Citation Nr: 9915255 Decision Date: 05/28/99 Archive Date: 06/07/99 DOCKET NO. 89-42 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to service connection for neuropathy of the lower extremities. 3. Entitlement to service connection for stomach disability. 4. Entitlement to service connection for irregular heartbeat. 5. Entitlement to service connection for sinusitis. 6. Entitlement to service connection for hearing loss. 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability and, if so, whether the reopened claim should be granted. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for skin disability and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case was remanded by the Board for further development in December 1992. By rating action in August 1996 the veteran was granted service connection and a 100 percent rating for post-traumatic stress disorder with anxiety, depression and panic disorder. Consequently, the issue of service connection for post-traumatic stress disorder is no longer before the Board. FINDINGS OF FACT 1. The claim of entitlement to service connection for bilateral carpal tunnel syndrome is not plausible. 2. The claim of entitlement to service connection for neuropathy of the lower extremities is not plausible. 3. The claim of entitlement to service connection for stomach disability is not plausible. 4. The claim of entitlement to service connection for irregular heartbeat is not plausible. 5. The claim of entitlement to service connection for sinusitis is not plausible. 6 The claim of entitlement to service connection for hearing loss is not plausible. 7. A November 1984 Board decision denied entitlement to service connection for a chronic skin disorder and for a chronic eye disorder. 8. Since the November 1984 Board decision denying service connection for a chronic skin disorder, the veteran has submitted evidence which is not cumulative or duplicative of evidence previously of record and is so significant that it must be considered in order to fairly decide the merits of the claim. 9. The evidence received since the November 1984 Board decision denying service connection for eye disability is cumulative or duplicative of evidence previously of record or is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for bilateral carpal tunnel syndrome is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for neuropathy of the lower extremities is not well grounded. 38 U.S.C.A. § 5107(a). 3. The claim of entitlement to service connection for stomach disability is not well grounded. 38 U.S.C.A. § 5107(a). 4. The claim of entitlement to service connection for irregular heartbeat is not well grounded. 38 U.S.C.A. § 5107(a). 5. The claim of entitlement to service connection for sinusitis is not well grounded. 38 U.S.C.A. § 5107(a). 6. The claim of entitlement to service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a). 7. New and material evidence to reopen the veteran's claim for service connection for a skin disability has been presented. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1998). 8. New and material evidence to reopen the veteran's claim for service connection for an eye disability has not been received. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service incurrence of certain chronic diseases, including organic disease of the nervous system, cardiovascular disease and peptic ulcer disease, may be presumed under certain circumstances if the disease is manifested to a compensable degree within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1998). Service connection may also be granted on a presumptive basis for specified diseases associated with exposure to certain herbicide agents. The specified diseases include chloracne or other acneform disease consistent with chloracne, and acute and subacute peripheral neuropathy. 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. § 1116 (West 1991); 38 C.F.R. § 3.309(e) (1998). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (1998). As a preliminary matter, the Board must determine whether the veteran has submitted evidence of well-grounded claims. If he has not, his claims must fail, and VA is not obligated to assist him in the development of the claims. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91, at 92 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, at 610-611 (1992). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). For a direct service connection 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 [disease or injury] and the current disability. Where a determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464 (1997). I. Neuropathy of the Lower Extremities - Bilateral Carpal Tunnel Syndrome The veteran seeks service connection for neuropathy of the lower extremities and for bilateral carpal tunnel syndrome. The service medical records show no diagnosis of neuropathy or carpal tunnel syndrome. On VA examination in December 1986 the veteran reported that he had developed numbness of his right lower extremity with intermittent weakness. The examination disclosed normal right leg motor strength. Sensation in the right lower extremity was decreased diffusely. Nerve conduction velocity tests (NCV) and electromyograph tests of the right lower extremity were normal. The assessment included right leg numbness and weakness of unknown etiology. An April 1989 VA outpatient treatment report notes that NCV's revealed polyneuropathy and early right carpal tunnel syndrome. On VA examination in October 1989 the veteran was noted to have bilateral carpal tunnel syndrome. The veteran has stated that he currently experiences neuropathy of the lower extremities and bilateral carpal tunnel syndrome due to service, including as a result of exposure to Agent Orange. However, as a lay person he is not capable of opining on matters requiring medical knowledge or expertise. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The record contains no medical evidence suggesting the presence of carpal tunnel syndrome or lower extremity neuropathy in service or until many years thereafter. Moreover, the record contains no medical evidence suggesting that either claimed disability is etiologically related to Agent Orange exposure or any other incident of service. Consequently, the Board must conclude that these claims are not well grounded. II. Service Connection for Irregular Heartbeat, Stomach Disorder, Sinusitis, and a Speech Disorder. The veteran contends that he is entitlement to service connection for an irregular heartbeat, a stomach disorder, sinusitis, and a speech disorder because they are etiologically related to service, to include his service exposure to Agent Orange. Service medical records are negative for evidence of these claimed disabilities. VA treatment records dated in September 1983 indicate that the veteran reported sinusitis since March 1983. Private medical records dated from December 1978 to May 1993 indicate sinus complaints in 1983. There are frequent notations of sinusitis from August 1991 to May 1993. On VA Agent Orange examination in April 1987 the veteran reported that sometimes his heart beat fast. A March 1989 VA electrocardiogram (ECG) revealed sinus bradycardia and sinus arrhythmia. The ECG was considered to be borderline.. The record does not contain any diagnosis of a heart disability manifested by an irregular heartbeat. Private outpatient treatment records dated from December 1978 to May 1993 indicate complaints of nausea and stomach trouble. On VA examination in October 1989 the veteran complained of gastrointestinal distress which was more consistent with reflux esophagitis and hiatal hernia. A VA upper gastrointestinal series in November 1989 was normal. A clinical record of inpatient psychiatric treatment at the Tuscaloosa VA hospital in March and April 1989 indicates that the veteran's speech was mumbling, with decreased flow. On VA examination in October 1989 the veteran complained of a speech impediment, documented while at Tuscaloosa VA. The examiner did not describe any speech impediment and the diagnoses make no reference to a speech disorder. While the veteran believes that he currently experiences an irregular heartbeat, a stomach disorder, sinusitis, and a speech disorder as a result of service, including as a result of exposure to Agent Orange, as a lay person he is not capable of opining on matters requiring medical knowledge or expertise. See Espiritu. The record contains no competent evidence of a speech disorder. In addition, the record contains no medical evidence suggesting the presence of an irregular heartbeat, a stomach disorder or sinusitis in service or until years thereafter or suggesting that any of these claimed disabilities is etiologically related to Agent Orange exposure or any other incident of service. Moreover, none of these claimed disabilities is subject to presumptive service connection on an Agent Orange basis. I 38 C.F.R. § 3.309(e). Therefore, the Board must also conclude that these claims are not well grounded. III. Service Connection for Hearing Loss The veteran seeks service connection for hearing loss. He asserts that his current hearing loss resulted from exposure to acoustic trauma during service and as a result of a head injury during service. The record reveals that the RO denied entitlement to service connection for hearing loss by rating action in April 1987. The record does not reflect that the veteran was informed of the April 1987 denial. Consequently, the Board is considering the veteran's claim for service connection for hearing loss on a de novo basis. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1998). A pre-induction examination report dated in April 1968 reveals that the veteran had auditory thresholds of -5, -5,- 5, 0, and 10 decibels in the right ear, and auditory thresholds of -5, -5,-5, -5, and -5 decibels in the left ear at the respective frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. The service medical records do not reveal that the veteran had any ear complaints, any exposure to acoustic trauma, or any head trauma during service. The discharge examination report dated in April 1970 reveals that the veteran had auditory thresholds of 0, 0, 0, 0, and 0 decibels in the right ear, and auditory thresholds of 0, 0, 0, 10, and 10 decibels in the left ear at the respective frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. While hospitalized for psychiatric complaints at a VA facility in March 1989, the veteran was afforded an audiological examination. The examination revealed the veteran to have mild to moderate high frequency hearing loss in both ears. A hearing aid evaluation was recommended. On VA audiological examination in December 1995 the veteran reported bilateral hearing loss since approximately 1970, when discharged from service. He reported a history of recurrent otitis media and drainage. The veteran stated that he had head trauma during active combat which resulted in immediate hearing loss and tinnitus. He reported periodic bilateral tinnitus. The veteran reported a history of military, occupational, and recreational noise exposure. He indicated that hearing protection devices were worn on the job. The examination revealed the veteran to have moderate high frequency sensorineural hearing loss in the left ear and severe to profound high frequency sensorineural hearing loss in the right ear. While the veteran has stated that his hearing loss is due to acoustic trauma and to a head injury in service, as a layperson he is not competent to render a medical opinion. See Espiritu. The record reveals that the veteran underwent an audiological evaluation in connection with his examination for discharge from service and that this evaluation did not result in a diagnosis of hearing loss. Furthermore, the record contains no medical evidence suggesting the presence of hearing loss until many years after the veteran's discharge from service or suggesting that the veteran's current hearing loss disability is etiologically related to any incident of service, including acoustic trauma and head injury. Therefore, the Board must conclude that the claim for entitlement to service connection for hearing loss is not well grounded. IV. Service Connection Claims Although the Board has disposed of these claims on grounds different from that of the RO, that is, whether the veteran's claims for service connection are well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by the Board's decision. In assuming that the claims were well grounded, the RO accorded the veteran greater consideration than his claims warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). V. New and Material Evidence The veteran also contends that he is entitled to service connection for a skin disability and for an eye disability. The Board denied entitlement to service connection for the claimed skin and eye disabilities in a November 1984 decision. The Board noted that the veteran was treated on two occasions during service for acute skin problems and that a skin disability first reported many years after discharge from service was unrelated to service. The Board further determined that the veteran had a bilateral eye disability which was not incurred in or aggravated by service, and was not secondary to any service-connected disability. The evidence of record in November 1984 included the veteran's service medical records, private medical records, a July 1983 VA examination report, a transcript of a January 1984 hearing before a hearing officer, a March 1984 VA examination report, and lay statements. The service medical records indicate that the veteran experienced a heat rash of the inguinal and scrotal region in September 1969. He experienced a fungus infection on the nape of the neck in January 1970. The entrance and discharge examination reports indicate that the veteran had impaired visual acuity, but do not identify any disease or injury of the veteran's eyes. The other service medical records are also negative for any finding or diagnosis of eye disease or injury. Private medical records dated from November 1979 to May 1983 indicate initial right eye complaints in May 1980. In June 1980 the veteran was noted to have uveitis of the right eye. A July 1983 VA examination report indicates that the veteran had mild folliculitis of the forehead and left thigh. An August 1983 letter from Quintas A. Langstaff, M.D., notes that the veteran had practically no vision in the right eye and that the veteran reported that another physician attributed the blindness to uveitis. He noted that the veteran reported having boils since service. The veteran testified before a hearing officer in January 1984 that he developed a skin disability during service. The veteran indicated that he thought that his eye disability might be due to his inservice skin disability. He testified that the physicians that he had seen had not been able to tell him the origin of his eye disability. March 1984 statements from the veteran's parents, wife and a friend note that the veteran had a skin disability after returning from service. Two of these statements further indicate that the veteran developed eye problems after experiencing a skin disability around his eyes. A previously denied claim will be reopened if new and material evidence is submitted in support thereof. 38 U.S.C.A. § 5108. "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 the 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 evidence submitted since the November 1984 decision includes private medical records, Social Security records, VA medical records, a February 1993 statement from the veteran's sister, and VA examination reports. A. Skin Disability An October 1993 VA examination report indicates that the veteran had excoriations with scarring and small milial cysts, predominately on the face. There were some lesions on the arms and posterior shoulders. The lesions were probably neurotic excoriations from the veteran removing the milial cysts. The VA examiner noted that the milial cysts may have been connected with previous furunculosis and/or Agent Orange exposure. The examiner stated that the lesions may be connected with the skin problems noted in service. Since this medical evidence reveals a possible connection between the veteran's current skin disability and a skin disability during service, it is clearly new and material. Consequently, the veteran's claim for service connection for a skin disability is reopened. B. Eye Disability The medical evidence received since the November 1984 Board decision continues to show the presence of right eye disability many years after service. Also noted is an unexplained impairment of the veteran's left eye vision. The medical evidence added to the record since the prior denial includes no medical evidence suggesting the presence of eye disability until years after service or suggesting that the claimed eye disability is etiologically related to service or service-connected disability. Consequently, the medical evidence added to the record is not material. The veteran's statements and his sister's February 1993 statement to the effect that the veteran's current eye disability is etiologically related to service are not material since lay persons are not competent to render opinions concerning medical diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, reopening of the claim for service connection for eye disability is not warranted. ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. Entitlement to service connection for neuropathy of the lower extremities is denied. Entitlement to service connection for stomach disability is denied. Entitlement to service connection for irregular heartbeat is denied. Entitlement to service connection for sinusitis is denied. Entitlement to service connection for hearing loss is denied. New and material evidence not having been received, reopening of the claim for service connection for an eye disability is denied. Because new and material evidence has been submitted, reopening of the veteran's claim for service connection for skin disability is granted. REMAND The aforementioned medical opinion suggesting that the veteran's skin disability is etiologically related to service is sufficient to well ground the claim, but is not adequate for adjudication purposes since the examiner did not provide an assessment of the likelihood that the disability is etiologically related to service. In light of these circumstances and in view of the Board's reopening of the claim for service connection for skin disability, the reopened claim is REMANDED to the RO for the following actions: 1. The veteran should be requested to provide the names, addresses, and approximate dates of treatment for all health care providers, including VA, who may possess additional records pertinent to his claim for service connection a skin disability. After obtaining any necessary authorization, all health care providers identified should be asked for copies of the veteran's clinical records not currently on file. Any records obtained should be associated with the claims folders. 2. After the above, the RO should arrange for a VA examination of the veteran by a dermatologist to determine the nature, extent, and etiology of any currently present skin disability. All indicated studies should be performed, and the claims folders must be made available to and reviewed by the examiner. With respect to any chronic skin disorders found, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder(s) is(are) etiologically related to a skin disorder present in service and/or to the veteran's exposure to Agent Orange in service. The rationale for all opinions expressed should be provided. 3. Thereafter, the RO should undertake any other indicated development and then adjudicate on a de novo basis the reopened claim for service connection for skin disability. 4. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case and provide the veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. SHANE A. DURKIN Member, Board of Veterans' Appeals