Citation Nr: 19122014 Decision Date: 03/26/19 Archive Date: 03/23/19 DOCKET NO. 17-61 815 DATE: March 26, 2019 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a skin disorder is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), anxiety, and depression is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a prostate disorder is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for left upper extremity peripheral neuropathy is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for right upper extremity peripheral neuropathy is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for left lower extremity peripheral neuropathy is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for right lower extremity peripheral neuropathy is reopened; to this extent only, the appeal is granted. Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for a prostate disorder is denied REMANDED Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), anxiety, and depression is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right hand peripheral neuropathy is remanded. Entitlement to service connection for left hand peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for a skin condition, service connection for PTSD, service connection for depression, service connection for anxiety, service connection for left upper extremity peripheral neuropathy, service connection for right upper extremity peripheral neuropathy, service connection for left lower extremity peripheral neuropathy, service connection for right lower extremity peripheral neuropathy, service connection for left hand peripheral neuropathy, and service connection for right hand peripheral neuropathy were denied in a September 2009 rating decision in part on the basis that the conditions were not related to service. 2. Service connection for a prostate condition was denied in the September 2009 rating decision in part on the basis that the Veteran did not have a current diagnosis. 3. The Veteran did not file a notice of disagreement for the September 2009 rating decision, and that decision became final. 4. The Veteran filed a new claim in June 2016 for entitlement to service connection for a skin condition, entitlement to service connection for PTSD, entitlement to service connection for depression, entitlement to service connection for anxiety, entitlement to service connection for a prostate condition, entitlement to service connection for left upper extremity peripheral neuropathy, entitlement to service connection for right upper extremity peripheral neuropathy, entitlement to service connection for left lower extremity peripheral neuropathy, entitlement to service connection for right lower extremity peripheral neuropathy, entitlement to service connection for left hand peripheral neuropathy, and entitlement to service connection for right hand peripheral neuropathy 5. The Veteran does not have a current skin disability. 6. The Veteran does not have a current prostate disability. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran’s claim for service connection for a skin disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received, and the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence has been received, and the Veteran’s claim for service connection for a prostate disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. New and material evidence has been received, and the Veteran’s claim for service connection for left upper extremity peripheral neuropathy is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. New and material evidence has been received, and the Veteran’s claim for service connection for right upper extremity peripheral neuropathy is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. New and material evidence has been received, and the Veteran’s claim for service connection for left lower extremity peripheral neuropathy is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. New and material evidence has been received, and the Veteran’s claim for service connection for right lower extremity peripheral neuropathy is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 8. The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 9. The criteria for service connection for a prostate disorder are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1967 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that the issue on appeal was characterized as entitlement to service connection for PTSD, entitlement to service connection for depression, and entitlement to service connection for anxiety. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). New and Material Evidence Service connection for a skin condition, service connection for PTSD, service connection for depression, service connection for anxiety, service connection for left upper extremity peripheral neuropathy, service connection for right upper extremity peripheral neuropathy, service connection for left lower extremity peripheral neuropathy, service connection for right lower extremity peripheral neuropathy, service connection for left hand peripheral neuropathy, and service connection for right hand peripheral neuropathy were initially denied in a September 2009 rating decision. The RO found that there was no basis in the record to establish that the conditions were related to service. Service connection for a prostate condition was also initially denied in the September 2009 rating decision. The RO found that the VA examination did not show a current diagnosis of prostate cancer; rather, the Veteran’s prostate was normal with no malignancy activity. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the September 2009 rating decision includes a private treatment record from Dr. C. M., and various VA treatment records and social security records. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of current disabilities with connections to service; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claims is appropriate. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Skin Disorder Entitlement to service connection for a skin condition must be denied. The Veteran received a VA examination in May 2017, and the examiner indicated that the Veteran did not have a current skin disorder. She also considered the Veteran’s history and noted that the claims folder and electronic medical record was silent for a diagnosis and therapy of a skin condition. The Board finds the May 2017 VA examination highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for a skin condition must be denied. Prostate Disorder Entitlement to service connection for a prostate condition must be denied. The Veteran received a VA examination in July 2009, and the examiner noted that he was a normal male with a normal prostate. The Veteran received a VA examination in March 2017, and the examiner indicated that the Veteran did not have a diagnosis of prostate cancer. She also considered the Veteran’s history and noted that the claims folder and electronic medical record was silent for a diagnosis and therapy of prostate cancer. The Board finds the July 2009 and March 2017 VA examinations highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for a prostate disorder must be denied. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Veteran received a VA examination in March 2017, and the examiner noted a diagnosis of an unspecified depressive disorder. He opined that the condition was not related to service, as the Veteran’s service treatment records were silent for behavioral health referrals, personal requests, findings, diagnoses, or treatment for any type of a mental health disorder. As the Veteran did not seek mental health treatment until 2006, it was less likely than not that the condition was related to his military service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. 2. Bilateral Upper Extremity Peripheral Neuropathy, Bilateral Lower Extremity Peripheral Neuropathy, Bilateral Hand Peripheral Neuropathy. As the Veteran’s medical records establish persistent symptoms of bilateral upper and lower peripheral neuropathy and bilateral hand peripheral neuropathy, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of these disabilities. 3. TDIU With respect to the Veteran’s assertion that he is unable to work due to his claimed service-connected disabilities, the Board concludes that further development and adjudication of the Veteran’s claims for service connection for a respiratory condition may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran’s lay statements and VA treatment records. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not that disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events may be considered for the purpose of determining whether exposure to an actual in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should address whether it is at least as likely as not (i.e. probability of 50 percent or more) that PTSD is due to exposure to an actual confirmed stressor or fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any peripheral neuropathy of the bilateral upper extremities, lower extremities, and hands. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any diagnosed peripheral neuropathy of the bilateral upper extremities, lower extremities, and hands had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel