Citation Nr: 1824696 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 16-46 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied service connection claim for acquired psychiatric disability. 2. Whether new and material evidence has been received to reopen the previously denied service connection claim for diabetes mellitus, type II (diabetes). 3. Whether new and material evidence has been received to reopen the previously denied service connection claim for skin disability. 4. Whether new and material evidence has been received to reopen the previously denied service connection claim for bilateral foot disability. 5. Entitlement to service connection for bilateral leg disability. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION 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 Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In an October 2016 statement, the Veteran revoked prior authorization for an attorney he appointed to represent him in an August 2014 VA Form 21-22a. He is currently without representation. In the decision below, the Board will grant the claims to reopen service connection for diabetes and psychiatric and skin disabilities. The underlying service connection claims, along with the claim to reopen service connection for bilateral foot disability and the service connection claim for bilateral leg disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a February 2012 rating decision the Veteran did not appeal, the AOJ denied claims to reopen service connection for diabetes, skin, and psychiatric disabilities. 2. Evidence received since the February 2012 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for diabetes, skin, and psychiatric disabilities. CONCLUSIONS OF LAW 1. The February 2012 rating decision denying claims to reopen service connection for diabetes, skin, and psychiatric disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for diabetes, skin, and psychiatric disabilities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Since September 1982, the Veteran has claimed service connection for acquired psychiatric disability (posttraumatic stress disorder (PTSD)) and skin disability. Since September 2001, he has claimed service connection for diabetes. In multiple prior final Board decisions and AOJ rating decisions, these claims, and claims to reopen these claims, have been denied. Most recently, claims to reopen these claims were denied in a February 2012 rating decision the Veteran did not appeal. As the Veteran did not appeal the decision, the decision became a final decision. 38 C.F.R. § 20.1103. In August 2012, the Veteran filed a claim to reopen these service connection claims. In the August 2013 rating decision on appeal, the AOJ denied the claims. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). In the February 2012 final rating decision, the AOJ considered service treatment records (STRs) indicating skin disability during service and STRs indicating no diabetes or psychiatric problems during service. The AOJ considered the Veteran's lay assertions regarding the ways in which he claims to have incurred the disorders during service, and considered supportive lay statements from the Veteran's wife, mother, father, brother and fellow service member. The AOJ also considered post-service medical evidence indicating diagnosis of and treatment for diabetes, skin, and psychiatric disability. Based on this evidence, the AOJ denied the Veteran's claims to reopen. As noted earlier, the Veteran's claims to reopen service connection were filed in August 2012. The evidence included in the record since the prior final decision consists of VA treatment records noting continued treatment for his disorders, a July 2013 lay statement from the Veteran's fellow service member in which he reiterates that he witnessed the Veteran's leg and foot skin problems during service, an August 2013 VA examination report which finds diabetes related to herbicide exposure during service, an August 2013 VA examination report addressing psychiatric disability which indicates that the Veteran did not have PTSD, but which nevertheless finds that memories from service aggravate current anxiety and depression disorders, an August 2016 VA examination report which indicates that the Veteran does not have a current skin disorder, an April 2016 statement from the Veteran's treating VA psychiatrist relating PTSD to an in-service stressor, and additional lay assertions from the Veteran regarding the nature of his service in Asia and the conditions there which allegedly caused his current disabilities. The evidence included in the record since the final decision in February 2012 is new, and certain of that evidence is material as well. In particular, the August 2013 VA compensation examination reports addressing the Veteran's claims provide material evidence which was not of record when his claims were denied in February 2012. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Indeed, there is a low threshold for determining whether evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Assuming for the purpose of this analysis the probative value of the new evidence, the evidence tends to prove previously unestablished facts (i.e., current disorders that may relate to the Veteran's experiences during service). Accordingly, the claims of entitlement to service connection for diabetes, skin, and psychiatric disabilities are reopened. The issues will be addressed further in the remand section of the decision below. ORDER New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for acquired psychiatric disability is granted. The appeal is granted to that extent only. New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for diabetes is granted. The appeal is granted to that extent only. New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for skin disability is granted. The appeal is granted to that extent only. REMAND A remand is warranted for additional development into the reopened service connection claims, and for issuance of a Statement of the Case (SOC) for the claims regarding bilateral foot and leg disabilities. Psychiatric Disability The record documents that the Veteran served in Korea as a fuel system repairman from November 1966 to December 1967. The Veteran's STRs do not indicate any complaints, diagnoses, or treatment for psychiatric issues during service. In the March 1968 discharge report of medical examination, a physician found the Veteran's psychiatric state to be normal. In the March 1968 discharge report of medical history, the Veteran indicated no prior psychiatric troubles. And in a May 1968 report, the Veteran indicated that he had not experienced any changes in his health since the March 1968 discharge examination. The Veteran's original service connection claim for psychiatric disability was filed in September 1982, over 14 years after discharge from service. According to a December 1982 VA compensation examination report, the Veteran attributed his psychiatric disability to service in Korea, but did not indicate any service in Vietnam, any combat service, and did not describe any "traumatic experience." The Veteran indicated that he had been "tense" since leaving the military and that he had commenced psychiatric treatment earlier in 1982. The examiner found that the Veteran did not have PTSD. Since October 2010, the Veteran has offered multiple stressor statements describing the circumstances during service which he believes led to his PTSD. He asserts that he experienced combat-like conditions in Vietnam and Korea that led to psychiatric disability such as PTSD, claiming that he was exposed to gunfire and hand grenade explosions. In a statement received in February 2016, he indicated that while in Korea he was "hit in the neck while on patrol for which I still have steel [pellets] come out from time to time." In March 2016 hearing testimony before the AOJ, he indicated that he experienced combat in Korea involving grenades and gunfire. He has also claimed that loud explosions during basic training led to PTSD, and that witnessing injured soldiers returning from Vietnam caused him to develop PTSD. There is no supporting documentation in the claims file indicating that the Veteran engaged in combat. Nevertheless, the Veteran has been diagnosed with PTSD since 2010 by his treating VA primary care physician, and by his treating VA psychiatrist. In a February 2016 report (received in April 2016), apparently from the treating VA psychiatrist, it is indicated that in-service stressors caused the PTSD. This report does not specify which alleged stressor caused PTSD, however. A remand for an addendum opinion from the treating VA psychiatrist is therefore necessary. According to an August 2013 VA compensation examination report (psychiatric), the Veteran did not have PTSD, but did have anxiety and major depressive disorders. The examiner found these disorders likely unrelated to service. But, the examiner also stated that the Veteran's "continued dwelling" on his claimed in-service stressors "does aggravate these disorders beyond their natural progression." A remand is necessary to clarify this particular opinion as well. Diabetes An August 2013 VA compensation examination report addressing this particular claim found the Veteran's diabetes as likely as not related to active service. The examiner based the opinion on the Veteran's assertion that he was exposed to herbicides during service. Inasmuch as no evidence of record thus far corroborates the Veteran's assertion regarding herbicides exposure, the medical opinion is, at this juncture, of limited probative value. The Veteran's STRs are negative for diabetes as are the March 1968 discharge reports of medical examination and history. Private medical evidence details an initial diagnosis of diabetes in September 1999. The Veteran filed his original claim to service connection for diabetes in September 2001. He has consistently asserted that he developed diabetes because he was exposed to herbicides in Korea as the result of spraying chemicals and serving near the Demilitarized Zone (DMZ). More recently he has claimed that he served in Vietnam and was thereby exposed to herbicides. See 38 C.F.R. §§ 3.307, 3.309 (e) (2017). In a January 2006 statement, he claimed three months of service in Danang for the purpose of transporting guns. In an August 2012 statement he claimed service in Cam Ranh Bay. In an August 2013 VA examination report addressing diabetes, he is reported to have stated that "he personally 'sprayed Agent Orange 1 hour/day everyday for 6 months' during his days in Vietnam about 1967." In a September 2014 statement, the Veteran stated he was "TDY in Vietnam to haul in guns[.]" In a statement received in February 2016, he stated that the served in "Nam and Korea." In a January 2018 statement, he again claimed service in Vietnam for the purpose of transporting guns. And in multiple statements received since 2013, the Veteran has claimed that he traveled on military transport planes that carried herbicides. There is no supporting documentation in the claims file indicating service in Vietnam. Rather, the record supports the Veteran's statement reported in the September 1982 VA examination report, and in multiple contradictory statements since then, that he served in Korea but not in Vietnam. The law provides that a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). Given the timeframe during which the Veteran was stationed in Korea - from November 1966 to December 1967 - an exposure to herbicides cannot be presumed, irrespective of whether he served at or near the DMZ. Nevertheless, the VA Adjudication Procedure Manual provides that if the Veteran served during a period that was not between April 1, 1968 and August 31, 1971, a request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides on a factual, case-by-case basis. See VA Adjudication Procedures Manual, M21-1, Part IV.ii.1.H.4.a-c. These procedures should be followed based on the evidence of record showing that the Veteran served in Korea for 13 months as a fuel system repairman with Company C of the 335th Maintenance Battalion. Furthermore, even if herbicide exposure is not documented, and diabetes cannot be presumed related to service, a VA examiner should revisit the August 2013 VA opinion (which connected service and diabetes) and comment on the issue of direct service connection under 38 C.F.R. § 3.303. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996). Evidentiary development is not necessary regarding the Veteran's claim that he was exposed to herbicides on board military transport planes while traveling to Southeast Asia. Herbicide exposure is presumed for service members who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray herbicides during the Vietnam Era. See 38 C.F.R. § 3.307 (a)(6)(v) (2017); VA Adjudication Manual, M21-1, Part IV.ii.1.H.3. No evidence indicates that the Veteran regularly and repeatedly served onboard a C-123. He claims to have traveled on a transport plane (variously stating C-5 or C-130), but the evidence does not indicate a frequent exposure to such planes. Skin Disorder Although the March 1968 discharge reports of medical examination and history are negative for skin problems, the evidence indicates that the Veteran experienced lower extremity skin rashes during service. The STRs document treatment during service for rashes on the feet. August and September 1967 letters from Korea from the Veteran to his wife corroborate the Veteran's claims that he experienced leg and foot rashes while in Korea. These letters note complaints of lower extremity rashes and indicate medical treatment for them. Further, in multiple AOJ hearings conducted in the years since the September 1982 original service connection claim for skin disability, the Veteran's wife, mother, father, and brother have testified that they witnessed the Veteran's skin problems during service when the Veteran visited home from Korea to attend a grandfather's funeral. The existence of a skin problem during service is also corroborated by lay statements of record from a fellow service member, who described the Veteran's leg and foot rash during service. The Veteran maintains that, soon after service discharge, he received VA and private medical treatment for skin problems. His claims are corroborated by the statements of record from his wife, father, mother, and brother, all of whom attest to post-service skin problems. However, there are no VA or private medical records documenting medical treatment for skin disability in the years following discharge from service in 1968. The earliest post-service medical evidence noting treatment for skin disability is dated in October 1977. These records note treatment for "chronic generalized neurodermatitis with excoriations." The Board also notes VA treatment records dated in 1975 addressing treatment of hepatitis and the loss of hair from hepatitis. The Veteran claimed service connection for skin disability in September 1982, and has reasserted his claim many times since then. His claims have been denied in multiple Board and RO decisions. He underwent VA examination into his claim in August 2013. The report indicates that the Veteran did not have a skin disorder at the time of the examination. This claim must be remanded as well because it is inextricably intertwined with the service connection claim for psychiatric disability. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). Further, the Veteran should be provided with an additional VA examination. Manlincon Issues With regard to the claim to reopen service connection for a bilateral foot disability and the claim of service connection for bilateral leg disability, a remand is necessary for issuance of a SOC. In August 2014, the Veteran filed a notice of disagreement (NOD) against the August 2013 rating decision on appeal. The NOD disagreed with the decision regarding service connection for bilateral foot and leg disabilities as well as the claims to reopen service connection noted earlier. The July 2016 SOC did not address the claim to reopen service connection for bilateral foot disability or the claim of entitlement to service connection for bilateral leg disability. Importantly, these two particular claims were developed in part as claims regarding pes planus and knee disabilities (in addition to skin disorders on the feet and legs). As such, a SOC must be issued to the Veteran for these two issues. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 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. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. Include in the record any outstanding VA treatment records, the most recent of which are dated in May 2013. All records/responses received must be associated with the electronic claims file. 2. Attempt to obtain reserve records pertaining to the Veteran. In particular, inquire into his January 2006 statement that he served as a reservist in the "Louisiana Ready Reserve" between 1969 and 1970. All records/responses received must be associated with the electronic claims file. 3. Contact the JSRRC for formal inquiry into the Veteran's alleged exposure to herbicides while stationed in Korea at any time from November 1966 to December 1967 with Company C of the 335th Maintenance Battalion. In particular, review the Veteran's December 2001 statement of record which details his claimed herbicide exposure in Korea. All records/responses received must be associated with the electronic claims file. 4. Contact the Veteran's treating VA psychiatrist (H.R., MD) regarding the February 2016 "Medical Statement" which purports to connect an in-service stressor to PTSD. Request that the physician review and verify the statement's contents, and then provide an addendum report specifying which exact stressor led to the Veteran's current PTSD. All records/responses received must be associated with the electronic claims file. 5. Schedule the Veteran for an examination to determine the nature and etiology of any non-PTSD psychiatric disability (to include the anxiety disorder and major depressive disorder diagnosed in August 2013) diagnosed during the appeal period (i.e., since the August 2012 claim to reopen service connection for psychiatric disability). The examiner should review the claims folder, and then respond to the following questions. (a). What non-PTSD psychiatric disorders has the Veteran had since August 2012? (b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that a non-PTSD psychiatric disorder is related to a disease, event, or injury during service? In answering this question, address the Veteran's lay assertions that loud noises during training and witnessing injured soldiers returning from Vietnam caused him to develop a psychiatric disorder. Also note that the Veteran served in Korea from November 1966 to December 1967, but that no evidence of record supports his claim that the experienced combat there. All opinions must be fully explained and supported by a rationale. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. If the development requested earlier yields no evidence corroborating the Veteran's claim to having been exposed to herbicides in Korea, schedule him for an examination to determine the nature and etiology of his diabetes. The examiner should review the claims folder, and then respond to the following question. Is it at least as likely as not (i.e., probability of 50 percent or greater) that diabetes is related to a disease, event, or injury during service even though the record indicates no exposure to herbicides during service? All opinions must be fully explained and supported by a rationale. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. Schedule the Veteran for an examination to determine the nature and etiology of a skin disability. The examiner should review the claims folder, and then respond to the following questions. (a). What skin disorders has the Veteran had since August 2012? In answering this question consider and discuss the Veteran's extensive post-service history of skin problems dating back to at least 1977, and indicate whether he has a chronic skin disability irrespective of any active symptoms you might find. (b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that skin disability is related to a disease, event, or injury during service? In answering this question, consider and discuss the evidence indicating skin problems during service, to include STRs, August and September 1967 letters from the Veteran to his wife, and lay statements from the Veteran and his wife, mother, father, brother, and friend. Also consider and discuss the Veteran's long history of documented skin problems dating from October 1977, and perhaps even earlier based on lay statements of record from the Veteran and his wife, mother, father, and brother, all of whom indicate chronic skin problems in the years following service discharge in 1968. Also consider and address the Veteran's lay assertions in an October 1995 RO hearing that his spraying of bug spray in Korea led to skin problems, and his February 2016 assertion that walking in rice paddies caused his lower extremity skin problems. (c). If the answer to (b) is negative, and a psychiatric disability is ultimately found service connected, is it at least as likely as not that skin disability is due to or caused by service-connected psychiatric disability? In answering this question, consider and discuss evidence dated from 1977 indicating that the Veteran had "chronic neurodermatitis." (d). If the responses to (b) and (c) are negative, and psychiatric disability is ultimately found service connected, is it at least as likely as not that skin disability has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). All opinions must be fully explained and supported by a rationale. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 8. After the completion of any action deemed appropriate in addition to that requested above, the claims should be readjudicated. All evidence received since the July 2016 SOC should be considered. If any benefit sought remains denied, the Veteran and his representative should be provided a Supplemental SOC. 9. Issue a SOC to the Veteran addressing the claim to reopen service connection for bilateral foot disability and the claim of entitlement to service connection for bilateral leg disability. The Veteran must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. 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). These claims 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). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs