Citation Nr: 0004115 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-07 983 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of upper and lower extremities. 2. Whether there is new and material evidence to reopen a claim for service connection for a skin condition (other than tinea pedis and dyshidrosis) due to agent orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from September 1959 to October 1962, and from January 1964 to November 1989. An RO rating decision in December 1992 denied the veteran's claim for service connection for skin disease, on the basis that there was no evidence of skin problems at a VA examination. The Board of Veterans' Appeals (Board) notes, however, that in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989), a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542 (1984), codified in pertinent part at 38 U.S.C.A. § 1154(a) (West 1991). An RO rating decision in March 1994 denied the veteran's claim for service connection for chloracne, on the basis that there was no diagnosis of chloracne. The veteran was notified of this decision, and he did not appeal. This matter comes to the Board of Veterans' Appeals (Board) from a February 1997 RO rating decision that (1) denied service connection for peripheral neuropathy of upper and lower extremities due to Agent Orange exposure; and (2) determined that new and material evidence was not submitted to reopen a claim of entitlement to service connection for a skin condition due to Agent Orange exposure. The veteran submitted a notice of disagreement in February 1998, and the RO issued a statement of the case in March 1998. The veteran submitted a substantive appeal in May 1998. A March 1999 RO rating decision granted service connection for tinea pedis and dyshidrosis of the veteran's feet and hands, and assigned a 10 percent evaluation under diagnostic code 7806, effective from September 1996. Accordingly, the Board has reclassified the issue of entitlement to service connection for a skin condition due to Agent Orange exposure as shown on the first page of this decision. FINDINGS OF FACT 1. The veteran has submitted competent evidence tending to show a current neurological disability of the upper and lower extremities; a continuity of symptomatology of numbness, tingling, and swelling of the hands, arms, feet, and legs; and a causal nexus to a service-connected disability. 2. By an unappealed RO rating decision in 1994, service connection for chloracne was denied. 3. Evidence submitted since the 1994 RO denial of service connection for a skin condition (other than tinea pedis and dyshidrosis) is new evidence, but does not bear directly and substantially on the matter at hand, or is not of such significance that it must be considered to fairly consider the claim. CONCLUSIONS OF LAW 1. The claim for service connection for peripheral neuropathy of upper and lower extremities is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The unappealed 1994 RO decision, denying the veteran's claim for service connection for a skin condition (other than tinea pedis and dyshidrosis), was final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1103 (1994). 3. The additional evidence submitted subsequent to the 1994 RO decision, denying the veteran's claim for service connection for a skin condition (other than tinea pedis and dyshidrosis), is not new and material; the claim is not reopened; and the prior RO rating decision remains final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Peripheral neuropathy of upper and lower extremities In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a veteran has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the veteran's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the veteran in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the veteran has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In this case, service medical records show that the veteran suffered a gunshot wound into the axilla area of the right shoulder in September 1965. A December 1992 RO rating decision granted service connection for status post gunshot wound, right axilla with retained foreign body with "history of numbness of hands, fingers and arms," major arm, and assigned a 20 percent evaluation under diagnostic code (DC) 5302, effective from May 1992. Ratings under DC 5302 are based primarily upon a showing of functional impairment caused by muscle injury. The veteran now appears to be claiming additional functional impairment due to a neurological disorder. Statements of the veteran are to the effect that he continues to have numbness, tingling, and swelling of the hands, arms, feet, and legs. A 1996 nerve conduction study is suggestive of bilateral ulnar nerve entrapment across the elbow. In light of the prior grant of service connection for residuals of a gunshot wound that include a "history of numbness of hands, fingers, and arms," the Board finds that the veteran has presented a plausible claim for service connection for peripheral neuropathy of upper and lower extremities. As such, the claim is well grounded. II. Skin condition (other than tinea pedis and dyshidrosis) In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for a disease based on exposure to agent orange when there is medical evidence linking it to such incident. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 U.S.C.A. § 1116 (West 1991 & Supp. 1999) and 38 C.F.R. § 3.307(a)(6) (1999) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption of 38 C.F.R. § 3.307(d) (1999) 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 (PCT); 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) (1999). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne, PCT, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one 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 U.S.C.A. §§ 1113, 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307(a)(6)(ii). The March 1994 RO rating decision denied service connection for chloracne based upon the lack of evidence of a current diagnosis of chloracne. Since the veteran did not submit a timely notice of disagreement and a timely substantive appeal to the March 1994 RO rating decision that denied the veteran's claim for service connection, it is final with the exception that the veteran may later reopen the claim if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a) (1999). The question now presented is whether new and material evidence has been submitted since the RO's adverse March 1994 rating decision, denying the veteran's claim for service connection for chloracne, to permit reopening of the claim. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994); Manio v. Derwinski, 1 Vet. App. 140 (1991). In considering whether the claim may be reopened, a two-step analysis must be employed. First, the Board must determine whether the evidence submitted to reopen the claim is both new and material. Secondly, if, and only if, the Board determines that the evidence is both new and material, the claim is deemed to have been reopened and it must be evaluated on the basis of all of the evidence of record, both new and old. See Manio, 1 Vet. App. at 145. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The first step in the two-step analysis involves two questions: (1) is the newly presented evidence "new," that is, not previously submitted to agency decisionmakers, and not cumulative or redundant; and (2) is the newly presented evidence "material," that is, does it bear directly and substantially upon the specific matter under consideration, and is it so significant that it must be considered in order to fairly decide the merits of the claim? In addition, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is no requirement, however, that such evidence, when viewed in the context of all of the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence of record at the time of the unappealed March 1994 RO rating decision consisted primarily of service department records, service medical records, and post-service medical records, including records of a 1993 Agent Orange examination. This evidence, in general, failed to show evidence of a skin condition other than tinea pedis and dyshidrosis of the veteran's feet and hands. Since the unappealed March 1994 RO rating decision, the evidence added to the record includes 1993 outpatient treatment records, a 1996 report of a VA examination, 1997 outpatient treatment records, and a 1998 hospital report. A careful review of the evidence added to the record show that the only skin conditions noted are tinea pedis and dyshidrotic eczema, for which service connection has already been granted. The Board finds this evidence, while new, is not material because, without a diagnosis of chloracne or of a skin condition other than tinea pedis or dyshidrosis, the evidence is of no significance to the matter under consideration. Hence, the evidence is not "new and material." While the veteran asserts that he is entitled to service connection for a skin condition (other than tinea pedis and dyshidrosis) due to exposure to Agent Orange in service, this lay evidence is not sufficient to demonstrate the presence of the claimed disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As no new and material evidence has been submitted, there is no basis to reopen the claim for service connection for a skin condition (other than tinea pedis and dyshidrosis), and the March 1994 RO rating decision, denying the veteran's claim for service connection for chloracne, remains final. ORDERS The claim of entitlement to service connection for peripheral neuropathy of upper and lower extremities is well grounded. To this extent only, the appeal is granted. There being no new and material evidence submitted, the application to reopen the claim for service connection for a skin condition (other than tinea pedis and dyshidrosis) is denied. REMAND Peripheral neuropathy of upper and lower extremities The veteran's claim is plausible, and therefore well grounded. However, having found that the veteran's claim is plausible does not end the Board's inquiry. Rather, in this case, it places upon VA the duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 82 (1990). A careful review of the record shows that the veteran has a history of numbness of the hands, fingers, and arms. A VA Agent Orange examination in August 1993 noted numbness in fingers. A December 1994 orthopedic progress note indicated that the veteran's symptoms could possibly be referable both to a herniated disc and a right carpal tunnel. Records also show that the veteran was hospitalized for a stroke from March 7, 1998, to May 29, 1998; the significant presence of neurological deficits was noted in a VA hospital report. The overall evidence leaves the Board uncertain as to the nature and extent of the veteran's peripheral neuropathy, and as to the etiology of any such condition. Where there is a reasonable possibility that a current condition is related to a condition experienced in service, VA should seek a medical opinion as to whether the veteran's claimed current disability is in any way related to the condition experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). Service connection has been granted for (1) status post gunshot wound, right axilla (major arm) with retained foreign body with history of numbness of hands, fingers and arm; (2) degenerative joint disease cervical spine; (3) surgical absence of coccyx with healed scar with pain on motion of the lumbar spine and coccygeal spine as residual; (4) tinea pedis and dyshidrosis of feet and hands; and (5) epicondylitis right elbow. It also appears that not all records from the veteran's hospitalization in 1998 have been associated with the claims folder. These records are relevant to the veteran's claim and are constructively of record. The duty to assist the veteran in the development of facts pertinent to his claim includes obtaining all relevant records. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, a remand is required for the RO to obtain a medical opinion as to the relationship, if any, between the veteran's current peripheral neuropathy and his service- connected disabilities, and to obtain up-to-date treatment records. In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran and his representative to prepare a detailed list of all sources (VA and non-VA) of evaluation and treatment for the veteran's peripheral neuropathy since 1998. Names and addresses of the medical providers, and dates of evaluations and treatment, should be listed. After obtaining any needed release forms from the veteran, the RO should directly contact the medical providers and obtain copies of the records not already in the file. 2. The RO should request an addendum to the 1998 VA hospital report in the form of an opinion as to whether it is at least as likely as not that the veteran's current peripheral neuropathy, if any, is related to any service-connected disability. A review of the service medical records and post-service medical records should be conducted. If deemed necessary, an examination of the veteran should be arranged. All opinions should be supported by a discussion of medical principles as applied to the specific evidence in the veteran's case. The claims folder should be made available for review. 3. After the above development, the RO should then review the veteran's claim of entitlement to service connection for peripheral neuropathy. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to him and his representative, and they should be afforded an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action unless notified otherwise, but may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); see also Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. E. DAY Member, Board of Veterans' Appeals