Citation Nr: 21013822 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-27 097 DATE: March 10, 2021 ORDER As new and material evidence has not been received, the application to reopen a claim for service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, is denied. As new and material evidence has not been received, the application to reopen a claim for service connection for a sleep disorder, diagnosed as insomnia and obstructive sleep apnea (OSA), to include as due to exposure to herbicide agents, is denied. As new and material evidence has not been received, the application to reopen a claim for service connection for a cardiovascular disorder, diagnosed as cardiomyopathy, to include as due to exposure to herbicide agents, is denied. New and material evidence having been received, the application to reopen the claim for service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, is granted; the appeal is granted to this extent only. New and material evidence having been received, the application to reopen the claim for service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicide agents, is granted; the appeal is granted to this extent only. New and material evidence having been received, the application to reopen the claim for service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents, is granted; the appeal is granted to this extent only. New and material evidence having been received, the application to reopen the claim for service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents, is granted; the appeal is granted to this extent only. Prior to March 24, 2017, an initial rating in excess of 10 percent for papillary thyroid carcinoma, status post thyroidectomy is denied. As of March 24, 2017, a rating of 60 percent, but no higher, for papillary thyroid carcinoma, status post thyroidectomy is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In a final June 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s service connection claims for diabetes mellitus, type 2; cardiovascular disorder, diagnosed as cardiopathy; sleep disorder, diagnosed as insomnia and OSA; and peripheral neuropathy of the bilateral lower and upper extremities. 2. The evidence received since the June 2015 rating decision does not relate to any unestablished facts necessary to substantiate the claims for service connection for diabetes mellitus, type 2, a sleep disorder, or a cardiovascular disorder. 3. The evidence received since the June 2015 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities, is neither cumulative nor redundant of the evidence already of record, and raises a reasonable possibility of substantiating the claims. 4. The Veteran was present in the Republic of Vietnam during his military service, and is presumed to have been exposed to herbicide agents. 5. Prior to March 24, 2017, the Veteran’s papillary thyroid carcinoma, status post thyroidectomy was manifested by fatigability. 6. As of March 24, 2017, the Veteran’s papillary thyroid carcinoma, status post thyroidectomy, has been manifested by hypothyroid endocrine dysfunction, fatigability, and mental disturbance. CONCLUSIONS OF LAW 1. The June 2015 rating decision, wherein the RO denied service connection for diabetes mellitus, type 2, sleep disorder, cardiovascular disorder, and peripheral neuropathy of the bilateral upper and lower extremities, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received since the June 2015 rating decision that is sufficient to reopen the Veteran’s claims for service connection for diabetes type, 2, sleep disorder, or cardiovascular disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received since the June 2015 rating decision that is sufficient to reopen the Veteran’s claims for service connection for peripheral neuropathy of the bilateral lower and upper extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Prior to March 24, 2017, the criteria for an initial rating in excess of 10 percent for papillary thyroid carcinoma, status post thyroidectomy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.119, Diagnostic Code 7903. 5. As of March 24, 2017, the criteria for a rating of 60 percent for papillary thyroid carcinoma, status post thyroidectomy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.119, Diagnostic Code 7903. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to May 1972, to include service in the Republic of Vietnam (RVN). In January 2021, the Veteran withdrew his hearing request before a Veterans Law Judge, and the record does not reflect that he has made a further request to reschedule the canceled hearing. Thus, the Board will proceed with its review of the appeal. Reopening Claims Once a claim has been denied by VA and becomes final, new and material evidence must be received to reopen the claim. New evidence is defined as 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 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). When determining whether a previously denied claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been received to reopen claims of entitlement to service connection for diabetes mellitus, type 2, sleep disorder, and cardiovascular disorder. By a June 2015 rating decision, the (RO), in part, denied the Veteran’s claims for service connection for diabetes mellitus, type 2, sleep disorder, and cardiovascular disorder. The RO concluded that the Veteran did not have a diagnosis of diabetes mellitus but had only been found to have been pre-diabetic and to have had borderline diabetes. In addition, there was no evidence that a sleep or cardiovascular disorder had its onset during active service and no medical evidence that linked his diagnosed OSA to his active service, to include exposure to Agent Orange in the RVN. With regard to the Veteran’s cardiovascular disorder, the RO also determined that the evidence did not show a diagnosis of a condition for which VA has found a positive association to herbicide exposure. That same month, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the June 2015 rating decision is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). The Veteran filed to reopen the aforementioned claims in August 2016. As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, unestablished facts that are necessary to substantiate the claims include evidence of a diagnosis of diabetes mellitus, type 2; evidence of a medical nexus that links his OSA and cardiovascular disorder to his active service, to include his presumed exposure to herbicide agents in the RVN; and evidence that he has ischemic heart disease or a cardiovascular disorder with which VA has found a positive association to herbicide exposure. The Veteran has not submitted any additional medical evidence that relates to the reason his claims were previously denied in June 2015. Since the June 2015 rating decision, additional VA and private medical records have been received. This evidence, while new as it was not of record at the time of the final June 2015 rating decision, is not material. It is not material because the evidence does not contain competent evidence, beyond the Veteran’s assertions, that (1) suggests he has a definitive diagnosis of diabetes mellitus, type 2; (2) reflects a medical nexus that links his cardiovascular disorder or OSA to his active service, to include his presumed exposure to herbicide agents in the RVN; or (3) that he has ischemic heart disease or a cardiovascular disorder that VA has linked to herbicide exposure. Accordingly, there has not been evidence received that addresses previously unestablished facts necessary to substantiate the claims for service connection for diabetes mellitus, type 2, sleep disorder, or cardiovascular disorder. Thus, the Board must conclude that new and material evidence has not been received, and the Veteran’s application to reopen such claims must be denied. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1100. 2. Whether new and material evidence has been received to reopen claims of entitlement to service connection for peripheral neuropathy of the bilateral lower and upper extremities. By a June 2015 rating decision, the RO, in part, denied the Veteran’s claims for service connection for peripheral neuropathy of the bilateral lower and upper extremities because there was no evidence that the disabilities had their onset during active service and there was no medical evidence that linked these disabilities to his active service, to include exposure to Agent Orange during his RVN service. That same month, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the June 2015 rating decision is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). The Veteran filed to reopen his claims in August 2016. As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, an unestablished fact necessary to substantiate the claims of service connection includes a medical nexus that links his peripheral neuropathy of the upper and lower extremities to his active service, to include his presumed exposure to herbicide agents in the RVN. In an August 2015 medical report, received by VA in August 2016, a private physician diagnosed peripheral neuropathy and stated that Agent Orange could have certainly contributed to or caused it. The Board finds that this evidence was not previously submitted to VA before the June 2015 rating decision and that, assuming its credibility for the sole purpose of deciding whether to reopen the claims, such addresses a requirement of service connection that was previously denied, namely, a nexus linking peripheral neuropathy of the upper and lower extremities to service. Therefore, this evidence is “new” and “material” and the Veteran’s application to reopen claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted to this extent only. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Board will address the reopened claims in the remand section of the decision. 3. Entitlement to an initial rating in excess of 10 percent for papillary thyroid carcinoma, status post thyroidectomy. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran is currently assigned a 10 percent rating for papillary thyroid carcinoma, status post thyroidectomy pursuant to Diagnostic Code 7903. Under Diagnostic Code 7903, a 10 percent rating is assigned when hypothyroidism is manifested by fatigability, or continuous medication is required for control. A 30 percent rating requires fatigability, constipation, and mental sluggishness. A 60 percent rating requires muscular weakness, mental disturbance, and weight gain. A 100 percent rating requires cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. The Court has addressed the specific application of the rating criteria for Diagnostic Code 7903. The Court found that all the symptoms listed for a particular disability rating were not required to be demonstrated in order to establish entitlement to a higher disability rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). The Court noted that symptoms that meet some of the rating criteria should be considered in light of 38 C.F.R. § 4.7 and resolved based on the evidence of record. The Court also stated that the rating criteria for Diagnostic Code 7903 are not successive. Tatum, 23 Vet. App. at 155. A claimant could potentially establish all the criteria required for a 30 percent or 60 percent rating without establishing any of the criteria for a lesser disability rating. Id. at 156. The Board observes that Diagnostic Code 7903 was amended, effective December 10, 2017 (see Fed. Reg., 82 FR 50802 (November 2, 2017)). When such changes are made during an appeal, the Veteran is entitled to resolution of the claim under the criteria more advantageous. The old criteria may be applied to the entire appeal period, whereas the new criteria may only be applied as to the effective date of the change. As of December 10, 2017, Diagnostic Code 7903 provides a 100 percent rating for hypothyroidism manifesting as myxedema (cold intolerance, muscle weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion), and mental disturbance (including, but not limited to dementia, slowing of thought and depression)). Note (1) states that such evaluation shall continue for six months beyond the date that an examining physician has determined crisis stabilization. Thereafter, the residual effects of hypothyroidism shall be rated under the appropriate diagnostic code(s) within the appropriate body system(s). For hypothyroidism without myxedema, a 30 percent rating is assigned for six months after the initial diagnosis. Thereafter, the residuals of disease or medical treatment are to be rated under the most appropriate diagnostic code(s) under the appropriate body system. 38 C.F.R. § 4.119, Diagnostic Code 7903, Note (2). Initially, the Board notes the RO previously denied a rating in excess of 10 percent, specifically finding that the Veteran’s symptoms of mental sluggishness were encompassed as part of his service-connected PTSD. Additionally, VA treatment records dated prior to March 24, 2017, indicate the Veteran’s thyroid disability was stable with medication, and the records do not demonstrate additional complaints of symptoms associated with his thyroid disability. Conversely, following examination of the Veteran on March 24, 2017, a VA examiner specifically attributed the Veteran’s symptoms of hypothyroid endocrine dysfunction, fatigability, and mental disturbance to his papillary thyroid carcinoma, status post thyroidectomy. In this case, when considering the above, the Board finds the old criteria most advantageous to the Veteran and, therefore, will apply such herein. Accordingly, a 60 percent rating is warranted as of March 24, 2017, based on the VA examiner’s findings that the Veteran’s residuals of thyroid cancer resulted in fatigability and mental disturbance. Since cardiovascular involvement and bradycardia are still not shown, it is not reasonable to conclude the criteria for a 100 percent rating have been demonstrated. Prior to such date, however, the Board finds a rating in excess of 10 percent is not warranted as the relevant medical evidence indicates the Veteran’s thyroid disability was stable under medications and resulted in only fatigability. The Board acknowledges the lay statements of record, to specifically include an August 2016 statement wherein his spouse maintained the Veteran had experienced decreased strength/vitality, gained significant weight, and had constipation as a result of his thyroid carcinoma. Here, however, the Board relies upon the competent medical evidence with regard to the specialized evaluation of symptom severity and details of clinical features of the Veteran’s service-connected thyroid disability. In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine and applied such in the award of the 60 percent rating as of March 24, 2017; however, as the preponderance of the evidence is against the remainder of the Veteran’s claim, the benefit of the doubt doctrine is not applicable in such regard and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicide agents, is remanded. The reopened claims are remanded for a VA opinion to address the Veteran’s contention that his bilateral peripheral neuropathy of the upper and lower extremities is related to Agent Orange exposure during service. Service records show that the Veteran served in the Republic of Vietnam. Thus, he has the requisite type of service in the Republic of Vietnam as defined by 38 C.F.R. § 3.307(a)(6)(iii) and is presumed to have been exposed to an herbicide agent during such service in the absence of affirmative evidence to the contrary. The disabilities for which the Veteran seeks service connection, however, are not enumerated in 38 C.F.R. § 3.309(e), which provides presumptive service connection only for early-onset peripheral neuropathy manifesting within one year after the last date on which the veteran was exposed, but not delayed-onset peripheral neuropathy (i.e., manifesting more than one year after exposure). VA’s Secretary has determined that there is no positive association between exposure to herbicide agents and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014). While the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.307 (a)(6)(iii), however, he is not precluded from establishing entitlement to service connection on a direct basis under 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As previously reported in the analysis for reopening the claims, in an August 2015 medical report, received by VA in August 2016, a private examiner opined that Agent Orange certainly could have contributed to or caused the Veteran’s peripheral neuropathy. The Board finds this diagnosis to be of reduced probative value because it is equivocal in establishing a nexus between the Veteran’s diagnosed peripheral neuropathy and his presumed Agent Orange exposure. Moreover, there was no rationale for the etiological opinion. Nonetheless, the Veteran was exposed to Agent Orange and a VA medical opinion has not been obtained to address whether his exposure to Agent Orange during service caused his delayed-onset peripheral neuropathy 40 years later. An opinion should be obtained to help determine the etiology of the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities. The matters are REMANDED for the following action: (Continued on the next page)   Obtain an opinion from an appropriate clinician (preferably a neurologist) to determine the nature and etiology of the Veteran’s bilateral peripheral neuropathy of the upper and lower extremities. The clinician must answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral peripheral neuropathy of the upper and lower extremities are related to an in-service injury, event, or disease, including his presumed exposure to Agent Orange? Why or why not? In formulating his or her response, the clinician must review the claims file and consider reports from the National Academy of Sciences (NAS), Institute of Medicine (IOM), titled Veterans and Agent Orange. A complete rationale should be provided for any opinion offered. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.