Citation Nr: 20032405 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 20-12 134 DATE: May 7, 2020 ORDER The application to reopen the claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied. Service connection for recurrent fungal infections of the ears and feet is denied. Service connection for arthritis of the hands and back is denied. REMANDED Entitlement to service connection for gastrointestinal disorder, claimed as peptic ulcer disease, is remanded. FINDINGS OF FACT 1. A February 2010 rating decision initially denied all the claims on appeal; new and material evidence was received within a year of the rating decision. As such, it did not become final. 2. An October 2014 rating decision denied entitlement to service connection for peripheral neuropathy of the upper and lower extremities. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 3. The evidence received since October 2014 rating decision does not relate to unestablished facts necessary to substantiate the claim for service connection for peripheral neuropathy, and does not raise a reasonable possibility of substantiating the claim. 4. The Veteran does not have a currently diagnosed recurrent fungal infection disability of the ears and feet during the appeal period and the associated symptoms do not amount to a functional impairment of earning capacity. 5. Cold residuals are not currently shown. 6. The Veteran’s diagnosed arthritis was not chronic in service, did not manifest to a compensable degree within one year of service separation, symptoms were not continuous since service separation, and the Veteran’s arthritis has not been found to be etiologically related to service. CONCLUSIONS OF LAW 1. The October 2014 rating decision that denied the claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for peripheral neuropathy of the bilateral upper and lower extremities has not been received. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2019). 3. The criteria to establish service connection for recurrent fungal infections of the ears and feet are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2019). 4. The criteria to establish service connection for arthritis of the hands and back are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 3.307(a)(3), 3.309(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1949 to December 1952. This case comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2010 and January 2019 rating decisions issued by the Department of Veterans Affairs (VA) RO. New and Material-Laws and Analysis Arthritis, Fungal Infections, and Peptic Ulcer Claims Initially, the Board notes that a February 2010 rating decision denied all the claims on appeal, to include arthritis, fungal infections, and peptic ulcer disease. All the issues on appeal were previously characterized by the RO as claims to reopen. However, the Board notes that additional pertinent evidence was received by the RO in August 2010 (within one year after the February 2010 initial rating decision). Specifically, the Veteran submitted lay evidence discussing his cold injuries in service. Thus, the February 2010 rating decision did not become final. 38 C.F.R. § 3.156 (b). As such, the Board need not consider whether new and material evidence was received to reopen the arthritis, fungal infections, and peptic ulcer disease issues in the instant matter. As it pertains to the peripheral neuropathy claim (upper and lower extremities), this issue was also initially denied in the February 2010 rating decision. However, the RO readjudicated the claim in an October 2014 rating decision. The RO denied the claim as it found that the Veteran’s peripheral neuropathy was not related to service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the October 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that additional evidence received since the October 2014 rating decision is not new and material as it pertains to the Veteran’s peripheral neuropathy claim. In this regard, the evidence received since the October 2014 rating decision does not include any VA or private medical records. Further, the Veteran’s lay statements received following the October 2014 rating decision do not provide any new evidence that relates to the etiology of his peripheral neuropathy. His assertions that his disabilities are related to cold weather injuries while stationed in Korea (see e. g., January 2020 NOD) are not new as these contentions were previously considered by the RO. The remaining evidence of record since the October 2014 rating decision fails to show a relationship between the Veteran’s peripheral neuropathy and service. For these reasons, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities. The appeal is denied. Service Connection Laws and Regulations 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). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2019) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Fungal Infections The Veteran generally maintains that he has recurrent fungal infections of the ears and feet due to cold injuries sustained in service. See e. g., December 2018 claim for VA compensation benefits. With respect to element (1), a current disability, the evidence of record does not establish that the Veteran has a recurrent fungal infection disability. VA and private treatment records reflect a diagnosis of basal cell carcinoma, a type of skin cancer, but no indication of fungal infections. The Veteran was afforded a VA cold injuries examination in August 2014. At that time, no diagnosis was provided regarding a skin disorder, to include recurrent fungal infections. During the interview, the Veteran did not report or describe any fungal infections of the ears or feet. Private treatment records from Dr. Zhu include a list of the Veteran’s “past medical history,” but do not include any indication fungal infections or recurring infections of the skin. While the Board has considered his assertions, the Veteran is not competent to diagnose a specific fungal infection. 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). The Veteran is competent to report any skin symptoms that come to him through the senses; however, as a lay person, he lacks the requisite medical expertise and medical training to attribute any symptoms he experiences to a diagnosed disability other than a simple medical condition capable of lay diagnosis. A competent medical diagnosis involves making findings based on history, complaints and symptoms, signs, medical knowledge, and, in some cases, clinical testing results (e. g., skin biopsy). Although the Veteran has alleged that he has recurrent fungal infections, he is not competent to diagnose such disorder. The Board does acknowledge that the Veteran is competent to report skin problems and that such symptoms may be considered a disability only if they cause functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). In the present case, however, the weight of the evidence does not show that the Veteran’s claimed fungal infections have resulted in functional impairment in earning capacity. The Veteran has not claimed, and the medical evidence does not otherwise show, that the Veteran experiences any functional impairment due to his claimed fungal infections. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for recurrent fungal infections of the ears and feet. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for service connection, that doctrine is not helpful to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Arthritis The Veteran generally contends that he has arthritis of the hands and back that are related to cold weather injuries sustained while stationed in Korea. Private treatment records from Dr. Zhu confirm a diagnosis of degenerative joint disease of the lumbar spine. An August 2014 VA examination report also diagnosed the Veteran with arthralgia. However, service treatment records are absent for any complaints, diagnoses, or treatment for arthritis of any joint. At service separation in 1952, a clinical evaluation of the Veteran’s spine and extremities was normal, and the Veteran was not found to have any disabilities associated with arthritis. Moreover, there was no indication of any cold weather-related injuries at that time. See December 1952 Report of Medical Examination. Following service separation, the Veteran was first noted to have a thoracic spine disorder in 2007. See May 2007 MRI imaging report (showing bulging disc at T2-T3). In a May 2009 statement from Dr. Cottingham, the Veteran was noted to have degenerative joint disease of multiple joints, including the spine. None of these records suggest any residuals from cold weather injuries. These records do not show a diagnosis pertaining to arthritis within a year of service separation. Instead, it appears that the Veteran’s arthritis manifested many years following active duty service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Veteran was afforded a VA cold weather injury residuals examination in August 2014. At that time, the Veteran reported that, while serving in Korea, he was called upon to unload supplies from an airplane. The temperature was reported by the Veteran as being “extremely cold.” He indicated that after the incident, his hands were swollen, numb, and red. He denied seeking medical care and reported that his symptoms resolved. The Veteran denied any cold intolerance to the hands since the injury. The examiner then opined that the Veteran did not have any cold injury residuals. Upon examination, there was no evidence of any injuries due to cold exposure. Moreover, the examiner opined that the Veteran’s peripheral neuropathy was due to diabetes. The examiner referenced a letter dated in December 2009 from the Veteran’s treating physician, Dr. Cottingham, where it was noted that the Veteran’s peripheral neuropathy was due to his “long-standing difficult-to-control type 2 diabetes mellitus.” The August 2014 VA examiner further indicated that the Veteran’s arthralgia was due to age (Veteran was 79 at the time of examination). The Board finds the August 2014 VA examiner’s opinion to be well-reasoned and thorough, having considered the entire record, including service treatment records, the Veteran’s historical accounts, and relevant private treatment records. This opinion therefore warrants significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that “most of the probative value of a medical opinion comes from its reasoning” and that “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions”). In deciding this claim, the Board also considered the Veteran’s statements asserting a nexus between his arthritis and his exposure to cold weather while in service. Although the Board does not dispute the Veteran’s exposure to cold weather while stationed in Korea, the evidence does not show that he has residuals from such exposure. The current medical evidence of record, to include from the Veteran’s own treating physicians, does not suggest that the Veteran’s arthritis is a residual of a cold weather injury. Further, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of arthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Orthopedic disorders, to include arthritis, are complex disorders because of their multiple possible etiologies (such as age), require specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for arthritis of the hands and back. Therefore, the claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. Camp Lejeune Considerations In an August 2010 statement, the Veteran reported that he was stationed at Camp Lejeune in 1950 and was later sent to Camp Pendleton before being deployed to Korea. The Board notes that there is a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune during the period from August 1, 1953 through December 31, 1987. In order to qualify for presumptive service connection, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309 (f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the pertinent time period. 38 C.F.R. §§ 3.307, 3.309. The Board finds that the Veteran’s claimed disorders currently on appeal are not presumptive diseases based upon his exposure to contaminated water at Camp Lejeune. Moreover, the Veteran did not serve at Camp Lejeune during the presumptive time period (i.e., from August 1, 1953 through December 31, 1987). As such, presumptive service connection for the Veteran’s disorders is not warranted. Nevertheless, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). In this case, however, the Veteran has not asserted that his disorders are related to exposure to contaminants present in the water supply at Camp Lejeune. Instead, the Veteran has consistently maintained that his disorders are residuals of cold weather injuries while stationed in Korea. Accordingly, further development, to include VA examinations, are not required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). REASONS FOR REMAND Gastrointestinal Disorder, Claimed as Peptic Ulcer Disease The Veteran maintains that his peptic ulcer disease is a residual disability associated with his claimed cold weather injuries during service. Initially, the Board finds that the Veteran has a past medical history of peptic ulcer disease and GERD. See medical records from Dr. Zhu. Service treatment records dated in August 1951 show that the Veteran complained of epigastric pain for the past 2 weeks that was dull but growing. It was noted that the Veteran’s symptoms were not affected by food. There was no history of ulcers, but the Veteran reported having loose, watery stools for the past 3 days. The diagnosis at that time was gastroenteritis, acute, cause unknown. In an August 1952 service treatment record, the Veteran was admitted for symptoms associated with redundant prepuce and circumcision. During the evaluation, it was noted that the Veteran had a previous episode of diarrhea associated with small amounts of blood in the stool while stationed in Korea. He had upper abdominal epigastric soreness which did not respond to the antispasmodics, Amphojel or change in diet. The Veteran was noted to have lost about 20 pounds. In a separate August 1952 service treatment record, the Veteran’s circumcision was noted to have been performed. At that time, the Veteran continued to complain of upper gastric pain, but a GI series was obtained and was negative. The Veteran has not been afforded a VA examination and/or medical opinion regarding his claimed gastrointestinal disorder. As such, a remand is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA gastrointestinal examination, if possible. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. **IF an in-person examination is not feasible given the circumstances surrounding the recent COVID-19 pandemic, refer the case to an appropriate VA examiner for a thorough review of the record and medical opinion. The Veteran may be contacted via telephone to conduct an interview, if deemed appropriate. The examiner should address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that any diagnosed gastrointestinal disorder was incurred in service or is otherwise related to service. **The examiner should note that the Veteran’s private treatment records show a past medical history of peptic ulcer disease and GERD. **The examiner should specifically address the August 1951 and August 1952 service treatment records showing impression of gastroenteritis and subsequent GI complaints. (b.) The examiner must provide a complete rationale for any opinions expressed. 2. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.