Citation Nr: 21005440 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-06 588 DATE: February 1, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for dengue fever is granted. REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a lumber spine disability is remanded. Entitlement to service connection for sciatica of the bilateral lower extremities is remanded. Entitlement to service connection for dengue fever is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is remanded. Entitlement to higher initial disability ratings for peripheral neuropathy of the right lower extremity, currently rated as 10 percent since April 13, 2006, and 20 percent since July 11, 2007, is remanded. Entitlement to higher initial disability ratings for peripheral neuropathy of the left lower extremity, currently rated as 10 percent from April 13, 2006, 20 percent from July 11, 2007, and 80 percent from May 25, 2012, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 29, 2008, is remanded. FINDINGS OF FACT 1. An unappealed September 2005 rating decision denied service connection for dengue fever. 2. The evidence pertaining to the Veteran's dengue fever submitted subsequent to the September 2005 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2005 rating decision that denied service connection for dengue fever is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 2. New and material evidence has been submitted to reopen the Veteran’s claim of entitlement to service connection for dengue fever. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to October 1968, to include service in the Republic of Vietnam (Vietnam) during the Vietnam War. The Veteran died in January 2014, and the Appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2005, July 2006, August 2006, November 2007, July 2009, and April 2013 rating decisions. In August 2014, the Agency of Original Jurisdiction (AOJ) determined that the Appellant could be substituted for the Veteran in this appeal. In January 2018, the Appellant withdrew the Veteran’s Board hearing request. In April 2018, the Board reopened the previously denied claims of entitlement to service connection for a skin disability and respiratory disability. The Board then remanded this entire appeal to the AOJ for further development. Upon remand, the AOJ granted service connection for asthma (claimed as a respiratory disability) in an August 2020 rating decision. The claim of entitlement to service connection for a respiratory disability is no longer on appeal before the Board. The remaining claims have been returned to the Board for adjudication. In the April 2013 rating decision, the AOJ granted entitlement to a TDIU, effective September 29, 2008. The Veteran’s peripheral neuropathy appeals stem back to April 13, 2006, the effective dates of service connection. On his September 2008 VA 21-8940 Form, the Veteran stated that he became too disabled to work due to his neuropathy since January 2004. Thus, the TDIU grant was not for the entire appeal period. Accordingly, the issue of entitlement to a TDIU prior to September 29, 2008, is raised as part and parcel of the initial rating claims on appeal and has been added to the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for dengue fever. The Veteran seeks to reopen his previously denied claim of entitlement to service connection for dengue fever based on the submission of new and material evidence. The AOJ, by a decision entered in September 2005, denied the Veteran’s claim for service connection for dengue fever. The AOJ notified the Veteran of its decision and of his appellate rights in a letter dated in September 2005, but he did not initiate an appeal of the AOJ’s decision within one year. New and material evidence was also not received within a year of the decision. 38 C.F.R. § 3.156(b). As a result, the AOJ’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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 to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the September 2005 rating decision, service connection was denied because, in pertinent part, the Veteran was not treated for dengue fever during service. The evidence received since the AOJ’s September 2005 rating decision includes lay statements from the Veteran and the Appellant, VA and private treatment records, unrelated VA examinations, personnel records, Social Security Administration (SSA) records, unrelated medical opinions, and unrelated Web articles. This evidence was not before adjudicators when the Veteran’s claim was last denied in September 2005, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for dengue fever, and raises a reasonable possibility of substantiating the claim. Specifically, on his September 2008 claim to reopen, the Veteran argued that he got dengue fever (characterized by high fever, rash, headaches, and severe muscle and joint pain) while he was stationed in the Ivory Coast during service. On his February 2009 VA Form 9, the Veteran argued that, “I had a fever while in Ivory Coast, but was told that in no way was in Malaria . . . This fever came during a high when the country was having a lot of problems with the flies that carry Dengue Fever.” A January 2014 VA treatment record also documents a military history of dengue fever during deployment. The Veteran’s service treatment records (STRs) document that in July 1968, the Veteran developed general malaise, headaches, fever, vomiting, nausea, and urinary frequency and discomfort. He was diagnosed with malaria by the doctor without laboratory work. The Veteran was stationed in the Ivory Coast at this time. As stated above, the Veteran’s statements are found to be credible for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Thus, the Board finds that the Veteran’s statements, combined with the evidence in the STRs, is sufficient to establish an in-service incurrence – one of the bases for the prior AOJ denial. Accordingly, new and material evidence is demonstrated, and the claim of entitlement to service connection for dengue fever is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a skin disability is remanded. 2. Entitlement to service connection for a lumber spine disability is remanded. 3. Entitlement to service connection for sciatica of the bilateral lower extremities is remanded. 4. Entitlement to service connection for dengue fever is remanded. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for obstructive sleep apnea is remanded. 6. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is remanded. 7. Entitlement to higher initial disability ratings for peripheral neuropathy of the right lower extremity, currently rated as 10 percent since April 13, 2006, and 20 percent since July 11, 2007, is remanded. 8. Entitlement to higher initial disability ratings for peripheral neuropathy of the left lower extremity, currently rated as 10 percent from April 13, 2006, 20 percent from July 11, 2007, and 80 percent from May 25, 2012, is remanded. Initially, for all of the claims on appeal, in a May 2020 VA Form 21-4142a, the Appellant indicated that the Veteran was treated at the National Institute of Health in Bethesda, Maryland. During his lifetime, the Veteran also made references to his treatment at the National Institute of Health. See, e.g., February 2009 VA Form 9 and May 2006 VA Form 21-4138. To date, the AOJ has not made any attempts to obtain these treatment records, and they are not currently of record. A remand is required to allow VA to request these pertinent treatment records. Also, for the skin disability claim, the Board remanded this claim for a VA medical opinion to be obtained. Upon remand, an opinion was obtained in July 2020. However, the VA examiner did not address the Veteran’s current eczema diagnosis (listed on January 2014 VA current problem list prior to his death) in providing the direct and secondary service connection medical opinions. In providing the direct service connection opinion, the examiner did not address the Veteran’s August 2008 statement of skin problems since 1968. Further, the examiner incorrectly stated that June 2004 was the first documentation of a skin problem in the claims file. Instead, a July 2002 private treatment record first documents the Veteran’s skin disability. Also, in providing the secondary service connection opinion, the examiner did not address the Veteran’s reports of skin breakouts when he was stressed or nervous (see, e.g., September 2008 NOD), as the basis for why his skin disability was caused by or aggravated by his service-connected posttraumatic stress disorder (PTSD). Accordingly, this claim must be remanded for an adequate VA medical opinion to be obtained. For the lumbar spine and sciatica claims, the Board cannot make a fully-informed decision on the issues because no VA examiner has opined whether the Veteran’s current multilevel degenerative disc disease of the lumbar spine (see June 2012 VA diagnosis before his death) and sciatica and paralysis of the sciatic nerve (see November 2013 and January 2014 VA diagnoses before his death) were due to his service, to include a possible gunshot wound. A March 2005 private treatment record documents a gunshot wound to the left lower extremity and back in 1965 in the Past Medical History section. Similarly, a June 2007 private treatment record records a history of a gunshot wound to the back. The gunshot wound is not documented in the STRs and while Veteran was stationed in Vietnam during the Vietnam War, he never alleged a prior gunshot wound while pursing his claim. The Appellant did not respond to requests for information as to whether the Veteran had a gunshot wound from service. The Board is not, at this point, finding the Veteran did suffer a gunshot wound in service since it is possible the date is in error and the Veteran may have suffered an intervening injury between service and the date of claim. To date, VA medical opinions addressing direct service connection have not been obtained for these claims, but the Board finds this evidence is sufficient to warrant VA medical opinions. Also, in his September 2008 claim, the Veteran argued that his sciatica is secondary to his service-connected diabetes mellitus, type II. A VA medical opinion addressing secondary service connection has not been obtained. Upon remand, VA medical opinions must be obtained for the lumbar spine and sciatica claims. 9. Entitlement to a TDIU prior to September 29, 2008, is remanded. The Veteran’s service-connected disabilities did not meet the schedular requirements for a TDIU for the entire appeal period prior to September 29, 2008. 38 C.F.R. § 4.16(a). The Veteran was also found to be disabled by the SSA since January 2007 due primarily from his back disorders and heart failure. However, the Veteran’s lumbar spine disability is not currently service-connected. Thus, because a decision on the remanded issues could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s federal treatment records from the National Institute of Health in Bethesda, Maryland. Document all requests for information, as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s current spongiotic psoriasiform dermatitis and eczema (diagnosed prior to his death). The examiner must review the claims file. Provide a rationale to support the opinions. The examiner is asked to provide a response to the following: (i) Were the Veteran’s spongiotic psoriasiform dermatitis and eczema at least as likely as not related to service, including his presumed in-service exposure to herbicide agents? In forming the opinion, the examiner must address the Veteran’s August 2008 statement of skin problems since 1968, and the Web articles submitted by him in February 2005 and July 2008. (ii) Is it at least as likely as not that the Veteran’s spongiotic psoriasiform dermatitis and eczema (1) began during active service, (2) manifested within one year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service? In forming the opinion, the examiner must address the Veteran’s August 2008 statement of skin problems since 1968, and the Web articles submitted by him in February 2005 and July 2008. (iii) Were the Veteran’s spongiotic psoriasiform dermatitis and eczema at least as likely as not proximately due to the service-connected PTSD? In forming the opinion, the examiner must address the Veteran’s reports of skin breakouts when he was stressed or nervous (see, e.g., September 2008 NOD), and the Web articles submitted by him in February 2005 and July 2008. (iv) Were the Veteran’s spongiotic psoriasiform dermatitis and eczema at least as likely as not aggravated, i.e., worsened beyond their natural progression, by the service-connected PTSD? In forming the opinion, the examiner must address the Veteran’s reports of skin breakouts when he was stressed or nervous (see, e.g., September 2008 NOD), and the Web articles submitted by him in February 2005 and July 2008. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current multilevel degenerative disc disease of the lumbar spine (diagnosed prior to his death) was at least as likely as not related to service. The clinician should discuss whether such disability could be due a possible gunshot wound to the back in 1965, if such an injury occurred. In providing the requested opinion, consider the Veteran’s and the Appellant’s description of the in-service injury and symptoms, as well as the Veteran’s post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s and Appellant’s reports about the Veteran’s symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s and Appellant’s reports generally inconsistent with medical knowledge or implausible? The examiner must review the claims file. Provide a rationale to support the opinion. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s current sciatica and paralysis of the sciatic nerve of the bilateral lower extremities (diagnosed prior to his death). The examiner must review the claims file. Provide a rationale to support the opinions. The examiner is asked to provide a response to the following: (i) Were the Veteran’s sciatica and paralysis of the sciatic nerve of the bilateral lower extremities at least as likely as not related to service, including a possible gunshot wound to the back in 1965 (if such an injury occurred)? In providing the requested opinion, consider the Veteran’s and the Appellant’s description of the in-service injury and symptoms, as well as the Veteran’s post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s and Appellant’s reports about the Veteran’s symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s and Appellant’s reports generally inconsistent with medical knowledge or implausible? (ii) Is it at least as likely as not that the Veteran’s sciatica and paralysis of the sciatic nerve of the bilateral lower extremities (1) began during active service, (2) manifested within one year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service? (iii) Were the Veteran’s sciatica and paralysis of the sciatic nerve of the bilateral lower extremities at least as likely as not proximately due to the service-connected diabetes mellitus, type II? (iv) Were the Veteran’s sciatica and paralysis of the sciatic nerve of the bilateral lower extremities at least as likely as not aggravated, i.e., worsened beyond their natural progression, by the service-connected diabetes mellitus, type II? (Continued on the next page)   5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to September 29, 2008. If the benefits sought are not granted to the Appellant’s satisfaction, send the Appellant a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.