Citation Nr: 21008577 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-42 468 DATE: February 17, 2021 ORDER New and material evidence has been presented and the previously denied claim for service connection for a low back disorder is reopened. Service connection for peripheral neuropathy of the lower extremities is granted. Service connection for ringworm on the right foot is denied. Service connection for migraine headaches is denied. REMANDED Service connection for a low back disability remanded. Service connection for rashes is remanded. Service connection for a right knee disability is remanded. Service connection for a carpal tunnel syndrome is remanded. FINDINGS OF FACTS 1. The June 2011 rating decision denying the Veteran’s service connection claim for a low back disability is final. 2. Evidence received since the June 2011 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s service connection claim for a low back disability. 3. The medical evidence shows that the Veteran has been diagnosed with diabetic peripheral neuropathy of the bilateral lower extremities. 4. The medical evidence of record does not show that the Veteran has a current diagnosis of ringworm on the right foot at any time during the period on appeal. 5. The medical evidence does not show that the Veteran has a current diagnosis of migraines at any time during the period on appeal. CONCLUSIONS OF LAW 1. The June 2011 rating decision denying the Veteran’s claim for service connection for low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1104. 2. The evidence received subsequent to the June 2011 rating decision is considered new and material, and the claim for service connection for a low back is reopened. 38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3. The criteria for service connection for the bilateral lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.310. 4. The criteria for service connection for ringworms of the right foot have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. 5. The criteria for service connection for migranes have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to January 1970. He was scheduled a videoconference hearing with the Board in June 2018. However, in a May 2018 correspondence, the Veteran withdrew his request for hearing. Reopening a Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.§ 5108. New evidence means 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 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran’s claim for entitlement to service connection for a low back condition was denied by a June 2011 rating decision. That decision became final since the Veteran did not timely file an appeal. Thus, for the matter to be reopened, new and material evidence is required. At the time of the June 2011 rating decision, the record consisted of the Veteran’s service treatment records, which did not reflect any complaints or diagnosis relating to a back disability, VA treatment records documenting low back pain, and a January 2011 VA examination for his PTSD, noting that the Veteran indicated that his back pain began in service. Evidence received since the June 2011 rating decision include new VA treatment records which show that the Veteran has since been diagnosed with lumbar radiculopathy at L3 to L4 and L4 to L5 stenosis with neurogenic claudication. Over the course of the years, his condition continued deteriorate with pain radiating into his lower extremities. Additionally, in his August 2011 Notice of Disagreement, the Veteran described in detail that during service, he hurt his back when he was removing a vehicle hitch from a water buffalo. The device fell on his leg, snapping his knee and pulling his back severely. He was taken to the infirmary and examined by a Corpsman. He was later placed on light and restricted duty as he worked in the mess hall for a few days. In sum, the Board finds that the Veteran has submitted new and material evidence pertaining to his low back. Such evidence was not previously of record. Thus, the Veteran’s previously denied claim for a low back disability is reopened. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Additionally, service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disease or illness manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain “chronic diseases” may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303 (b). Peripheral Neuropathy of the Lower Extremities The Veteran is currently seeking service connection for peripheral neuropathy of his lower extremities. This matter is on appeal from a June 2011 rating decision. In his November 2010 claim for service connection, the Veteran asserts that the sensation began during service in December 1968 and that he was seen by a field medic in Vietnam. In his August 2011 Notice of Disagreement, the Veteran indicated that he sustained an injury during his Advanced Infantry Training. He was helping with a water buffalo and when it was taken off the vehicle hitch, the device fell on his leg, snapping his knee and pulling his back severely. The sensation was instant and felt like ‘something broke.’ He was taken to the infirmary and examined. He was evaluated by a Corpsman, who did not take x-rays. He was prescribed an ointment to be used on his knee and back. He was placed on restricted and light duty, working in the mess hall for a few days. Additionally, his foot was run over by a military trailer when he was in Vietnam. His back and knee had never been the same. The pain and discomfort had persisted for 40 years. He did not report this pain at his separation examination to avoid delays in exiting and seeing his family. A review of his service treatment records did not document any complaints of tingling and numbness sensations in his extremities. His separation examination in January 1970 did not report any clinical abnormalities indicative of a nerve condition. VA treatment records in May 2014 showed that the Veteran was seen for his sensory peripheral neuropathy in both lower extremities. The physician offered a clinical assessment of diabetes mellitus peripheral neuropathy. A January 2017 treatment record also noted that the Veteran is diabetic with neuropathy. Based on a March 2015 VA examination report, the examiner concluded that the Veteran did not have early onset peripheral neuropathy and that his condition was less likely related to his military service. However, he was afforded a VA examination in January 2018. There, a clinical diagnosis of diabetic peripheral neuropathy was rendered. While the examining physician noted that the date of onset was unknown, the Veteran currently exhibits clear signs of peripheral neuropathy such as mild intermittent pain, numbness, and paresthesias of the lower extremities. There was decreased position sense and cold sensation in both legs. Upon review of the record, the Board finds that service connection for peripheral diabetes of the lower extremities is warranted. While the Veteran’s service connection may not prevail on a direct basis, his claim is warranted based on the secondary theory of entitlement. The Board notes that he was previously granted service connection for diabetes mellitus by a June 2017 rating decision. Furthermore, VA treatment records and the most recent VA evaluation report dating January 2018 clearly show that the Veteran currently has diabetic peripheral neuropathy of the legs. Accordingly, service connection for peripheral neuropathy of the lower extremities is granted. Ringworm in the right foot (dermatophytes) The Veteran is seeking service connection for ringworm in the right foot and filed his claim in November 2010. This matter is on appeal from a June 2011 rating decision. He asserts that he was infected with ringworms in December 1968 and was seen by a field medic in Vietnam. In his August 2011 Notice of Disagreement however, he indicated that the medic that he saw turned out to be a mechanic. At the time, he believed that both he and the ‘medic’ successfully ‘dug it out.’ He never sought treatment for it and never mentioned it to his physicians because he was never asked about it. His service treatment records did not document any problems suggestive of ringworms or dermatophytes. His separation examination in January 1970 did not report any clinical abnormalities of his skin. VA treatment records post service do not show any diagnosis of ringworm on his right foot. An August 2014 treatment note reported some yellow discoloration of the great toenail, but no other comments were made. An April 2017 VA podiatry notes indicated that the Veteran was not presented with any keratosis on his feet. Upon review of the record, the Board finds that service connection for ringworm in the right foot is not warranted. The Board is mindful of the Veteran’s lay statements describing his symptoms while he was in service. While his statements are credible and competent, the medical evidence does not demonstrate a current diagnosis of ringworm on the right foot. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no disability, service connection is not warranted, and the claim is denied. Migraines The Veteran asserts that he developed migraines during service. This matter is on appeal from a June 2011 rating decision. In his January 2011 statement support of claim, the Veteran indicated that the bad memories from his tour in Vietnam causes his migraine headaches. In his August 2011 Notice of Disagreement, the Veteran specified that while in Vietnam, he was situated under a tank when his unit was attacked. When the tank fired a round, he sustained sudden, but temporary hearing loss with accompany headaches for several hours. While he reported his headaches to his superior officers, they told him to just ‘shake it off.’ Then, at his separation examination, the Veteran did not report his headaches to the physician to avoid any delays in seeing his family. Service treatment records were silent for any complaints or treatment for migraine headaches. His separation examination did not report any clinical abnormalities suggestive of chronic migraines. Post service treatment records show that the Veteran denied having headaches on several occasions. For example, VA treatment records in 2013 noted that the Veteran specifically denied having any headaches. Over the course of several years, the Veteran sought medical attention for various health problems. However, migraine headaches were not listed as part of his problem list. He continued to deny having any headaches in 2016 and 2017. He was not diagnosed with migraines at any point during the period on appeal. Additionally, there is no medical opinion even suggesting that the Veteran’s currently claimed headache disorder either began during or was otherwise caused by his military service. As previously discussed, the requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain, 21 Vet. App. 319, 321. Here, it does not appear that the Veteran has a current headache disorder, but even if one were found to be present there is no medical evidence linking such a diagnosis to the Veteran’s military service. As such, service connection for headaches is denied. REASONS FOR REMAND Service connection for a low back disability is remanded. The Veteran’s service connection claim for a low back disability is remanded for further development. The Veteran asserts that he injured his back during his tour in Vietnam. In his August 2011 Notice of Disagreement, he indicated that he had been removing a vehicle hitch from a water buffalo when the device fell on his leg, causing him to snap his back. He sought medical attention immediately and was placed on restricted and light duty, working in the mess hall. His service treatment records were silent for any complaints or diagnosis relating to a low back injury or chronic condition. His claims file does not reflect any assignment of light or restricted duty after his injury as described by the Veteran. Post service treatment records clearly show a diagnosis of a low back condition, which has been worsening over the course of several years. He has documented complaints of low back pain from 2010 and has since been diagnosed with radiculopathy at L3 to L4 and L4 to L5 stenosis with neurogenic claudication symptoms. Upon review of the record, the Board finds that a medical nexus opinion is warranted to address the etiology of the Veteran’s current back disability. Thus, a remand for development is necessary prior to the adjudication of this claim. Service connection for rashes is remanded. The Veteran’s service connection claim for rashes is remanded for further development. It is his assertion that he suffered from skin rashes during his active duty and was treated by a field medic. In his August 2011 Notice of Disagreement, the Veteran indicated that he developed the condition while stationed a LZ Nancy, Vietnam, due to the hot and humid climate. While he experienced various allergic reactions, he did not always seek medical attention. On the occasion that he sought treatment, the medics would recommend body powder as quick treatment. His service treatment records were silent for any complaints or diagnosis of a rash. His separation examination in January 1970 did not report any clinical abnormalities of his skin. Post service, VA treatment records in January 2013 showed that the Veteran was presented with papules on his face, neck, and trunk. He was diagnosed with actinic keratosis. VA dermatology notes showed that the Veteran struggled with scaly skin and was counseled on sun exposure and was advised on using sunscreen when outside. In October 2016, the Veteran’s condition showed improvements as the lesions on his neck and trunk were no longer an issue. Papules remained on his left and right temple. However, by December 2016 and January 2017, the Veteran reported no rashes or other skin conditions. A review of the record shows that during the period on appeal, the Veteran clearly has a skin condition that affects several parts of his body. He has credibly asserted that he developed skin problems during his tour in Vietnam due to the harsh sun exposure and climate. However, the record lacks a nexus opinion on the Veteran’s claim. Thus, the Board finds that a remand is necessary to obtain a medical opinion on the etiology of his skin condition. Service Connection for a Right Knee Disability The Veteran’s service connection claim for a right knee disability is remanded for further development. In his November 2010 claim for service connection, the Veteran asserts that the pain and swelling in the right knee had begun in service during 1968. Based on his August 2011 Notice of Disagreement, the Veteran indicated that he sustained an injury during his Advanced Infantry Training. He was helping with a water buffalo and when it was taken off the vehicle hitch, the device fell on his leg, snapping his knee and pulling his back severely. The sensation was instant and felt like ‘something broke.’ He was taken to the infirmary and examined. He was evaluated by a Corpsman, who took no x-rays. He was prescribed an ointment to be used on his knee and back. He was placed on restricted and light duty, working in the mess hall for a few days. His back and knee had never been the same, with pain persisting for 40 years. He did not report this pain at his separation examination to avoid delays in exiting and seeing his family. Post service, VA treatment records in December 2010 noted his complaints of right knee pain, which was suspected as osteoarthritis. At his January 2011 VA examination for his PTSD, the Veteran told the examiner that he hurt his right knee during service while unloading a trailer and that the pain had been present ever since. The Veteran was ultimately diagnosed with severe osteoarthritis of the right knee and underwent arthroscopic surgery. He was advised against any weight bearing for at least 36 hours and to keep his leg elevated. Subsequent VA treatment records continue to show the Veteran’s complaints of chronic knee pain. The Veteran clearly has a clinical diagnosis of a right knee condition. The record also contains a credible statement in which the Veteran described a service injury to his right knee, which he states has developed into a chronic condition. However, without a medical opinion, the Board may not yet adjudicate the matter. Therefore, on remand, a medical opinion regarding the etiology of the Veteran’s right knee disability should be obtained. Service Connection for Carpal Tunnel Syndrome is remanded. The Veteran’s service connection claim for carpal tunnel syndrome is remanded for further development. In his August 2011 Notice of Disagreement, the Veteran indicated that he developed carpal tunnel syndrome during his service in Vietnam due to the repetitive nature of his work. He was required to work with nozzles, operating the gauges and fueling vehicles and aircrafts. After work, his hands and fingers would tingle followed by numbness. After seeing a medic, he was informed that there was nothing to be done. The condition had continued ever since service. A review of the Veteran’s service treatment records was silent for complaints or treatment suggestive of carpal tunnel syndrome. His separation examination did not report any clinical abnormalities pertaining to his neurological system. Post service, an October 2010 nerve conduction study revealed a right motor and sensory carpal tunnel syndrome. Treatment records in January 2013 showed that his condition was improving due to medication and the use of a wrist brace. The record shows that the Veteran has been diagnosed with a clinical condition during his appeal period. He has credibly attributed that his condition was caused by his duties during active duty. Thus, the Board finds that a medical opinion regarding the etiology of the Veteran’s carpal tunnel syndrome should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete military personnel records. 2. Obtain a medical opinion regarding the Veteran’s low back disability. If the VA examiner finds that an examination is warranted, schedule a new VA examination for the Veteran. It may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner is asked to determine: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s low back disability had onset in or is otherwise related to his military service? Why or why not? The examiner should consider and address the Veteran’s August 2011 statement describing his in-service injury that involved his back. 3. Obtain a medical opinion regarding the Veteran’s current skin condition. If the VA examiner finds that an examination is warranted, schedule a new VA examination for the Veteran. It may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner is asked to determine the following: What skin condition(s) does the Veteran have? For each of his skin condition, is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin condition, including actinic keratosis, had onset in or is otherwise related to his military service? Why or why not? In doing so, the VA examiner must consider and address the Veteran’s August 2011 statement describing his condition while he was stationed in Vietnam. 4. Obtain a medical opinion regarding the Veteran’s right knee disability. If the VA examiner finds that an examination is warranted, schedule a new VA examination for the Veteran. It may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner is asked to determine the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right knee disability had onset in or is otherwise related to his military service? Why or why not? The examiner should consider and address the Veteran’s August 2011 statement describing his in-service injury that involved his right knee. 5. Obtain a medical opinion regarding the Veteran’s carpal tunnel syndrome. If the VA examiner finds that an examination is warranted, schedule a new VA examination for the Veteran. It may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner is asked to determine the following: (Continued on the next page)   Is it at least as likely as not (50 percent probability or greater) that the Veteran’s carpal tunnel syndrome had onset in or is otherwise related to his military service? Why or why not? In doing so, the VA examiner must consider and address the Veteran’s August 2011 statement describing his condition while he was stationed in Vietnam. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.