Citation Nr: 21009621 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-33 209 DATE: February 23, 2021 ORDER Entitlement to service connection for a skin disorder involving the feet is denied. Entitlement to service connection for a skin disorder involving the hands is denied. Entitlement to service connection for a skin disorder, claimed as tumors, is denied. Entitlement to service connection for a skin disorder involving the neck is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. REMANDED Entitlement to service connection for a bilateral leg disorder, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a lip disorder is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for a disorder manifested by shaking hands is remanded. Entitlement to peripheral neuropathy of the left lower extremity is remanded. Entitlement to an increased rating greater than 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Tinea pedis, onychomycosis, sebaceous cysts, dermatitis, lichen keratosis, moles, and skin tags are not diseases associated with exposure to herbicide agents. 2. The preponderance of the evidence is against a finding that the Veteran’s skin disorders affecting the feet are due to or a result of active duty service, to include in-service exposure to herbicide agents. 3. The preponderance of the evidence is against a finding that the Veteran’s skin disorders affecting the hands are due to or a result of active duty service, to include in-service exposure to herbicide agents. 4. The preponderance of the evidence is against a finding that the Veteran’s skin disorders affecting the body are due to or a result of active duty service, to include in-service exposure to herbicide agents. 5. The preponderance of the evidence is against a finding that the Veteran’s skin disorders affecting the neck are due to or a result of active duty service, to include in-service exposure to herbicide agents. 6. The first evidence of right or left upper extremity peripheral neuropathy symptoms occurred in 2005, 37 years after the Veteran’s discharge from service. 7. The preponderance of the evidence is against finding that the Veteran’s peripheral neuropathy of the left upper extremity is due to or a result of active duty service, to include in-service exposure to herbicide agents. 8. The preponderance of the evidence is against finding that the Veteran’s peripheral neuropathy of the right upper extremity is due to or a result of active duty service, to include in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disorder affecting the feet have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a skin disorder affecting the hands have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a skin disorder affecting the body have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a skin disorder affecting the neck have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b); 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 U.S. Army from December 1966 to December 1968. The issue of entitlement to service connection for headaches was previously before the Board in August 2018, when it was remanded for further development of the evidence. While the Veteran’s appeal was in remand status, his claim for entitlement to service connection for headaches was granted in a May 2020 rating decision. This action constitutes a full grant of the benefit sought on appeal with respect to that issue, and it is no longer before the Board. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the appellant nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including early-onset peripheral neuropathy, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. As the Veteran’s service personnel records confirm that he served in the Republic of Vietnam from January 1968 through April 1968, he is presumed to have been exposed to herbicide agents during active duty service. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In other words, notwithstanding the presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation. Id. As such, the Board will adjudicate the Veteran’s claims under all theories of entitlement to service connection. 1. Entitlement to service connection for a skin disorder involving the feet; entitlement to service connection for a skin disorder involving the hands; entitlement to service connection for a skin disorder, claimed as tumors; and entitlement to service connection for a skin disorder involving the neck The Veteran contends that he has skin disorders involving his hands, feet, neck, and entire body that were caused by his active duty service, including inservice exposure to herbicide agents. The medical evidence reflects current diagnoses of tinea pedis, affecting the feet; onychomycosis, affecting the feet; contact dermatitis, affecting the hands; lichenoid keratosis with features of lichen planus; moles; skin tags; and eczema. Accordingly, there are current diagnoses of skin disorders affecting the body, feet, hands, and neck. Although the Board has found that the Veteran was exposed to herbicide agents during his active military service, tinea pedis, onychomycosis, contact dermatitis, sebaceous cyst of the neck, lichenoid keratosis, moles, and skin tags are not diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive basis as due to in-service exposure to herbicide agents is not warranted. Service connection is also not warranted on a direct basis. There is no evidence of in-service incurrence of any skin disorder. The Veteran has not reported experiencing any symptoms of a skin disorder during service, and the Veteran’s service treatment records are silent for any complaints of or treatment for a skin disorder during service. The Veteran’s October 1968 separation examination shows that his skin was normal. On a report of medical history, completed at that time, the Veteran denied a history of skin diseases and tumor, growth, cyst, or cancer. Further, a November 2019 VA examiner opined that it was less likely than not that the Veteran’s diagnosed skin disorders were caused by or incurred in the Veteran’s active duty service, including his in-service exposure to herbicide agents. The VA examiner explained that the opinion was based upon the significant length of time between active duty service and the onset of the Veteran’s skin symptoms and the lack of evidence of in-service symptoms. Last, the first evidence of skin symptoms in the medical record is shown in 2009, 41 years after service separation. Therefore, the record does not show that the Veteran’s skin disorders had their onset during his active service or are otherwise etiologically related to his active service on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Also, the probative medical evidence of record shows that the Veteran’s skin disorders are not related to in-service exposure to herbicide agents. Thus, the Board finds that the weight of the evidence is against a finding of service connection for a skin disorder involving the feet, a skin disorder involving the hands, a skin disorder involving the neck, or a skin disorder, claimed as tumors. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity and entitlement to service connection for peripheral neuropathy of the right upper extremity The Veteran contends that he has peripheral neuropathy of the right and left upper extremities due to in-service exposure to herbicide agents. Initially, the Board observes that the record establishes current diagnoses of cervical radiculopathy of the right and left upper extremities. Accordingly, current diagnoses are shown. Although the Veteran is presumed to have been exposed to herbicide agents during military service, service connection is not warranted on a presumptive basis based upon in-service exposure to herbicide agents because there is no evidence indicating that the Veteran had early-onset peripheral neuropathy of the right and left upper extremities which became manifest to a degree of 10 percent or more within one year of active duty service. In that regard, the first evidence of neurological symptoms affecting the upper extremities is shown in September 2012. During a November 2019 VA examination, the Veteran noted a history of neuropathy symptoms beginning in 2005, 37 years after separation from service. Accordingly, service connection for peripheral neuropathy of the right and left upper extremities is not warranted on a presumptive basis. Last, service connection is not warranted for peripheral neuropathy of the right or left upper extremity on a direct basis. In that regard, the Veteran does not contend that he began experiencing symptoms of peripheral neuropathy of the upper extremities during active duty service. Further, the Veteran’s service treatment records are silent as to any complaints of or treatment for peripheral neuropathy of the upper extremities during service. An October 1968 separation examination reflects that the Veteran’s upper extremities were normal. Further, in an October 1968 report of medical history, the Veteran denied a history of cramps in the legs, lameness, neuritis, and paralysis. Additionally, a November 2019 VA examiner opined that it was less likely than not that the Veteran’s right or left upper extremity peripheral neuropathy were incurred in or caused by active duty service, including in-service exposure to herbicide agents, based primarily on the length of time between active duty service (and in-service exposure to herbicide agents) and the development of peripheral neuropathy symptoms. Last, the Veteran has reported the onset of his peripheral neuropathy symptoms in 2005, 37 years after service separation. Therefore, the record does not show that the Veteran’s peripheral neuropathy of the upper extremities had their onset during his active service or are otherwise etiologically related to his active service on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Also, the probative medical evidence of record shows that the Veteran’s right and left upper extremity peripheral neuropathy are not related to in-service exposure to herbicide agents. The weight of the evidence is against a finding of service connection for peripheral neuropathy of the right and left upper extremities. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. In compliance with the Board’s August 2018 remand, the Veteran underwent a VA examination in November 2019 to determine the etiology of his hypertension. The November 2019 VA examiner opined that it was less likely than not that the Veteran’s hypertension was related to his active duty service, in part, because the record was “silent for complaints, treatment, or diagnosis of hypertension until 2015; 47 years post military discharge.” However, the medical evidence of record shows that this is incorrect, as medical treatment records dated in February 1998 reflect that the Veteran was prescribed and taking medication for hypertension at that time. Further, during the November 2019 VA examination, the Veteran reported the onset of his hypertension in the 1980’s. Because the factual basis for the November 2019 VA examiner’s opinion is inaccurate, a new VA opinion should be provided. 2. Entitlement to service connection for a bilateral leg disorder, to include as secondary to a service-connected disability is remanded. As noted in the Board’s August 2018 VA examination, the medical evidence of record suggests that the Veteran’s bilateral leg disorder, manifested by edema in both lower extremities, suggests an association with hypertension. Accordingly, it is intertwined with the claim for entitlement to service connection for hypertension. Additionally, because the evidence only suggests an association with hypertension, the Veteran should be provided with a VA examination to assess the nature and etiology of all diagnosed bilateral leg disorders (apart from the claimed peripheral neuropathy disorders of the bilateral legs) to determine whether any such disabilities were caused or aggravated by the Veteran’s hypertension. 3. Entitlement to service connection for a lip disorder is remanded. In November 2019, the Veteran underwent a VA examination to determine the etiology of his lip tremor. The VA examiner opined that the Veteran’s lip tremor was not etiologically related to service based solely on the “delay of symptoms.” The examination report notes an onset date of symptoms in 2019. However, in his March 2012 claim form (which was clearly filed earlier than 2019), the Veteran reported the onset date of his lip tremor symptoms in 1973, approximately 5 years after service discharge. Because the Veteran’s competent lay statements of symptoms since 1973 were not considered or addressed by the November 2019 VA examiner, a new VA examination is required. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity and entitlement to service connection for peripheral neuropathy of the left lower extremity are remanded. In November 2019, a VA examiner opined that it was less likely than not that the Veteran’s peripheral neuropathy of the bilateral lower extremities was related to his active duty service based upon the onset of symptoms in 2004 and the medical evidence attributing the Veteran’s peripheral neuropathy symptoms to lumbar radiculopathy. However, there is also medical evidence in the claims file suggesting that the Veteran’s peripheral neuropathy in the lower extremities was related to meralgia paresthetica, and that the Veteran’s meralgia paresthetica symptoms began as early as 1996. As the November 2019 VA examiner’s opinion does not address this pertinent evidence, a new VA examination should be obtained to assess the impact of meralgia paresthetica on the Veteran’s peripheral neuropathy in the lower extremities, and the etiology of meralgia paresthetica. 5. Entitlement to service connection for a disorder manifested by shaking hands is remanded. The Veteran was also provided with a VA examination to determine the etiology of his symptoms of hand shaking in November 2019. The VA examiner concluded that the Veteran’s “shaking bilateral hands/essential tremor/Parkinson’s disease” was not related to his active duty service because the evidence did not demonstrate the onset of such symptoms until 2015. However, the Veteran has provided competent lay statements of the onset of his hand shaking symptoms in 1973. Because this was not addressed by the VA examiner, a new VA examination should be conducted. Additionally, the Board observes that the November 2019 VA examiner noted that, because the medical evidence did not show an “official diagnosis of Parkinson’s disease,” service connection could not be granted on a presumptive basis. However, a diagnosis of Parkinson’s disease has also not been excluded. Because the medical evidence reflects a differential diagnosis of essential tremor versus Parkinson’s disease versus side effect of Gabapentin, the Veteran should undergo a VA examination, conducted by a neurologist, to determine whether he has a diagnosis of Parkinson’s disease. 6. Entitlement to a TDIU and entitlement to an increased rating greater than 70 percent for posttraumatic stress disorder (PTSD) are remanded. Entitlement to a TDIU is a part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2020, the Veteran raised the issue of entitlement to a TDIU in conjunction with his claim for an increased rating for PTSD. In a November 2020 formal claim submitted in support of TDIU, the Veteran provided his work history as well as contact information for previous employers. He also identified private treatment records from Baptist Memorial Hospital. The Veteran did not indicate the purpose of his hospitalizations at Baptist on his claim form; however, because he raised his claim for entitlement to a TDIU in conjunction with his claim for an increased rating for PTSD, these records may be relevant to both claims for TDIU and an increased rating for PTSD. Accordingly, the Veteran’s claims for entitlement to an increased rating for PTSD and entitlement to a TDIU are remanded to obtain the identified private treatment records, to obtain employment information from the Veteran’s previous employers, and to conduct any other development indicated. The matters are REMANDED for the following action: 1. After obtaining the required authorizations from the Veteran, obtain the Veteran’s identified treatment records from Baptist Memorial Hospital. All actions to obtain these records should be documented in the claims file. 2. Contact the Veteran’s listed employers and verify his dates of employment and employment history. 3. Provide the Veteran with a VA examination by appropriate physician to determine the etiology of his hypertension. The Veteran’s claims file and a copy of this remand must be reviewed by the examiner, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s hypertension was incurred in or caused by his active duty service, to include in-service exposure to Agent Orange. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran’s lay statements as to the onset of his hypertension and the objective medical evidence documenting hypertension since at least 1998 in the opinion provided. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. 4. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his bilateral leg disorder (apart from the peripheral neuropathy of the bilateral lower extremities), to include any leg disorder manifested by edema. The Veteran’s claims file and a copy of this remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or greater) that any diagnosed bilateral leg disorder (apart from peripheral neuropathy of the bilateral lower extremities) was caused by or incurred during the Veteran’s active duty service? (b.) Is at least as likely as not that the Veteran’s bilateral leg disorder was caused or aggravated by his hypertension? The examiner is advised that the medical evidence of record reflects edema in the bilateral lower extremities and indicates that the symptoms were successfully treated with a diuretic. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the bilateral leg disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation. 5. Provide the Veteran with a VA examination by appropriate physician to determine the etiology of his lip tremor. The Veteran’s claims file and a copy of this remand must be reviewed by the examiner, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s lip tremor was incurred in or caused by his active duty service, to include in-service exposure to Agent Orange. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran’s lay statements as to the onset of his lip tremor in 1973. The examiner is advised that the Veteran is competent to report observable symptomatology. 6. Provide the Veteran with a VA examination by appropriate physician to determine the etiology of his peripheral neuropathy of the bilateral lower extremities. The Veteran’s claims file and a copy of this remand must be reviewed by the examiner, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s peripheral neuropathy in the lower extremities was incurred in or caused by his active duty service, to include in-service exposure to Agent Orange. The examiner should also provide an opinion as to whether the Veteran’s peripheral neuropathy of the bilateral lower extremities was caused or aggravated by meralgia paresthetica. In providing the opinion, the examiner is asked to discuss the medical evidence which suggests that the Veteran’s peripheral neuropathy is related to meralgia paresthetica. If a relationship is found, the examiner is asked to determine whether the meralgia paresthetica is related to the Veteran’s active duty service, including in-service exposure to Agent Orange. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the peripheral neuropathy of the lower extremities was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran’s lay statements and is advised that the Veteran is competent to report observable symptomatology. 7. Provide the Veteran with a VA examination, conducted by a neurologist, to determine the etiology of his hand shaking symptoms. The Veteran’s claims file and a copy of this remand must be reviewed by the examiner, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. After thoroughly reviewing the evidence of record, the examiner should address the following: (a.) Does the Veteran have a diagnosis of Parkinson’s disease? If not, what is the proper diagnosis for his hand shaking symptoms? (b.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s hand shaking symptoms were incurred in or caused by his active duty service, to include in-service exposure to Agent Orange? A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran’s lay statements as to the onset of his hand shaking symptoms in 1973. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. 8. Readjudicate the claims on appeal. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.