Citation Nr: 0003919 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-17 006A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for disability of the peripheral nervous system. 2. Entitlement to a higher disability evaluation for service-connected porphyria cutanea tarda, currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active military service from July 1964 to July 1967. He served in the Republic of Vietnam from January to December of 1966. This appeal arises from rating decisions by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans' Affairs (VA). In December 1996, the RO granted service connection for porphyria cutanea tarda, and assigned a 50 percent evaluation, effective February 3, 1994. In March 1997, a notice of disagreement was received in which the veteran disagreed with his assigned rating. A statement of the case was issued in April 1997, and in June 1997, a substantive appeal was received. In April 1998, the RO denied service connection for peripheral neuropathy, claimed as secondary to exposure to Agent Orange, or some other herbicide, during service. A letter from the veteran's representative, received that same month, was construed as a notice of disagreement. In May 1998 a statement of the case was issued, and a substantive appeal was received that same month. In January 1997, the RO increased the veteran's evaluation for his service-connected porphyria cutanea tarda from 50 percent to 70 percent, effective February 3, 1994. FINDINGS OF FACT 1. There is a state of equipoise on the question of whether or not the veteran's current disability of the peripheral nervous system, variously diagnosed, was manifested within one year of his discharge from military service. 2. The veteran's service-connected porphyria cutanea tarda is not shown to have resulted in pronounced disability with aggravation of such symptoms as dilation of superficial abdominal veins, chronic dyspepsia, slight loss of weight or impairment of health, or liver definitely enlarged with abdominal distention due to early ascites and with muscle wasting and loss of strength necessitating frequent tapping. CONCLUSIONS OF LAW 1. Chronic organic disability of the peripheral nervous system is presumed to have been incurred during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. The criteria for entitlement to an evaluation in excess of 70 percent for porphyria cutanea tarda have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board notes that in an August 1984 rating decision denied entitlement to service connection for peripheral neuropathy claimed as residual to exposure to Agent Orange. There was no appeal, and the RO's August 1984 decision became final. 38 U.S.C.A. § 7105(c). As a general rule, there must be new and material evidence presented or secured to reopen a claim which is the subject of a prior final decision. 38 U.S.C.A. § 5108. However, when a provision of law or regulation creates a new basis of entitlement to veterans' benefits through the liberalization of the requirements for entitlement to benefits, a claim under the new law is a claim separate and distinct from the claim previously denied prior to the liberalizing law or regulation. See Spencer v. Brown, 4 Vet. App. 283 (1993); aff'd 17 F. 3d 368 (Fed. Cir. 1994). In this case, subsequent to the RO's August 1984 decision, liberalizing laws and regulations were enacted governing claims based on exposure to Agent Orange and other herbicides during service. See, e.g., 61 Fed. Reg. 57,586 (1996) (codified at 38 C.F.R. § 3.309(e)). The veteran is therefore considered to have filed a new claim. I. Service Connection As a preliminary matter, the Board finds that the veteran's claim of entitlement to service connection for peripheral neuropathy is plausible and capable of substantiation and is thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The record includes a medical diagnosis of current disability and medical evidence suggesting a link to service. In this regard, the Board points to the various letters from John H. Parks, M.D. pertaining to a diagnosis of peripheral neuropathy and its etiology as well as 1997 medical records from Timothy L. Coleman, M.D. as to a diagnosis of current disability. At this point the Board observes that in a letter received in December 1996, the veteran's representative stated that due to psychiatric and physical disabilities, the veteran would be unable to report for a VA examination. Similarly, medical reports, including, but not limited to, letters from John H. Parks, M.D., dated in September 1988, and January and June of 1995, and a March 1988 VA examination report, note that the veteran has agoraphobia. The January 1995 letter notes that he is "severely phobic of VA physicians and VA hospitals." Accordingly, during the course of its adjudication the RO has requested and obtained an opinion on the veteran's claim without requesting that the veteran be examined. Under the circumstances, it would appear that no useful purpose would be served by remanding the case for a VA neurological examination. The record does include, however, numerous medical reports and records, and the Board finds that under the particular facts of this case that the duty to assist the veteran with his service connection claim have been met. 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Furthermore, disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (emphasis added). For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e) [Note 2]. The diseases listed at 38 C.F.R. § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (emphasis added). While certain presumptions must be considered, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is, even if the facts do not show that the presumption criteria have been met, service connection can still be established if it is shown that a current disability is related to service. A review of the veteran's written statements shows that the veteran asserts that his claim involves a unique and complex medical history and that he has peripheral neuropathy which is the result of exposure to Agent Orange, or some other herbicide, during service. He further asserts that he had strange symptoms, such as rashes, upon his return from Vietnam. The veteran's service records show that he served in Vietnam from January to December of 1966, and that his awards include the Combat Infantryman Badge. The claims file includes lay statements from the veteran's wife, who asserts that the veteran began receiving treatment in 1967, and a friend of the veteran, T.D., who asserts that the veteran began complaining of tingling and numbness after service in Vietnam. The veteran's service medical records include a separation examination report, dated in July 1967, which shows that the veteran's neurological system was clinically evaluated as normal. In the accompanying report of medical history, he denied ever having neuritis or paralysis. The remainder of the veteran's service medical records are silent as to complaints, treatment or a diagnosis involving peripheral neuropathy or an organic disease of the nervous system. Turning first to consideration of the claim under statutory presumptions, the Board first points out that there are two applicable presumptions, one based on 38 C.F.R. §§ 3.307(a)(3), 3.309(a) for chronic diseases (which include organic diseases of the nervous system) and 38 C.F.R. §§ 3.307(a)(6), 3.309(e) for disease associated with exposure to certain herbicide agents (which include acute and subacute peripheral neuropathy). To the extent that the veteran's claim is based on the provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) due to exposure to Agent Orange, there is simply no persuasive medical evidence showing a diagnosis of acute or subacute peripheral neuropathy at any time. Therefore, although the veteran service in Vietnam and the provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) must be considered in his case, the preponderance of the evidence is against finding that entitlement is warranted under the presumptive provisions of these regulations. However, as the veteran was discharged from service in July 1967, the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a) for chronic diseases would also appear to be applicable in light of certain medical evidence to the effect that the veteran was treated for neuropathy in 1967. These presumptive provisions for organic diseases of the nervous system would apply even if the veteran had not served in Vietnam. The Board initially notes that many items of medical evidence are silent with regard to any mention of neuropathy prior to about 1972. Some records suggest that following an automobile accident which occurred in July 1972, the veteran began receiving treatment for associated symptoms that included leg and foot numbness and stiffness and weakness of the right arm. JCMH records show that between 1972 and 1974 he was hospitalized at least three times for these symptoms. However, the record does include a November 1996 letter from James C. Johnson, M.D. in which he clearly states that he saw the veteran in late 1967 and had peripheral neuropathy (among other disorders) at that time. The Board has also considered certain notations in letters from Dr. Parks, to include a July 1996 letter, in which he essentially repeats Dr. Johnson's opinion. With regard to Dr. Johnson's opinion, the Board notes that his treatment records dated prior to 1996 were apparently destroyed, with the exception of records dated between 1980 and 1983 (some of which are under the ORMC letterhead), and three account statements dated in 1983. With regard to the opinion of Dr. Parks, to the extent that he argues that the veteran has had peripheral neuropathy since 1966, his opinion is not supported by his own treatment records, dated in April 1994, which state that the veteran has had a diagnosis of peripheral neuropathy for 15 years (i.e., since 1979). Separate and independent of the foregoing, a handwritten note, dated in October 1994, indicates that Dr. Parks began treating the veteran in 1986, and as there are no actual records of treatment for peripheral neuropathy prior to 1980, Dr. Parks' opinion on this issue appears to be based on a bare transcription of lay history. Finally, the Board points out that the veteran's own statements, dated in March and April of 1984, and a VA examination report dated in May 1986, show that the veteran reported that his first diagnosis and/or treatment for peripheral neuropathy was in 1980. To further complicate the matter, the record includes a November 1997 medical report from Timothy L. Coleman, M.D. showing a diagnosis of anterior motor neuron disease which was arrived at after examination and a EMG nerve conduction study. Further, in a subsequent May 1999 letter, Dr. Coleman further commented that the veteran had documented motor neuron disease. He also stated that although Dr. Johnson described the disease as a peripheral neuropathy, he believed that this was the same illness that the veteran had had since 1966 under the care of Dr. Johnson. A review of medical records from Dr. Parks shows that the veteran's illness has been regularly described as peripheral neuropathy. However, in an April 1998 opinion, a VA medical examiner (after a review of the claims file) commented that although the veteran does have symptoms and signs that are consistent with peripheral neuropathy, such a finding had not been confirmed by the nerve conduction velocity studies done so far. The Board notes here that the VA examiner went on to opine that the etiology would be entirely speculative at that time. However, the Board also notes that the examiner was commenting in the context of a question regarding an etiology possibly due to Agent Orange exposure. The issue under consideration is clearly one of some medical complexity as demonstrated by the apparent lack of consensus as to what medical diagnosis to assign to the veteran's neuropathy. The lack of supporting clinical records during the period after service makes an informed resolution of the issue even more difficult. However, against this lack of supporting clinical records (and certain ambiguities in the opinions of certain doctors), there is a clear statement from Dr. Johnson to the effect that he saw the veteran as a patient in late 1967 and that he had peripheral neuropathy at that time. Although Dr. Johnson's records have apparently been destroyed, this fact alone does not mean the Board can totally discount his statement. When taken together with the statement from Dr. Coleman relating the veteran's current motor neuron disease to the illness treated by Dr. Johnson in 1967 (within one year of discharge from service), the Board finds that a reasonable doubt has been raised as to whether service connection is warranted under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). By law, such reasonable doubt must be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). II. Increased Rating The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for a higher evaluation is well-grounded. See 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, in such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). After reviewing the evidence, the Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). In this regard, the Board notes that review of an April 1998 VA report shows that the examiner stated that further studies be done to study urinary porphyrins, and an elevated GGT. However, the veteran and his representative have indicated that the veteran will not agree to such examinations. Specifically, as previously stated, in a letter received in December 1996, the veteran's representative stated that due to his psychiatric and physical disabilities, the veteran would be unable to report for an examination. Similarly, Dr. Parks has indicated that the veteran has agoraphobia and is "severely phobic of VA physicians and VA hospitals." Accordingly, during the course of its adjudication the RO has requested and obtained an opinion on the veteran's claim without requesting that the veteran be examined, and the Board will review the claim on the evidence currently of record. See 38 C.F.R. § 3.655(b) (1999). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. By rating decision in December 1996, the RO determined that service connection was warranted for porphyria cutanea tarda (PCT), subsequently evaluated as 70 percent disabling. The RO assigned an effective date of February 3, 1994. Accordingly, the issue is whether a rating in excess of 70 percent for PCT is warranted for any period from February 3, 1994 to the present. The veteran's PCT is evaluated as 70 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7312. Under DC 7312, entitled "Liver, cirrhosis of," a 30 percent disability rating is warranted where the condition is moderate with dilation of superficial abdominal veins, chronic dyspepsia, slight loss of weight or impairment of health. A 50 percent rating is warranted where there are moderately severe symptoms with the liver definitely enlarged with abdominal distention due to early ascites and with muscle wasting and loss of strength. A 70 percent rating is warranted for severe cirrhosis with ascites requiring infrequent tapping, or recurrent hemorrhage from esophageal varices, aggravated symptoms and impaired health. A 100 percent rating is appropriate where the cirrhosis is pronounced with aggravation of the symptoms for moderate and severe, necessitating frequent tapping. 38 C.F.R. § 4.114, DC 7312. The claims files contain records from Dr. Smith, Dr. Parks, Dr. Gutsgell and a VA examination report, dated in April 1998. The Board finds the VA report, dated in April 1998, is particularly probative of this issue. The examiner acknowledged a persistently elevated GGT liver enzyme level, but also noted that skin biopsy or a definitive work-up for abnormal liver function tests were not in evidence. The examiner further noted that the veteran's urinary porphyrin levels for the last three years were normal, with no demonstrated increase in uroporphyrin levels. In addition, a review of the other evidence of record does not suggest that the veteran's PCT has resulted in pronounced disability with aggravation of the symptoms for moderate and severe (i.e., dilation of superficial abdominal veins, chronic dyspepsia, slight loss of weight or impairment of health, or liver definitely enlarged with abdominal distention due to early ascites and with muscle wasting and loss of strength) necessitating frequent tapping. Even if the Board accepts Dr. Parks' assertion that alternative testing renders tapping unnecessary, there is still not ample evidence showing pronounced disability in keeping with the criteria set forth under Diagnostic Code 7312. In reaching this decision, the Board has considered statements by Dr. Parks and Dr. Smith that the veteran is 100 percent disabled due to his PCT. However, while these physicians have placed emphasis on elevated or abnormal liver function tests, the fact remains that the diagnostic criteria for a 100 percent rating have not been shown. The Board further notes that although Dr. Parks has argued that the veteran has severe muscle weakness due to his PCT (see e.g., Dr. Parks' letter dated in June 1997), a review of his letters shows that he has also argued at tremendous length that the veteran is totally disabled due to symptoms of peripheral neuropathy and/or AMND which include weakness. The issue now under consideration is limited to the degree of severity of the service-connected PCT. In sum, while acknowledging that the veteran's PCT disability is severe, the current 70 percent rating contemplates a finding of severe disability. While certain laboratory tests reveal elevated readings, the overall diagnostic criteria for a 100 percent evaluation are not shown to be met. The Board has considered the evidence in view of the provisions 38 U.S.C.A. § 5107(b). However, there is not such a state of equipoise of the positive evidence and the negative evidence to allow for assignment of a higher rating at this time. Finally, the Board notes a request for extraschedular consideration. It appears that the RO has declined to refer the case for such consideration. There is certainly no doubt that the veteran's PCT is severely disabling. However, the Board does not view the schedular criteria to be rendered impractical in the present case so as to warrant an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The present case does not show that the rating criteria are inadequate to fairly rate the veteran's disability, but rather that the evidence currently of record does not show that the criteria for a higher rating have been met. ORDER Entitlement to service connection for organic disability of the peripheral nervous system is warranted. To this extent, the appeal is granted. Entitlement to a disability evaluation in excess of 70 percent for the veteran's service-connected porphyria cutanea tarda is not warranted. To this extent, the appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals