Citation Nr: 1816093	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  11-19 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, sleep impairment, panic disorder, anxiety disorder, and agoraphobia.

2.  Entitlement to service connection for peripheral neuropathy of the lower extremities, claimed as "Lower (ext) Legs" condition, to include as secondary to herbicide exposure. 

3.  Entitlement to service connection for stroke residuals.

4.  Entitlement to service connection for skin lesions to include as secondary to herbicide exposure to Vietnam. 

5.  Entitlement to service connection for hypertension. 

6.  Entitlement to service connection for a low back disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

I. Altendorfer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1957 to April 1959, and May 1959 to June 1978.  He passed away in August 2012.  The Appellant is the Veteran's surviving spouse, and, pursuant to a March 2013 memorandum decision, she has been substituted as the claimant in the Veteran's appeal. 
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In December 2011, the Board remanded the current issues for further evidentiary development.  In regards to the issues of entitlement to service connection for peripheral neuropathy and low back condition, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
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 an acquired psychiatric disability, stroke residuals, skin lesions, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  At no time during the pendency of the appeal has the Veteran had a current diagnosis of peripheral neuropathy or lower leg condition, and the record does not contain a recent diagnosis of a disability prior to the Veteran's filing of the claim.

2.  At no time during the pendency of the appeal has the Veteran had a current diagnosis of a low back condition, and the record does not contain a recent diagnosis of a disability prior to the Veteran's filing of the claim.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a lower leg condition, including peripheral neuropathy of the lower extremities, have not been met.  38 U.S.C. §§ 1101, 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2.  The criteria for service connection for a low back condition have not been met.  38 U.S.C. §§ 1101, 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Appellant contends that the Veteran developed peripheral neuropathy, or an alternative lower leg condition, and low back condition as a result of his military service, such that service connection for each is warranted. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R.  § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R.  § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.  § 3.303(d).

In the absence of proof of a present disability, there can be no valid claim for service connection.  See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  Additionally, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Turning first to the peripheral neuropathy/lower leg condition claim, the record does not substantiate a diagnosis of peripheral neuropathy or any other disability.  VA treatment records show that the Veteran complained of muscle weakness and impaired balance in October 2009, December 2009, January 2010, and February 2010.  However, neither a diagnosis of neuropathy of the lower extremities, nor any other diagnosis to which the complaints of weakness may be attributed, was rendered. 

The Board does not dispute that the Veteran experienced weakness in the lower extremities.  However, an underlying disability was not diagnosed, and general symptoms alone, without a diagnosed or identifiable underlying malady or condition, may not in and of themselves be considered a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that a diagnosis of "pain" does not in and of itself constitute a disability); see also Oakley v. Shinseki, 2011 U.S. App. Vet. Claims LEXIS 1540, at *6-7 (July 20, 2011) (finding that "clicking" with diagnosis of "weakness in RC muscles [and] pos impingement tests" did not constitute a disability).  While the Veteran is competent to state that he experienced feelings of weakness in the lower extremities, as a lay person, he is not competent to provide evidence as to more complex medical questions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  

In short, the objective medical evidence of record does not establish a current peripheral neuropathy or lower leg condition for purposes of establishing entitlement to VA disability compensation.  In the absence of a currently diagnosed disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for a peripheral neuropathy/lower leg condition is denied.

Turning now to the low back condition, the Board finds that although the Veteran complained of low back pain, the medical evidence of record does not substantiate a diagnosed disability, such that service connection for a low back condition is not warranted.  

As similarly discussed above, an underlying disability has not been diagnosed, and pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a disability for which service connection may be granted.  Sanchez-Benitez, 13 Vet. App. at 285.  While the Veteran is competent to state that he had low back pain, as a lay person, he is not competent to provide evidence as to more complex medical questions.  See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis).  

In short, the objective medical evidence of record does not establish a current low back condition for VA purposes.  In the absence of a current disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for a peripheral neuropathy condition and low back condition is denied.

The Board acknowledges that no VA examination or opinion was provided to the Veteran prior to his death.  Notwithstanding the fact that an in-person examination of the Veteran is not an option at this juncture, the Board has considered VA's duty to obtain a VA opinion in this appeal.  In this case, the substitute is continuing the appeal on behalf of the deceased Veteran, and this remains a claim for "disability compensation" as described in 38 U.S.C. § 5103A (d).  Cf. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (applying to claims under Chapter 13, not Chapter 11, and providing for a different standard when 38 U.S.C. § 5103A (a), and not (d), applies in Dependency and Indemnity Compensation claims). 

Here, however, the Veteran submitted unsupported and nonspecific arguments that his "lower leg condition" was caused or a result of his military service.  See Veteran's January 2010 claim ("Lower (ext) Legs").  In regards to his low back claim, the Veteran also submitted an unsupported and nonspecific argument that his back condition was caused or related to service.  See Veteran's January 2010 claim ("Back/Arthritis Spasms").  The Board finds the lay statements insufficient to invoke VA's duty to obtain a VA opinion in this substitution appeal.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (indicating that VA's duty to obtain an examination/opinion is implicated 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 manifested 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 VA to make a decision on the claim). The Board is cognizant that lay evidence may satisfy the third element set forth in McLendon and that this element has a low threshold; however, precedential case law recognizes that it may not be possible to establish a nexus where the lay evidence is too general and conclusory to satisfy the statutory standard.  Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed.Cir.2010). 

Simply put, without more, the Veteran's general and conclusory allegations that his military service caused or is the result of either his lower extremity condition or low back condition are insufficient even under the low threshold of McLendon to require the obtainment of a VA etiological opinion.
 
As the preponderance of the evidence weighs against the claim, service connection for a disability of the a peripheral neuropathy condition and low back condition are denied.  See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
ORDER

Service connection for a lower leg condition, to include peripheral neuropathy, is denied. 

Service connection for a low back disability is denied. 


REMAND

Additional development is required prior to adjudication of the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, skin lesions, stroke residuals, and hypertension.

I.  Skin Lesions

VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim.  38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  In this instance, the medical evidence of record reflects that the Veteran was diagnosed with neoplasm, basal cell carcinoma, and squamous cell carcinoma.  The Veteran asserted and the Appellant now maintains that his skin lesions arose during service as a result herbicide exposure in Vietnam.  In light of the medical evidence of record, the skin cancer diagnosis after his separation from military service, and the assertion regarding a connection between his skin cancer and herbicide exposure, the Board finds that the Appellant should be afforded a VA medical opinion prior to adjudication of the claim.  See McLendon, 20 Vet. App. at 81.


II. Acquired Psychiatric Condition 

Following the December 2011 Board Remand, the Veteran was afforded a VA examination to evaluate any mental health condition and discuss whether a verified psychiatric condition was etiologically related to the Veteran's military service.  A January 2012 VA examination report documented diagnoses of dementia and panic disorder with agoraphobia.  In the report, the examiner remarked that the Veteran was "largely unable to respond meaningfully to questions," noting that the Veteran displayed severe cognitive impairment.  But, the examiner failed to offer any etiological opinion as to the Veteran's diagnosed psychiatric conditions.  Instead, the VA examiner dismissed the Veteran's purported written reports and merely stated that treatment records documented a history of panic disorder with agoraphobia.  As the VA examiner did not offer an etiological opinion as to the Veteran's claimed condition, an addendum medical opinion must be obtained prior to adjudication of the claim.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 

III. Intertwined Claims

In the October 2017 Informal Hearing Presentation, the Appellant's representative stated that the Appellant's claims for service connection for stroke residuals and hypertension were also claimed as secondary to the Veteran's acquired psychiatric disability claim.  As the Board is remanding the Veteran's acquired psychiatric disability claim for a supplemental medical opinion, a decision on the stroke residuals and hypertension claims would be premature at this point.  Where a pending claim is inextricably intertwined with a claim currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

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. Submit the Appellant's claims file to a qualified medical professional to determine the nature and etiology of the Veteran's skin condition.  The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.  Following review of the claims file, the examiner should respond to the following:

(a) Please identify all skin condition diagnoses of record during the claim period. 
      
In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection.  Please note that although the Veteran may not meet the criteria for a diagnosis at the time of his passing, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis.  Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion.

(b) For each diagnosed skin condition, is it at least as likely as not (50 percent probability or more) that the skin condition had its onset in service, is related to herbicide exposure, or is otherwise related to service?  Please explain why or why not.
In rendering the requested opinions, please specifically discuss the significance of: (1) May 1957 service treatment records documenting a diagnosis of palmar abscess; (2) April 1962 service treatment records documenting a diagnosis of palmar abscess; (3) February 2010 VA treatment records documenting complaints of skin lesions on the left temple and right parietal; (4) November 2011 VA treatment records documenting an impression basal cell carcinoma, squamous cell carcinoma, and neoplasm; (5) In-service exposure to herbicides.  

A complete rationale for the opinion rendered must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so.

2. Submit the Appellant's claims file to a psychologist or psychiatrist to determine the nature and etiology of any psychiatric disorders.  The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.  Following review of the claims file, the examiner should respond to the following:

(a) Please identify all psychiatric diagnoses of record during the claim period. 
      
In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection.  Please note that although the Veteran may not meet the criteria for a diagnosis at the time of his passing, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis.  Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion.

The examiner should endeavor to differentiate symptoms and impairments due to any diagnosed psychiatric disorder.  If the examiner cannot differentiate symptoms and impairments, the examiner should state so and provide reasons why such differentiation cannot be made.

(b) For each diagnosed acquired psychiatric disorder, is it at least as likely as not (50 percent probability or more) that the disorder had its onset in service, is related to the Veteran's reported in-service stressors, or is otherwise related to service?  Please explain why or why not.

(c) If the criteria for a diagnosis of PTSD are met, please specify the stressor(s) supporting the diagnosis.  
      
In rendering the requested opinions, please specifically discuss the significance of: (1) January 2010 VA treatment records that recorded a diagnosis of depression, agoraphobia, panic attacks, and anxiety; (2) May 2010VA examination report that documented diagnoses of a panic disorder with agoraphobia and anxiety disorder; (3) May 2010 VA examination report that noted symptoms of a sleep impairment; and (4) January 2013 VA examination report that documented a diagnosis of panic disorder with agoraphobia. 

A complete rationale for the opinion rendered must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so.

3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal, to include service connection for stroke residuals and hypertension.  If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Appellant and her representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

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).



______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs