or complaints of, peripheral neuropathy during active service.  

The Veteran first filed a claim for peripheral neuropathy in August 1996.  The RO denied direct service connection and a presumption for service connection based on herbicide agent exposure in March 1997.  

The Veteran was granted service connection for diabetes mellitus in 2010 with an effective date of October 1, 2009.  

The Veteran filed a new claim for service connection for peripheral neuropathy in February 2012, asserting that it was a result of the service-connected diabetes mellitus.  

The Veteran was afforded a VA examination in March 2012.  The examiner referenced an EMG study dated August and September 2011 which confirmed that the Veteran had generalized peripheral neuropathy of the bilateral upper and lower extremities.  The examiner opined that it would be speculative to say that the Veteran's peripheral neuropathy had developed as a result of diabetes mellitus given that the Veteran was experiencing symptoms of peripheral neuropathy for many years prior to the diagnosis of diabetes mellitus.  

The RO requested a clarification opinion from a VA examiner for peripheral neuropathy in September 2015.  The examiner opined that the Veteran's peripheral neuropathy is not caused by diabetes mellitus, with the rationale that the Veteran's peripheral neuropathy developed prior to diabetes mellitus.  The examiner listed other possible contributing factors to the peripheral neuropathy such as B12 deficiency, stroke, and sickle trait.  

The Veteran also claimed in a written statement dated November 2013 that his peripheral neuropathy was caused by Vitamin B12 deficiency.  As the Veteran is not service-connected for Vitamin B12 deficiency, that disorder cannot serve as the basis for a secondary service connection claim.  38 C.F.R. § 3.310.  

Therefore, the Board finds that the weight of the evidence is against a finding of entitlement to service connection for bilateral upper and lower extremity neuropathy.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49 (1990).  


ORDER

New and material evidence having been submitted, the Veteran's claim of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy is reopened.  

Entitlement to service connection for G6PD deficiency is granted.  

Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is denied.  




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs