Citation Nr: 21000395 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-28 292 DATE: January 5, 2021 ORDER New and material evidence not having been received, the appeal to reopen the claim for entitlement to service connection for ischemic heart disease is denied. Entitlement to service connection for skin cancer is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for peripheral neuropathy, right upper extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for peripheral neuropathy, left upper extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for tremors, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for hypothyroidism, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for narcolepsy, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A February 2013 rating decision denied entitlement to service connection for ischemic heart disease; the Veteran did not timely appeal the denial; new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the February 2013 rating decision. 2. Evidence received since the February 2013 rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for ischemic heart disease. 3. The preponderance of the evidence of record is against finding the Veteran has had a skin cancer disability, at any time during or proximate to the pendency of the claim. 4. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The February 2013 rating decision which denied entitlement to service connection for ischemic heart disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence not having been received; the claim for entitlement to service connection for ischemic heart disease is not reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The criteria for entitlement to service connection for skin cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of September 2014 and September 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran attended a video conference hearing before the undersigned Veteran’s Law Judge. In an October 2019 letter, the RO informed the Veteran and his representative that a complete transcript of the hearing was not able to be produced due to audio malfunctions. The letter offered the Veteran an opportunity to testify at another hearing. In an October 2019 correspondence, the Veteran’s representative reported that the Veteran did not desire a second hearing. As such, the Board will consider the case on the evidence of record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for ischemic heart disease The Veteran contends that new and material evidence has been received to reopen the claim for entitlement to service connection for ischemic heart disease. New evidence means existing evidence not previously submitted to VA. 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 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). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Entitlement to service connection for ischemic heart disease was denied by the RO in a February 2013 rating decision. Notice of that decision was provided to the Veteran in February 2013. The Veteran did not timely appeal the February 2013 rating decision or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the February 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The February 2013 rating decision denied service connection for ischemic heart disease because there was no evidence of a currently diagnosed disability. Pertinent evidence received since the February 2013 rating decision consists of VA treatment records, private treatment records, and lay statements. While the medical records demonstrate that the Veteran complained of symptoms related to his heart, they do not reflect a diagnosis of ischemic heart disease. In that regard, the Board acknowledges the Veteran’s lay statements that he currently has a heart disability. The Board acknowledges the Veteran’s assertions that he has ischemic heart disease. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), the diagnosis of a specific heart condition such as ischemic heart disease falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As none of the evidence received since the February 2013 rating decision shows a current diagnosis of ischemic heart disease, new and material evidence has not been received, and the claim for entitlement to service connection for ischemic heart disease is not reopened. Service Connection 2. Entitlement to service connection for skin cancer is denied. The Veteran seeks entitlement to service connection for skin cancer. Specifically, he contends that he has skin cancer due to exposure to herbicide agents while serving in the Republic of Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include exposure to herbicide agents. The Board concludes that the Veteran does not have a current diagnosed skin cancer disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s treatment records do not show that he has been diagnosed with skin cancer. Although the Veteran believes that he has a current disability of skin cancer and he is competent to report symptoms such as a skin irritation and rash, he is not considered competent to provide a diagnosis in this case as the issue is medically complex and it requires specialized medical education and knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board cannot give probative weight to his assertions that he has skin cancer. The Board instead attributes probative weight to the medical treatment records which do not demonstrate a current diagnosis of skin cancer. In view of the foregoing, the Board concludes that the preponderance of the evidence of record is against finding that the Veteran has had skin cancer at any time during or proximate to the pendency of the claim. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for skin cancer. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings 3. Entitlement to an increased rating for PTSD The Veteran seeks a higher rating for his service-connected PTSD. The Veteran’s service-connected PTSD is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s increased rating claim was received on December 30, 2014. Therefore, the relevant rating period is from December 31, 2013, one year prior to receipt of the claim, through the present. See, 38 C.F.R. § 3.400 (o) (2). For the one-year period prior to his increased rating claim, the Veteran’s PTSD was rated as 50 percent disabling. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD is rated as 50 percent disabling throughout the relevant period under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders (General Formula). When rating disabilities under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In relevant part, under the General Formula, a 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. The Veteran’s VA treatment records; June 2015 and March 2018 VA examinations; and the Veteran’s lay statements show that his PTSD was manifested by symptoms associated with a 50 percent rating of disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships. He also had depressed mood, anxiety, suspiciousness and chronic sleep impairment which are symptoms associated with a 30 percent rating. He additionally had symptoms that are not listed with a specific rating, such as irritable behavior, hypervigilance and exaggerated startle response. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The unlisted symptoms are similar to impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which are symptoms listed under the 50 percent rating criteria, and to suspiciousness, which is a symptom listed under the 30 percent rating criteria. In that regard, the Board notes that the June 2015 and March 2018 VA examiners considered many of the unlisted symptoms and each opined that the Veteran experienced no worse than occupational and social impairment with reduced reliability and productivity, which is consistent with the 50 percent rating criteria. The Board notes that in a June 2019 statement the Veteran reported thoughts of suicide, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the overall severity, frequency, and duration of the Veteran’s disability picture and the resultant effects do not more nearly approximate the criteria for a higher rating. In view of the foregoing, the Board finds that the criteria for a rating in excess of 50 percent for PTSD have not been met at any time during the rating period. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy, right upper extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy, left upper extremity is remanded. 3. Entitlement to service connection for peripheral neuropathy, right lower extremity is remanded. 4. Entitlement to service connection for peripheral neuropathy, left lower extremity is remanded. 5. Entitlement to service connection for tremors is remanded. 6. Entitlement to service connection for hypothyroidism is remanded. 7. Entitlement to service connection for narcolepsy is remanded. The Veteran contends that he has peripheral neuropathy, bilateral upper and lower extremities, tremors, hypothyroidism, and narcolepsy due to exposure to herbicide agents during his active service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination related to his bilateral upper and lower extremity peripheral neuropathy. Here, a November 2013 letter from a VA staff physician reflects that the Veteran has a current diagnosis of peripheral neuropathy. The physician opined that the Veteran’s peripheral neuropathy is related to his agent orange exposure during his active service. The physician did not provide a rationale for the opinion provided. However, the November 2013 letter reflects there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. As to the Veteran’s tremors, hypothyroidism and narcolepsy, a December 2012 statement by the Veteran’s primary care provider reported that the Veteran is currently diagnosed with tremors, hypothyroidism and narcolepsy. The private physician opined that the Veteran’s tremors, hypothyroidism and narcolepsy is due to exposure to agent orange during his active service. The private physician did not provide a rationale for the opinion provided. However, the December 2012 opinion reflects there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. 8. Entitlement to a TDIU In the June 2019 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he is unable to secure or follow any substantially gainful occupation due to his severe peripheral neuropathy and narcolepsy. As such, the claim for a TDIU is inextricably intertwined with the Veteran’s claims for entitlement to service connection for bilateral peripheral neuropathy and entitlement to service connection for narcolepsy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to provide an opinion regarding the nature and etiology of the Veteran’s bilateral upper and bilateral lower extremity peripheral neuropathy, tremors, hypothyroidism and narcolepsy. The claims folder must be made available to the examiner and the examiner must indicate that a review was completed. Following review of the claims folder address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s bilateral upper and bilateral lower extremity peripheral neuropathy, tremors, hypothyroidism and narcolepsy are related to active service, to include, but not limited exposure to herbicide agents? The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a non-presumptive, direct incurrence basis. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for bilateral upper and bilateral lower extremity peripheral neuropathy, tremors, hypothyroidism and narcolepsy may be granted and whether a TDIU may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.