Citation Nr: 21076350 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-13 900 DATE: December 23, 2021 ORDER New and material evidence having been received, a request to reopen a claim for service connection for lymphedema of the bilateral lower extremities is granted. Entitlement to service connection for lymphedema of the bilateral lower extremities is granted. Entitlement to service connection for a neck condition has been withdrawn and the appeal is dismissed. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for a respiratory condition is remanded. FINDINGS OF FACT 1. On August 19, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from Veteran that a withdrawal of his appeal for a neck condition was requested. 2. Entitlement to service connection for lymphedema of the bilateral lower extremities was denied in a September 2011 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence during the appeal period, and the decision became final. 3. Since the issuance of the September 2011 rating decision denying entitlement to service connection for lymphedema of the bilateral lower extremities, additional evidence has been added to the record that raises a reasonable possibility of substantiating the Veteran's claim for service connection. 4. Affording him the benefit of the doubt, the Veteran's lymphedema of the bilateral lower extremities was caused by lymphatic filariasis and the incubation period for lymphatic filariasis had its onset during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a neck condition by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The September 2011 rating decision denying entitlement to service connection for lymphedema of the bilateral lower extremities is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). 3. The criteria for entitlement to service connection for lymphedema of the bilateral lower extremities have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified before the undersigned at a hearing in Cheyenne, Wyoming. A transcript of his testimony has been associated with the claims file. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, the Veteran has withdrawn his appeal for service connection for a neck condition and, hence, there remain no allegations of errors of fact or law for appellate consideration. To that end, the Veteran orally withdrew his appeal at his August 2021 hearing, which has been reduced to writing in a written hearing transcript. The transcript of the hearing reflects that he did so explicitly, unambiguously, and with a full understanding of the consequences of such actions on his part. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). As such, the Board does not have jurisdiction to review the appeal regarding his neck condition and it is dismissed. New and Material Evidence By way of procedural background, the Veteran previously filed a claim for entitlement to service connection for lymphedema of the bilateral lower extremities in January 2011. This claim was denied in a September 2011 rating decision, which stated that his evidence did not demonstrate a link between his current disability and his military service. The Veteran did not submit a notice of disagreement or new and material evidence within one year of the decision, and that rating decision became final. He requested to reopen his claim for service connection for lymphedema in September 2015. Generally, a claim that has been denied by an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decisionmakers, and "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 of record at the time of the last 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Here, additional evidence received since the prior decision includes a private medical opinion from Dr. T.W. regarding the etiology of his lymphedema from January 2019. This evidence is new, as it was not previously of record at the time of the prior rating decision. Additionally, it is material, as it relates to an unestablished fact necessary to substantiate a claim (i.e., a causal nexus between the current disability and military service). As such, new and material evidence has been received. Accordingly, the request to reopen the claim for service connection for lymphedema is granted, and the merits of the claim will be addressed below. Service Connection The Veteran asserts that he is entitled to service connection for lymphedema. Although he has made various contentions regarding its etiology, the Board will narrowly focus on one of the raised theories of entitlement. More specifically, the Board will concentrate on his assertions that his lymphedema developed because he was bitten by insects while stationed in the Philippines, which led to a parasitic filariasis infection that damaged his lymphatic system over time. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, certain tropical diseases, such as filariasis, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service, or at a time when standard accepted treatises indicate that the incubation period commenced during such service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran has a current diagnosis of lymphedema in his bilateral lower extremities. The chief question for the Board is thus whether his lymphedema is directly or presumptively linked to his military service. In this regard, the Board takes judicial notice that lymphatic filariasis is a parasitic disease caused by microscopic, thread-like worms that live in the human lymph system. See CENTERS FOR DISEASE CONTROL & PREVENTION, Parasites Lymphatic Filariasis (Oct. 22, 2018), available at https://www.cdc.gov/parasites/lymphaticfilariasis/index.html (last viewed Dec. 14, 2021). Lymphatic filariasis is spread from person to person through mosquitoes and commonly causes lymphedema, i.e., swelling in the legs or arms due to blockages in the lymphatic system. See id.; MAYO CLINIC, Lymphedema (Sept. 18, 2021), available at https://www.mayoclinic.org/diseases-conditions/lymphedema/symptoms-causes/syc-20374682 (last viewed Dec. 14, 2021). Here, the record includes a medical opinion from Dr. T.W., a VA vascular surgery attending physician, with respect to the etiology of the Veteran's lymphedema. Dr. T.W. opined that it was more likely that not that the Veteran had a prior history of a filarial infection involving his legs. Dr. T.W. acknowledged that serology tests performed in 2016 were negative for signs of filaria. However, Dr. T.W. explained that he had consulted with a colleague specializing in infectious diseases, who agreed that even if blood tests done in 2016 did not yield results consistent with a prior, remote filarial infection, testing done at that point in time would not have generated such results anyway. Ultimately, it was more likely than not that the Veteran had a past, remote history of a filarial infection. To that end, Dr. T.W. stated that the Veteran served in the Philippines while he was in the military, an appropriate location for filarial exposure. Moreover, Dr. T.W. indicated in his opinion that the swelling in his legs, which had its onset in 2002, had its onset later in life, consistent with lymphedema tarda. He also pointed out that the Veteran "really does not have any other reason why he should have lymphedema tarda" and thus that it was "quite probable that he had a latent filarial infection with lymphatic destruction." A review of the Veteran's service personnel and medical records confirm that he was stationed on the U.S.S. Constellation, which visited the Philippines during his time on the ship. The Veteran also testified at his August 2021 hearing that he was frequently bitten by mosquitoes and other insects while he was stationed on the U.S.S. Constellation. Additionally, medical literature indicates that lymphedema often develops several years after a filarial infection. For instance, the Centers for Disease Control and Prevention states that the standard method for diagnosing an active filarial infection is via laboratory tests test, but because lymphedema may develop "many years after infection, lab tests [for filariasis] are most likely to be negative with these patients." See CENTERS FOR DISEASE CONTROL & PREVENTION, Parasites Lymphatic Filariasis: Diagnosis (Mar. 16, 2018), available at https://www.cdc.gov/parasites/lymphaticfilariasis/diagnosis.html (last viewed Dec. 14, 2021). The Board finds that this information is consistent with Dr. T.W.'s opinion regarding the nature of the Veteran's lymphedema. Resolving all reasonable doubt in the Veteran's favor, the Board finds that his lymphedema was caused by lymphatic filariasis. The Board acknowledges that the Veteran's lymphedema had its onset more than one year following his discharge from service. However, as Dr. T.W. suggested in his opinion, his lymphedema manifested at a time such that the incubation period for filariasis most likely commenced while he was in the military. Indeed, Dr. T.W. stated that the onset of swelling later in life was consistent with lymphedema tarda due to a latent filarial infection that was incurred during service in the Philippines. This timeframe is consistent with generally accepted medical treatises. Affording him the benefit of the doubt, the Board finds that the incubation period for his filarial infection, which more likely than not caused his lymphedema, commenced during his service. As such, he is presumptively entitled to service connection for lymphedema caused by lymphatic filariasis, and the appeal is granted. REASONS FOR REMAND 1. Diabetes mellitus and peripheral neuropathy The Veteran contends that he is entitled to service connection for diabetes mellitus due to exposure to herbicide agents during service while stationed abord the U.S.S. Constellation. He also argues that he is entitled to service connection for peripheral neuropathy in his bilateral lower extremities secondary to diabetes mellitus. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided that other regulatory provisions are satisfied. 38 C.F.R. § 3.309(e). For instance, diabetes mellitus is among the diseases presumed to be associated with herbicide agent exposure. Id. For VA purposes, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A. Additionally, the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) was recently signed into law, which extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 ("The BWN Act codified the Procopio holding"). Moreover, Congress also intended the BWN Act to "ensure that VA defines 'the Republic of Vietnam' broadly." Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). Here, the evidence of record indicates that the Veteran was stationed aboard the U.S.S. Constellation in 1973 and 1974. He has argued that his ship was stationed in the waters within 12 nautical miles offshore of Vietnam during this time. The Board notes that the Regional Office previously took steps to verify whether he was aboard another ship, the U.S.S. Thomaston, during the relevant timeframe. Additionally, the Regional Office stated in a September 2011 formal finding that the U.S.S. Constellation did not travel up the rivers of Vietnam because it was an aircraft carrier. To date, however, it has not taken appropriate steps to ascertain the exact whereabouts of the U.S.S. Constellation during the timeframe when the Veteran was on board. In light of the decision in Procopio and the recent enactment of the BWN Act, remand is warranted for the Regional Office to determine whether he had qualifying service in the Republic of Vietnam, including in the waters within 12 nautical miles offshore, during his service. If the Regional Office determines on remand that he had qualifying service in the Republic of Vietnam, the Veteran would presumptively be entitled to service connection for diabetes mellitus. The outcome of this claim will impact the outcome of his claim for service connection for peripheral neuropathy in the bilateral lower extremities secondary to diabetes mellitus. As such, his claim for service connection for peripheral neuropathy must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). If service connection is awarded for diabetes mellitus, additional development is warranted to determine whether he is entitled to secondary service connection for peripheral neuropathy. In that event, the Regional Office should arrange for the Veteran to undergo a VA examination, if necessary, to determine whether peripheral neuropathy was either caused or aggravated by diabetes mellitus. 2. Respiratory condition The Veteran also argues that he is entitled to service connection for a respiratory condition, to include as due to exposure to asbestos or other hazardous chemicals while stationed on the U.S.S. Constellation. More specifically, he contends that he was exposed to asbestos and various chemicals, such as toluene, methyl ethyl ketone (MEK), and naphtha, as part of his work on the corrosion control team. His DD Form 214 confirms that his military occupational specialty was aircraft mechanic. The Board has carefully considered the evidence in the record. At this juncture, however, the Board cannot reach the merits of the Veteran's appeal. This is because remand is warranted to obtain additional medical evidence regarding the etiology of his current lung condition. The Board notes that the Veteran submitted a private medical opinion from Dr. M.W. with respect to the etiology of his lung condition dated October 2021. In that opinion, Dr. M.W. stated that he believed it was more likely than not that the Veteran's exposures to toluene, nafcillin, and MEK contributed to his current lung condition, because those chemicals were known to contribute to lung disease. However, the probative weight of Dr. M.W.'s opinion is significantly diminished because his medical opinion is conclusory and not supported by a detailed rationale. An opinion that is conclusory or that does not provide a sufficiently detailed rationale is inadequate. Stefl v. Nicholson, 23 Vet. App. 320 (2007). Additionally, the Veteran underwent a VA examination regarding the etiology of his lung condition in February 2016. When VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The February 2016 VA examination report reflects that the Veteran was diagnosed with chronic obstructive pulmonary disease (COPD). However, the VA examiner opined that it was less likely than not incurred in or caused by his claimed in-service exposure to asbestos because COPD was not one of the usual residuals of asbestos exposure. The VA examiner failed to consider the Veteran's other lay contentions, such as his contentions regarding exposure to toluene, MEK, and naphtha. As such, the February 2016 VA examiner's opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, remand is warranted to obtain a sufficiently detailed addendum medical opinion regarding the etiology of the Veteran's respiratory condition. Accordingly, the matters are REMANDED for the following action: 1. Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam. Such action includes conducting additional inquiry with appropriate sources and any other development deemed necessary to verify whether the Veteran was exposed to herbicide agents during his service aboard the U.S.S. Constellation in 1973 and 1974. Any development on remand should address whether the U.S.S. Constellation was within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed on the ship. The Regional Office must consider all available resources deemed helpful in determining whether he falls within the expanded definition described above, including but not limited to deck logs, ship logs, and captain's logs from the U.S.S. Constellation. The non-existence or unavailability of such records must be verified and documented in the record. Required notice must also be provided to the Veteran and his representative. 2. If service connection is granted for diabetes mellitus, schedule the Veteran for an examination to determine the nature and etiology of his peripheral neuropathy in the bilateral lower extremities. The Veteran's claims file and a copy of this remand should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file in its entirety. The examiner is then asked to opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that the disability was (1) caused, or (2) aggravated by a service-connected disability. "Aggravation" is defined as worsening beyond the natural progression of the disability. The examiner is reminded that causation and aggravation must be addressed separately in the opinion. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should consider the Veteran's lay statements, including his hearing testimony, regarding the nature and onset of his peripheral neuropathy. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. Additionally, obtain an addendum medical opinion to regarding the nature and etiology of the Veteran's lung condition. The Veteran's claims file and a copy of this remand should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file in its entirety. The examiner is then asked to opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that the Veteran's lung condition had its onset during or is otherwise related to military service, including exposure to asbestos or chemicals such as toluene, nafcillin, and MEK. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should consider all relevant evidence of record, including the Veteran's lay statements, his hearing testimony, and Dr. M.W.'s opinion regarding the nature and onset of his lung condition. (Continued on the next page) If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate 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.