judge_norm: JOHN J CROWLEY

condition: thyroid

text:
��Citation Nr: 19126000

Decision Date: 04/09/19	Archive Date: 04/05/19

DOCKET NO. 17-65 458

DATE:	April 9, 2019

ORDER

Entitlement to service connection for hypertension, secondary to acquired psychological condition (including anxiety), is granted.

Entitlement to service connection for a thyroid condition is denied.

Entitlement to an increased rating, in excess of 30 percent, for an acquired psychological condition (including anxiety), is denied.

REMANDED

Entitlement to service connection for dysfunctional uterine bleeding is remanded.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran s favor, her hypertension is proximately due to/aggravated beyond its natural progression by her service-connected acquired psychological condition (including anxiety).

2. The preponderance of the evidence of record is against finding that the Veteran has had a thyroid condition at any time during or approximate to the pendency of the claim.

3. The severity, frequency, and duration of the Veteran s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity.

CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension as secondary to an acquired psychological condition (including anxiety) are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

2. The criteria for service connection for a thyroid condition are not met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

3. The criteria for an initial disability rating in excess of 30 percent for an acquired psychological condition (including anxiety) have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1986 to February 1993. The Veteran appeals a May 2013 and June 2015 rating decisions from the Department of Veteran Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

The Board notes that a May 2013 rating decision denied service connection for a dysfunctional uterine bleeding, thyroid condition, and hypertension. However, the RO noted that the Veteran s service treatment records (STRs) were incomplete. Additional STRs were submitted that were not considered in the May 2013 rating decision.  As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial.  Rather, the claim is simply reviewed on a de novo basis.  38 C.F.R. � 3.156(c)(1)(i).  See generally Turner v. Shulkin, 29 Vet. App. 207, 210 (2018).

Further, a May 2015 rating decision granted an increased disability rating from 10 to 30 percent for the Veteran s anxiety condition effective November 30, 2009. The Veteran timely appealed the 30 percent rating.

The Veteran declined a Board hearing in her December 2017 VA Form 9.

Service Connection

The Veteran asserts that her thyroid condition is connected to service. Second, the Veteran contends that her hypertension is proximately caused and/or aggravated

Direct service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. � 1110, 1131; 38 C.F.R. � 3.303(a).

Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. � 3.310.

Hypertension

Here, the Veteran complained of high blood pressure during service. See January 1992 Service Treatment Record.

The Veteran underwent a VA examination in June 2010. The VA examiner noted the Veteran had a diagnosis of hypertension. The VA examiner opined that the Veteran s hypertension was not related to military service.

An April 2014 private medical opinion reported,  it is my opinion that [the Veteran s] hypertension condition is related to or aggravated by her adjustment disorder with anxiety and depressed mood.

In an April 2015 VA psychological examination, the Veteran reported that her heart rate increases when becoming anxious.

The Veteran underwent another VA examination in May 2015. The VA examiner opined that the Veteran s hypertension was not a result of service because the exact etiology of hypertension was unclear, and the possibility of several risk factors that may cause hypertension. Further, the VA examiner added that there was no evidence to suggest that an anxiety disorder causes hypertension. As such, hypertension was not secondarily caused or aggravated by the Veteran s service connected anxiety disorder.

In sum, the Board acknowledges the differing opinions proffered by two equally qualified medical professionals and concludes that one opinion does not outweigh the other.  The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran s hypertension was caused or her acquired psychological condition (including anxiety).  The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant.  See U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990).  Therefore, the Board finds that service connection for hypertension and her anxiety disorder is warranted.

Thyroid

Here, the Veteran was found to have a mild thyroid enlargement in service. See January 1992 Service Treatment Record.

The Veteran underwent a VA examination in June 2010.  Although the January 1992 service treatment record showed an impression of thyromegaly (i.e. enlarged thyroid), the VA examiner opined that there was  no disease found.  To be considered for service connection, a claimant must first have a disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Consequently, without a current disability, service connection is not warranted.

Increased Rating

The Veteran asserts that her anxiety disability is in a condition to warrant a disability in excess of 30 percent.

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. � 1155; 38 C.F.R. � Part 4.  Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned.  38 C.F.R. � 4.7.  When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran s favor.  38 U.S.C. � 5107(b).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as  staged ratings,  whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the Board finds that staged ratings are not necessary in the Veteran s case.

Acquired Psychological Condition (including anxiety)

Here, the Veteran contends that her anxiety disorder is in a condition to warrant a rating in excess of 30 percent.

Mental disabilities are rated under 38 C.F.R. � 4.130 s general rating formula for mental disorders (including PTSD). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating requires occupational and social impairment with reduced liability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly-learned material, forgetting to complete tasks); impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

Next, a 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A total occupational and social impairment equates to a 100 percent rating.

The Veteran underwent a VA examination in May 2010. The Veteran reported that she had been working the same job for six years and has been married twice.  The Veteran added that she does not approach people directly preferring to wait until she can  do it without being too upset.  The Veteran stated that she is close to her family and has  five very close friends.  She remains in regular contact with these friends. The VA examiner noted no impairments to communication/thought processes, impaired impulse control, sleep, nor the presence of delusions and hallucinations. The VA examiner found mild depression and anxiety.

In April 2015, the Veteran underwent a new examination.  During the examination, the Veteran was on medical leave resulting from a total knee replacement. But, she still is working, and has been in the same job since 2011. The Veteran reported that she s friendly with people in her neighborhood and sees friends once or twice a week. The Veteran enjoys shopping and walking around. She reported times at work when she feels helplessness and hopelessness related to work issues and the fact that she is unable to have children.  No current suicidal or homicidal ideation was reported. The VA examiner observed that the Veteran had the following symptoms: depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The VA examiner opined that the Veteran s anxiety disorder presented an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.

According to an October 2017 buddy statement, the Veteran had work conflicts with her supervisor, and had suicidal thoughts while in service.

Based on the above, the Board finds that the Veteran s anxiety disorder does not warrant a rating in excess of 30 percent. The Veteran remains close to family members and has several close friends. The Veteran meets with friends once or twice a week and is friendly to neighbors.  The Veteran enjoys shopping and walking around and is currently working. No current suicidal or homicidal ideation was reported.  Further, the evidence of record is silent to (for example only) flattened affect, impairment to short- or long-term memory, or difficulty understanding complex commands. As such, the Veteran s anxiety disorder does not show difficulty in establishing and maintaining effective work and social relationships.  This finding does not suggest that she does not have a problem (a 30% disability is very significant).  However, a disability rating for her anxiety disorder, in excess of 30 percent, is denied.

REASONS FOR REMAND

Entitlement to service connection for dysfunctional uterine bleeding is remanded.

The issue of entitlement to service connection for dysfunctional uterine bleeding is remanded for further development. The Veteran underwent a VA examination in June 2010. We find the examination inadequate. Simply, the VA examiner did not provide a clear medical opinion in either direction. The VA examiner opined that if the condition was pre-existing, then it would not be service connected. But, the examiner noted that there is not enough evidence to support whether the Veteran s dysfunctional uterine bleeding pre-existed service.  To be foggier, the VA examiner opined that if dysfunctional uterine bleeding did start, as the Veteran stated, after boot camp, then it would be service connected.

Again, the VA examiner opined there was not enough evidence to decide. Unfortunately, the etiology of dysfunctional uterine bleeding is something a lay individual cannot determine. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, a new VA examination is warranted.

The matter is REMANDED for the following action:

1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record.  If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing.

If possible, the Veteran and his representative are asked to submit these records themselves.

2. Then, the RO should schedule an examination with the appropriate clinician.

a. The examiner should address the etiology of the Veteran s dysfunctional uterine bleeding.

b. The examiner should address the following questions:

i. Did the Veteran s dysfunctional uterine bleeding clearly and unmistakably (leading to an undebatable conclusion) exist prior to service?

ii. Was the Veteran s dysfunctional uterine bleeding clearly and unmistakably (leading to an undebatable conclusion) not aggravated during service?

iii. If the Veteran s dysfunctional uterine bleeding did not clearly and unmistakably pre-exist service and not aggravated during service, the VA examiner should opine whether the Veteran s dysfunctional uterine bleeding is at least as likely as not (50% probability) related to service.

If the examiner can not answer these questions without resorting to speculation, they should so indicate.

(Continued on the next page)

3. Then, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.

John J. Crowley

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	Timothy A. Campbell, Associate Counsel


series: legacy

judge_norm: KEITH W ALLEN

judge_role: Veterans Law Judge

disposition: remanded

condition: shoulder

condition: back

condition: hip

condition: respiratory

condition: hypertension

condition: liver

condition: neck

condition: radiculopathy

condition: ptsd

benefit: smc

text:
��Citation Nr: 19127000

Decision Date: 04/08/19	Archive Date: 04/08/19

DOCKET NO. 17-30 337

DATE:	April 8, 2019

REMANDED

Entitlement to service connection for otitis media is remanded.

Entitlement to service connection for edema is remanded.

Entitlement to an initial rating in excess of 10 percent for left shoulder bursitis prior to February 12, 2016 and in excess of 20 percent thereafter is remanded.

Entitlement to an initial rating in excess of 20 percent for cervical spine disc disease status post C5-7 fusion is remanded.

Entitlement to an initial rating in excess of 20 percent for thoracolumbar disc disease is remanded.

Entitlement to a compensable initial rating under Diagnostic Code 5251 for left hip strain is remanded.

Entitlement to an initial rating in excess of 10 percent under Diagnostic Code 5252 for left hip strain is remanded.

Entitlement to a compensable initial rating for atypical chest pain is remanded.

Entitlement to a compensable initial rating for sinusitis is remanded.

Entitlement to an initial rating in excess of 50 percent for restrictive pulmonary disease with sleep apnea is remanded.

Entitlement to a compensable initial rating for hypertension is remanded.

Entitlement to a compensable initial rating for dysphagia is remanded.

Entitlement to a compensable initial rating for incisional and umbilical hernia repair is remanded.

Entitlement to an initial rating in excess of 20 percent for Hepatitis C is remanded.

Entitlement to a compensable initial rating for hypogonadism is remanded.

Entitlement to an initial rating in excess of 40 percent for benign prostatic hypertrophy is remanded.

Entitlement to an initial rating in excess of 20 percent for cervical radiculopathy with carpal tunnel syndrome of the left upper extremity is remanded.

Entitlement to an initial rating in excess of 70 percent for cervical radiculopathy with carpal tunnel syndrome of the right upper extremity is remanded.

Entitlement to an initial evaluation in excess of 10 percent for radiculopathy (w/fasciculations & myofascial pain syndrome) of the left lower extremity is remanded.

Entitlement to an initial rating in excess of 10 percent for radiculopathy (w/fasciculations & myofascial pain syndrome) of the right lower extremity is remanded.

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depression is remanded.

Entitlement to Special Monthly Compensation (SMC) based on a higher level of aid and attendance (L rate) is remanded.

Entitlement to SMC based on loss of use of both lower extremities is remanded.

Entitlement to SMC based on loss of use of the right upper extremity is remanded.

REASONS FOR REMAND

The Veteran had active duty for training (ACDUTRA) from February 1992 to July 1992 and active duty (AD) from December 2006 to February 2014.

The record reflects that the Veteran was scheduled for VA examinations in June 2018; however, the examination notification letter was returned to VA by the United States Postal Service as undeliverable with no forwarding address.  The claims file does not reflect that VA sent additional notifications to another address or that the Veteran s examinations were rescheduled.  A February 8, 2019 electronic email record shows the regional office (RO) attempted to contact the Veteran, but a response was not noted.

It is the appellant s responsibility to keep VA advised of his whereabouts.  There is no burden on the part of the VA to turn up heaven and earth to find [the appellant].  See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  However, in the present situation, the record reflects that the Veteran was treated at the Lake City VA Medical Center (VAMC) as recently as December 2018 and reported at that time that he had  recently moved to the [V. area in Georgia]  and therefore wanted to establish care at the Lake City VAMC.  Moreover, a Georgia address is listed on a February 2019 VA clinical record.

The claims file does not reflect that the RO attempted to notify the Veteran at his new address in Georgia of the VA examinations.  Moreover, the record reflects that in February 2019 a supplemental statement of the case (SSOC) was mailed to two prior addresses in South Carolina, but not to the new address in Georgia.

The Board also sees the Veteran no longer has representation, so that is not a viable means of contacting him or learning of his new address.

Considering all of this, the Board finds that the Veteran s examinations should be rescheduled and him contacted at his new address in Georgia concerning them (this new address can be found on the February 1, 2019 VA clinical record). Also, if his claims continue to be denied, a copy of the SSOC should be mailed to his new address   especially since the prior one sent was undeliverable since sent to his old addresses.

The matters are REMANDED for the following action:

1. Reschedule the Veteran s examinations and provide him notification of these examinations at his new address in Georgia (this new address can be found on the February 1, 2019 VA clinical record), unless he indicates that he no longer wants to pursue his claims or appear for examinations.

2. Mail a copy of the February 2019 SSOC to the Veteran s address in Georgia as noted in the February 1, 2019 VA clinical record and notify him that it was issued after he failed to appear for his previously-scheduled VA examinations.

3. Also provide him another SSOC, at his new address, if his claims continue to be denied based on all additional evidence received or otherwise obtained since that prior SSOC   including regarding the VA examinations that are being rescheduled.

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	T. Wishard


judge_norm: M H HAWLEY

disposition: denied

condition: knee

text:
��Citation Nr: 19128000

Decision Date: 04/11/19	Archive Date: 04/10/19

DOCKET NO. 14-15 419

DATE:	April 11, 2019

ORDER

Entitlement to service connection for temporomandibular joint (TMJ) dysfunction is denied.

REMANDED

Entitlement to service connection for left knee disability is remanded.

FINDING OF FACT

The competent medical evidence does not reflect a current diagnosis of TMJ dysfunction.

CONCLUSION OF LAW

The criteria for service connection for TMJ dysfunction are not met. 38 U.S.C. �� 1101, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty June 1981 to August 1982. These matters come to the Board of Veterans  Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In August 2017, the Veteran withdrew her hearing request.

The agency of original jurisdiction (AOJ) substantially complied with the Board s February 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran s complete service treatment records are unavailable despite VA efforts to obtain them, and further attempt to find such records would be futile. See VA Formal Finding on the Unavailability of Service Records (September 27, 2012). Under the circumstances, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the appellant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).

Service Connection for TMJ Dysfunction

The Veteran asserts that she has TMJ dysfunction related to her active service.

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a).

However, after a review of the medical evidence of record (albeit scant), there is no evidence of a diagnosis for TMJ dysfunction in the post-service medical records. Notably, there is no evidence that the Veteran has made complaints of or received any treatment for the condition at any time since service.

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. � 1131. In the absence of proof of a current diagnosis of TMJ dysfunction, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Board notes that the Veteran may sincerely believe that she has TMJ dysfunction that is causally related to active service. However, the probative medical evidence with regard to the Veteran s claimed TMJ dysfunction is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an opinion with regard to diagnosis of the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make such a finding.

For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran s claim of entitlement to service connection for TMJ dysfunction. Thus, her claim must be denied. There is no reasonable doubt to be resolved as to the issue. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

Service Connection for Left Knee Disability

In contrast to the service connection claim for TMJ dysfunction, the Veteran has a history of treatment and diagnoses for various left knee conditions, including left knee degenerative arthritis, painful left total knee with snapping sensation, and painful left knee unicondylar arthroplasty, for which she underwent left unicondylar knee replacement in April 2005, arthroscopic debridement of left total knee in December 2005, and revision of left total knee arthroplasty in March 2006.

Per the available medical evidence of record, the Veteran most recently underwent a left knee surgery In April 2013. She has indicated that she injured her left knee in service, with related symptoms persisting since that time. She has not been afforded a VA examination in connection with her claim for left knee condition.

In light of the evidence of record, the Board finds that the Veteran should be afforded a VA examination and medical opinion to determine the nature and etiology of any left knee disability that may be present.

The matter is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of any left knee disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran s lay assertions.

It should be noted that the Veteran s complete service treatment records appear to be unavailable.

The examiner should note that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation.

The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left knee disability that is causally or etiologically related to her military service, to include any injury or symptomatology therein. The examiner should specifically consider the Veteran s statements regarding in-service left knee injury.

A clear rationale for all opinions is required and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

M. H. HAWLEY

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	A. Norwood, Associate Counsel


judge_norm: H SEESEL

condition: skin

text:
��Citation Nr: 19129000

Decision Date: 04/16/19	Archive Date: 04/15/19

DOCKET NO. 15-44 395

DATE:	April 16, 2019

REMANDED

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for Hepatitis C is remanded.

Entitlement to service connection for a skin rash is remanded.

Entitlement to a compensable disability rating prior to January 7, 2019 for amebiasis and a rating in excess of 10 percent for the period beginning January 7, 2019 is remanded.

Entitlement to a compensable disability rating for a skin rash on the right ankle is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1969 to July 1970, from October 1971 to October 1973, and from August 1974 to August 1976.  The Veteran was awarded the Gallantry Cross and the Combat Action Ribbon, among other decorations.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran attended a June 2018 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

1. Entitlement to service connection for hypertension is remanded.

The Veteran claims that he has hypertension related to his active duty service.

The Veteran testified that he is not taking any medication for hypertension and that he could not remember when a doctor first told him that he had high blood pressure.

However, VA treatment records reflect that the Veteran was diagnosed with  elevated blood pressure reading without hypertension  and that the Veteran has taken medication to control his blood pressure.  Private treatment records reflect an assessment of hypertension and suggested it was diagnosed around 2008.  The Veteran was not afforded a VA examination for this issue.  As there is evidence of treatment for hypertension but insufficient medical evidence in the claims file to adjudicate the case, a remand is required to adjudicate the case.  A VA exam is necessary to obtain an opinion as to the relationship, if any, between the hypertension and the Veteran s active duty service. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

2. Entitlement to service connection for Hepatitis C is remanded.

The Veteran believes that he may have contracted Hepatitis C while coming in contact with communal toilets during Vietnam.  The Veteran testified that he was first diagnosed with Hepatitis C during an examination related to his employment near Beaumont, Texas in 1984, and that he received medical treatment in the 1990s and was also diagnosed with Hepatitis C at that time.  Those records are not associated with the claims file.

The medical records currently in the claims file are inconclusive regarding whether the Veteran has a current diagnosis for Hepatitis C, although lab tests ordered by VA medical providers, along with testimony from the Veteran, indicate that he may have the disease.  Also, assuming a diagnosis is confirmed, there is no medical evidence providing the etiology of any Hepatitis C infection.

A remand is required to obtain any outstanding private or VA treatment records and to schedule the Veteran for a VA examination related to this claimed disability.

3. Entitlement to service connection for a skin rash is remanded.

The Veteran is claiming entitlement to service connection for a skin rash in his groin area.  The Veteran believes that this rash may be related to his service at Camp Lejeune or related to his service-connected rash on his ankle, or alternatively, related to  jungle rot  that he claims to have suffered during his service in Vietnam.

A veteran who, during active military, naval, or air service, served 30 days (consecutive or nonconsecutive) or more at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987, shall be presumed to have been exposed during such service to contaminants in the water supply, unless there is affirmative evidence to establish that the veteran was not exposed to any such contaminant during that service. Service at Camp Lejeune includes any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina. 38 C.F.R. � 3.307 (a)(7)(iii).  The Veteran s Service Personnel Records indicate that he served more than 30 days at Camp Lejeune during the applicable period, therefore, exposure to contaminants in the water supply at Camp Lejeune is conceded.

As there is insufficient medical evidence in the claims file regarding the etiology of the Veteran s rash in his groin area, a VA examination is required to confirm the Veteran s diagnosis and to provide an opinion regarding the etiology of any skin disability in the Veteran s groin area, to include whether it is related to his service or exposure to contaminants in the water supply at Camp Lejeune or whether it is related to his service-connected skin rash on his ankle.

4. Entitlement to a compensable disability rating prior to January 7, 2019 for amebiasis and a rating in excess of 10 percent for the period beginning January 7, 2019 is remanded.

The Veteran was service-connected at a noncompensable rating for amebiasis which was diagnosed during his active duty service.

In March 2019, the RO issued a Rating Decision providing the Veteran with a 10% disability rating for amebiasis under Diagnostic Code 7321 effective January 7, 2019.

There is insufficient medical evidence in the claims file to adjudicate this issue.  The Veteran testified that he was feeling symptoms related to his amebiasis and was prescribed medication by his primary care doctor which was ineffective.  Therefore, a remand is required for the RO to attempt to obtain the Veteran s medical records which may indicate when during the period of appeal his symptoms began.

5. Entitlement to a compensable disability rating for a skin rash on the right ankle is remanded.

The Veteran also seeks a compensable disability rating for his service-connected skin rash on his right ankle.  The Veteran is currently rated for his skin disability at a noncompensable rating under Diagnostic Code 7806.

The Veteran underwent a VA examination in February 2013 and February 2019.  The VA examiner in both examinations reported that the Veteran suffered received treatment for the skin rash located on his ankle using topical corticosteroids constantly or nearly constantly.

In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the United States Court for the Federal Circuit (Federal Circuit) found that some applications of topical corticosteroids may constitute systemic therapy under Diagnostic Code 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case.

Additionally, the United States Court of Appeals for Veterans Claims (CAVC) discussed how to consider topical treatments and the similarity of such treatments to corticosteroids and other immunosuppressive drugs when adjudicating the disability ratings assigned for skin disabilities under the version of DC 7806 in effect prior to August 13, 2018. See Burton v. Wilkie, 30 Vet. App. 286 (2018).  On July 13, 2018, VA issued a final rule amending its regulations covering skin disabilities. The effective date of this final rule is August 13, 2018. Under the final rule, claims pending prior to the effective date of this final rule will be considered under both old and new rating criteria. Because this appeal involves consideration of the version of DC 7806 in effect prior to August 13, 2018, the Board finds that Burton is applicable here.

The Court held in Burton that the Board is required to consider two questions, in any order, when determining whether topical treatment for a skin disorder constitutes  systemic therapy such as corticosteroids or other immunosuppressive drugs  under the pre-August 13, 2018 version of DC 7806. Id. The Board must determine whether the topical treatment operates by affecting the body as a whole in treating a Veteran s skin condition. If the treatment is clearly systemic, then the Board also must determine whether the given treatment is  like  a corticosteroid or other immunosuppressive drug. The Court noted that the questions of whether a specific topical treatment affects the body as a whole and whether a treatment is  like  a corticosteroid or immunosuppressive drug are factual questions which may require medical evidence, including a VA opinion or referral to medical dictionaries, to answer. Id.

In light of Burton, the Board finds that, on remand, this claim must be sent to an appropriate VA clinician to determine whether the Veteran s constant or near-constant use of topical corticosteroids operates by affecting the body in treating his service-connected eczema.

Therefore, a remand is necessary to obtain a medical opinion regarding whether the Veteran s use of topical corticosteroids in this case constitutes a systemic therapy or a topical therapy.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records for the Veteran.

2. Ask the Veteran to complete a VA Form 21-4142 for any physician or facility which provided treatment for any of his claimed disabilities, including the Veteran s 1984 employment-based health examination and private clinic he visited in the 1990s. Make two requests for the authorized records from any physician or facility, unless it is clear after the first request that a second request would be futile.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension disability.  The examiner must opine as to the following:

a) whether it is at least as likely as not the Veteran s hypertension is related to an in-service injury, event, or disease, or,

b) whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.

4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disability in the Veteran s groin area.  The examiner must opine whether the Veteran has a current skin disability in his groin area and, if so, the examiner should opine:

a) whether it is at least as likely as not related to an in-service injury, event, or disease, or,

b) whether it is at least as likely as not related to contaminants in the water during service at Camp Lejeune, or,

c) whether it is at least as likely as not related to the  jungle rot  he claims that he suffered from while deployed in Vietnam, or,

d) whether it is at least as likely as not (1) proximately due to or aggravated beyond its natural progression by the Veteran s service-connected skin rash on this ankle.]

(Continued on the next page)

5. Obtain an addendum opinion from a qualified clinician concerning the Veteran s constant or near-constant use of topical corticosteroids to treat his service-connected eczema as noted during the Veteran s February 2013 and February 2019 VA examinations. Following a review of the claims file, the clinician is asked to state whether the Veteran s constant or near-constant use of topical corticosteroids operates by affecting the body as a whole in treating his service-connected eczema, e.g., whether it is systemic. A rationale is needed for any opinions expressed.

H. SEESEL

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	A. Boal, Associate Counsel


judge_norm: S BUSH

text:
��Citation Nr: 19130000

Decision Date: 04/17/19	Archive Date: 04/17/19

DOCKET NO. 18-10 788

DATE:	April 17, 2019

REMANDED

Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded.

Entitlement to an initial rating in excess of 10 percent for deviated nasal septum is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from May 1979 to September 1996.  This matter comes before the Board of Veterans  Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a lumbar strain and deviated nasal septum and assigned noncompensable ratings effective, July 30, 2013.  In a December 2017 rating decision, the RO increased the ratings each to 10 percent, effective July 30, 2013.

In his January 2018 VA Form 9, the Veteran expressed his satisfaction with the assigned ratings for his right wrist and bilateral foot disabilities, thus these issues are no longer on appeal and are not before the Board.

1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded.

The Veteran was afforded VA examinations in May 2015 and March 2016; however, these reports are insufficient in light of the recent decisions of the Court of Appeals for Veteran s Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017), warranting a new examination on remand.  Updated treatment records should also be secured.

2. Entitlement to an initial rating in excess of 10 percent for deviated nasal septum is remanded.

The Veteran filed a timely Notice of Disagreement (NOD) with the June 2015 rating decision that granted service connection for deviated nasal septum.  See May 2016 NOD.  To date, a Statement of the Case (SOC) has not been issued on this matter and must be provided on remand.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. Obtain any outstanding relevant private treatment records.

3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his lumbar spine disability.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.

(a)	Please provide an opinion as to the full range of motion of the Veteran s back in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing.  Please specify range of motion measurements in all areas outlined above.  If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

(b)	Considering the Veteran s reported history, please also provide an opinion describing functional impairment of the Veteran s back disability, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion.  If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician s Guide to estimate,  per [the] veteran , what extent, if any, flare-ups affect functional impairment.  The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation.

(c)	Determine whether there is separate neurologic condition associated with the Veteran s lumbar spine disability.  The examiner should comment on the Veteran s reports of disc slipping and sciatica conditions that cause muscle spasms, severe pain, and abnormal gait/spinal contour, lasting several days during which he is unable to stand or walk (see January 2018 VA Form 9); radiculopathy (see February 2016 VA treatment record); and constant numbness in his left foot associated with his history of back pain (see April 2016 VA treatment record), and complete any necessary testing determine the nature and severity of such impairment.

A complete rationale must be given for all opinions expressed.

4. Separately, issue a SOC addressing the issue of entitlement to an initial rating in excess of 10 percent for deviation of nasal septum.  Advise the Veteran that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board.

S. BUSH

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	R. Asante, Associate Counsel


judge_norm: L CHU

text:
��Citation Nr: 19132000

Decision Date: 04/25/19	Archive Date: 04/24/19

DOCKET NO. 17-14 868

DATE:	April 25, 2019

ORDER

The appeal of whether a substantive appeal was timely filed in response to a February 2015 statement of the case (SOC) is denied.

FINDINGS OF FACT

1.  The Veteran did not file a substantive appeal within 60 days of the date on which the February 6, 2015 SOC was sent to the Veteran.

2.  The Veteran did not submit a request for an extension of the time limit for filing a substantive appeal prior to the expiration of the time limit for filing the substantive appeal.

CONCLUSION OF LAW

A timely substantive appeal was not filed.  38 U.S.C. � 7104, 7105; 38 C.F.R. �� 20.200, 20.302(b), 20.305, 20.1103.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a February 2014 determination by a Department of Veterans Affairs (VA) Regional Office (RO) Education Center.  The issue presented to the Board is timeliness of appeal.

In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.

Whether a substantive appeal was timely filed in response to a February 2015 SOC.

The Agency of Original Jurisdiction (AOJ) sent the Veteran an SOC on February 6, 2015 regarding an overpayment of Tuition Assistance Top Up benefits.  The AOJ received a substantive appeal from the Veteran on September 7, 2016.  As the Veteran did not perfect a timely appeal, the issue of validity of the debt due to Tuition Assistance Top Up benefit overpayments is not currently before the Board.

The procedural background of the issue on appeal emanates from February 2014 determination by a VA RO Education Center regarding the Veteran s entitlement to payments under the Tuition Assistance Top Up program.  In January 2012, the Veteran requested an audit of his Tuition Assistance Top Up payments and resulting overpayment.  In March 2012, the Veteran received a letter regarding his entitlement under the Tuition Assistance Top Up, Montgomery GI Bill, and Post-9/11 GI Bill benefit programs.  In March 2013, the Veteran submitted a notice of disagreement.  A second determination letter was sent in February 2014, which informed the Veteran that if he wished to continue to appeal, he should submit a statement in writing.  In October 2014, VA received the Veteran s statements disagreeing with the February 2014 determination, including a prematurely submitted and signed VA Form 9 dated September 26, 2014, before an SOC was issued.  The RO construed the prematurely submitted VA Form 9 as a notice of disagreement (NOD) and subsequently issued an SOC in February 2015.  The February 2015 SOC advised the Veteran that if he wished to appeal to the Board of Veterans Appeals, he should return the enclosed VA Form 9 within 60 days of the date the SOC was mailed, i.e. April 6, 2015.  The Veteran then filed a VA Form 9 that was received by VA on September 7, 2016.

In correspondence dated October 2016, the RO informed the Veteran that his September 2016 Form 9 was untimely so as to constitute a substantive appeal of the adverse February 2014 determination, and that the prior decision on his claim was final.  In January 2017, the Veteran submitted a NOD with the October 2016 correspondence determination.  A February 2017 SOC confirmed the RO s earlier finding of lack of timeliness, and the Veteran filed a VA Form 9 that was received on March 16, 2017.

The Veteran contends that his September 2016 VA Form 9 was identical to the September 2014 VA Form 9 and as such he should not have to resubmit a form VA already has.  He also argues that he submitted his VA Form 9 in September 2014 and that the February 2015 SOC never notified him that he had to resubmit his previously submitted September 2014 VA Form 9.  The Veteran further contends that he was repeatedly advised by VA employees that his appeal was open and would not be closed for one and half year past April 2015.

An appeal consists of a NOD filed within one year of the notice of the decision being appealed, and after an SOC has been furnished, a timely-filed substantive appeal. 38 U.S.C. � 7105; 38 C.F.R. � 20.200. A substantive appeal is timely if received within 60 days of the date of the SOC, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. � 20.302(b).  Timely filing of the substantive appeal within 60 days of the date of the SOC perfects the appeal.  If an appeal of a decision is not perfected, the decision becomes final.  38 C.F.R. �� 20.200, 20.1103.  A substantive appeal postmarked prior to expiration of the proscribed period will be accepted as having been timely filed.  38 U.S.C. � 7105(b)(1); 38 C.F.R. � 20.305(a).  In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included.  38 C.F.R. � 20.305(b).

The relevant SOC was issued on February 6, 2015.  Because this is more than one year after the notification of the decision being appealed, the Veteran had 60 days from February 6, 2015 to submit his appeal, i.e. April 6, 2015.  In this case, the Veteran s Form 9 was received on September 7, 2016, which is well beyond the required 60-day response period.  The Veteran did not request an extension of time, or submit any evidence or correspondence within the 60-day period that could be interpreted as a request to continue an appeal of the February 2014 determination.  Therefore, Veteran s appeal is untimely, and the February 2014 determination became final.  38 C.F.R. �� 20.200, 20.1103.  Accordingly, the remaining issue is whether the Veteran s October 2014 VA Form 9 (dated September 26, 2014), which was submitted prior to the issuance of a SOC, should be construed as a substantive appeal.

First, the Board notes that generally a claimant files a substantive appeal after VA issues an SOC.  38 U.S.C. � 7105(a), (d)(1), (d)(3).  In Archbold v. Brown, 9 Vet. App. 124 (1996), the Court accepted a statement submitted 10 months prior to the RO's issuance of an SOC, as a substantive appeal.  Thus, the Board acknowledges that, in some circumstances, a statement submitted prior to the issuance of an SOC may be accepted as a substantive appeal.  However, the Court has not mandated that every prematurely received Form 9 be accepted as a substantive appeal.  As noted in Rodriguez v. Shinseki, No. 09-3655, 2011 WL 1485471 (Vet. App. Apr. 20, 2011),  Archbold does not mandate a conclusion that every prematurely filed [VA Form 9] or its equivalent be accepted as a substantive appeal.  To hold otherwise would pervert the statutory scheme, which clearly contemplates a multi-step process for bringing an appeal the board.

In Gibson v. Peake, 22 Vet. App. 11 (2007), similar to the present case, the RO received correspondence from the appellant that included a VA Form 9 upon which he had checked boxes indicating that he wanted to appeal all of the issues listed on the SOC that VA had sent him; however, at that time, VA had not yet prepared an SOC because his claim was not in appellate status. In Gibson, as here, the appellant had also attached an explanation sheet of why VA had decided his case incorrectly.  (In the present claim, the Veteran asserts that his TATU and Chapter 33 benefits were improperly calculated.)

In Gibson, the court found that  [a]lthough the appellant did use a substantive appeal form, the attached letter and forms indicates that the VA Form 9 did not stand alone.  Similarly, the tenor of the appellant s arguments on the attached sheets is consistent with the regulatory description of correspondence that constitutes a NOD.... Thus, it was reasonable and appropriate for the RO to construe the appellant s submission collectively as a NOD, which the RO unquestionably did.   The Court also noted that when the RO sent the appellant the SOC, the cover letter stated that the SOC was in response to the recent NOD of a VA decision, and the SOC itself stated that VA received a NOD.  In the present claim, as in Gibson, the Veteran simultaneously submitted the VA Form 9 with an attached document dated the same date.  Also, as in Gibson, none of the documents generated by the RO contained information indicating to the appellant that the RO had received or accepted a substantive appeal from him.  Also, here, as in Gibson, the cover letter stated that the February 2015 SOC was in response to the recent NOD of a VA decision, and the SOC itself stated that VA received a NOD.

The Board finds that the VA Form 9 with an attached document received by VA in October 2014 was a NOD and was not a substantive appeal.  The VA Form 9 and attached letter and documents argue that the VA misinformed him about how Chapter 33 and Chapter 31 benefits would be charged along with his Tuition Assistant Top Up payments.  Although the submission was on multiple pieces of paper, the Board concludes that it cannot be reasonably construed as to be two separate documents, independently sufficient in their own right to constitute both a NOD and a substantive appeal.  The documents indicate that the Veteran believed that his benefits were charged incorrectly and that he was entitled to three more months of benefits.

Even if the October 2014 correspondence met the regulatory content requirements of a substantive appeal with regard to specificity, the Board finds that the circumstances of the filing indicate that the Veteran intended to file a NOD.

The Board notes that not only was the October 2014 correspondence filed prior to the February 2015 SOC, but also that there was no document filed prior to the SOC which could have been construed as a NOD of the February 2014 determination.  In addition, the documents filed in October 2014 were filed simultaneously.  As the Court has noted, the VA regulations are clear that the appeals process is a multi-step process.  The Board finds that to allow the Veteran to simultaneously file a NOD with a substantive appeal, without the issuance of an SOC, and without any other correspondence from the Veteran which could be construed as a NOD or substantive appeal, would be to pervert the multi-step process.  See Rodriguez v. Shinseki, supra.  In looking at the circumstances of the Veteran s correspondence, the Board finds it significant that it was submitted after the issuance of the February 2014 decision, with no intervening correspondence from VA.  Thus, the timing of the Veteran s correspondence reflects that it was intended to be a NOD.  In this regard, the Board notes that, prior to March 24, 2015, a NOD need not be filed on any particular form and may even be filed on a substantive appeal form, as in this case, so long as it meets the content requirements for a NOD.  38 C.F.R. � 20.201; see Archbold v. Brown, 9 Vet. App. 124, 131 (1996) (citing Malgapo v. Derwinski, 1 Vet. App. 397, 398-99 (1991) (holding, in portion not overruled by Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), that a substantive appeal form can function as NOD as to claim if there is no other NOD as to that claim)); Zevalkink v. Brown, 6 Vet.App. 483, 489 (1994) (en banc) (same).

In the present claim, the RO accepted the October 2014 VA Form 9 with the attachment as a NOD.  Furthermore, the Veteran was notified in the February 2015 SOC of how to complete his appeal, and that his NOD had merely been the first step.  He was also notified that if VA did not hear from him again, either in 60 days from the date of the February 2015 letter or within one year of the February 2014 decision, his claim would be closed.  The Board has looked at both the content and the circumstances surrounding the correspondence received by VA in in October 2014 and finds that, taken together, it constitutes a NOD and not a substantive appeal.

While VA is granted the authority to waive the issue of timeliness in the filing of a substantive appeal, such a waiver is not warranted in the present fact situation.  See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding that, because an issue was treated as if it were timely perfected for more than five years before being raised by the Board in the first instance, VA had waived any issue concerning timely filing of the substantive appeal).  As distinguished from the situation in Percy, at no time has VA failed to recognize the absence of a timely substantive appeal or proceeded to address the issue on the merits as if a timely substantive appeal had been filed.  Instead, the RO notified the Veteran in October 2016 that the Form 9 received in September 2016 was not timely received and informed him of his appeal rights.

The Board further finds that the matter does not warrant equitable tolling.  See McCreary v. Nicholson, 19 Vet. App. 324 (2005).  As a general matter, equitable tolling pauses the running of, or  tolls,  a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.   Checo v. Shinseki, 748 F.3d 1373, 1376 (2014) (footnote 1, quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)).  The Veteran has not alleged that any extraordinary circumstances beyond his control prevented him from filing his appeal on time.

The Board acknowledges the Veteran s contention that he was misinformed by VA employees that his appeal was still open and would not close until a year and half later than the April 2015 deadline.  In this regard, persons dealing with the government are generally charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance.  See Jaquay v. West, 11 Vet. App. 67, 74 (1998).  Moreover, any VA failure to furnish a claimant or potential claimant any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim for educational assistance will not extend the time periods allowed for these actions.  38 C.F.R. � 21.1033(a).  VA cannot be bound to grant education benefits due to a VA employee misinforming the Veteran regarding eligibility.  Eicher v. Shulkin, 29 Vet. App. 57 (2017).  The fact that the Veteran may have been provided inaccurate information by VA employees and that he determinately relied upon this information does not allow the Board to provide equitable relief.

The Board is sympathetic to the Veteran s contentions and understands his desire to access VA benefits to assist with his educational costs.  However, as this case turns on the timeliness of the VA Form 9, the Board is bound to follow the controlling regulations.  See 38 U.S.C. � 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Therefore, the appeal of whether a substantive appeal was timely filed in response to a February 2015 SOC is denied.  Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  In such cases, the benefit of the doubt provisions as set forth in 38 U.S.C. � 5107(b) do not apply.

L. CHU

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. Bilstein, Associate Counsel


judge_norm: B MULLINS

text: The claim of entitlement to specialty adapted housing benefits, to include reimbursement under 38 U.S.C. § 2101, is remanded.

text:
��Citation Nr: 20001000

Decision Date: 01/07/20	Archive Date: 01/06/20

DOCKET NO. 13-31 494A

DATE: January 7, 2020

REMANDED

The claim of entitlement to specialty adapted housing benefits, to include reimbursement under 38 U.S.C. � 2101, is remanded.

REASONS FOR REMAND

The Veteran had honorable active duty service with the United States Army from June 1967 to June 1970.  The Veteran passed away in June 2012, and the Appellant is his surviving spouse.  The instant matter is on appeal from a March 2013 decision.

The Appellant requested a videoconference hearing in her July 2013 Substantive Appeal.  The first hearing was scheduled for December 2017, but she requested to reschedule due to recent surgical procedures.  The hearing was rescheduled for March 2018, but she contacted the Regional Office prior to the hearing to request to reschedule again due to inclement weather.  The hearing was rescheduled for April 27, 2018, and a notification letter with this date was mailed on April 6, 2018.

The Appellant did not report to the April 27, 2018 hearing.  The April 6, 2018 notification letter was not returned as undeliverable and listed the Appellant s current address.  In June 2018, the Appellant called in response to the April 2018 letter, and spoke with a representative regarding the hearing.  She reported that she did not receive the notification letter, and she was on jury duty at the time of the April 2018 hearing date.  She requested to reschedule the hearing again.  In each of the previous requests to reschedule, the Appellant contacted the Regional Office in advance and provided good cause to reschedule the hearings.  The most recent request to reschedule, however, occurred nearly two months after the Appellant failed to report for her hearing.  While she stated that she did not receive the April 2018 notification letter, she also stated that she had jury duty at the time of the hearing, and thus could not attend.  She did not assert that her address had changed.

The record shows that VA correspondence was sent to the Appellant s address of record, and there is no indication (e.g., returned mail notice) that the letter was undeliverable or that she did not receive notice.   [I]n the absence of clear evidence to the contrary, the [Board] will presume that public officers have properly discharged their duties.   Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004)); see also Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982)) (applying this presumption to  all manner of VA processes and procedures. ).  The Appellant has not shown by clear evidence that she did not receive relevant VA notices, including of her scheduled hearing.  Her statement alone is insufficient to rebut the presumption of regularity.  See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (finding a veteran s statement that he did not receive a mailed notification, standing alone, was insufficient to rebut presumption of regularity).  Thus, the Board finds that good cause has not been shown for failing to appear for the scheduled hearing.  38 C.F.R. � 20.702 (d) ( No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. ).  Consequently, the hearing request is considered withdrawn.  Id. ( If an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. ).

1. The claim of entitlement to specialty adapted housing benefits, to include reimbursement under 38 U.S.C. � 2101 is remanded.

The Board regrets the additional delay, but remand is necessary in order to associate critical documents regarding the Appellant s claim with the electronic case file.

The March 2013 notification letter cites the Appellant s requests for reimbursement of construction expenses from June 2012 and August 2012, as well as supportive materials, including constructions and proof of payments.  Unfortunately, these documents have not been associated with the claims file.  As the August 2012 request underlies the current claim on appeal, documentation supporting this request is necessary prior to adjudication.

The matters are REMANDED for the following action:

1. Ensure that the Appellant s complete Specialty Adapted Housing folder has been associated with the electronic claims file, to include: all applications made for benefits, all supportive documentation, and any communications with the Appellant on these issues.

B. MULLINS

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	H. Fisher, Associate 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.


judge_norm: JONATHAN HAGER

disposition: granted

condition: cancer

text:
��Citation Nr: 20002000

Decision Date: 01/09/20	Archive Date: 01/09/20

DOCKET NO. 16-40 496

DATE: January 9, 2020

ORDER

Entitlement to service connection for prostate cancer and its residuals is granted.

Entitlement to service connection for erectile dysfunction, secondary to prostate cancer on a causation basis, is granted.

Entitlement to service connection for voiding dysfunction, secondary to prostate cancer on a causation basis, is granted.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether the Veteran served in the Republic of Vietnam during the Vietnam War era.

2. The Veteran has been diagnosed with prostate cancer.

3. The Veteran s erectile dysfunction is caused by his prostate cancer.

4. The Veteran s voiding dysfunction is caused by his prostate cancer.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for prostate cancer and its residuals are met. 38 U.S.C. �� 1110, 1116, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for erectile dysfunction, as secondary to prostate cancer on a causation basis, are met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

3. The criteria for service connection for voiding dysfunction, as secondary to prostate cancer on a causation basis, are met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1960 to January 1988. These matters initially came before the Board of Veterans  Appeals (Board) from a December 2014 rating decision.

In September 2017, the Board denied an application to reopen the claim of service connection for prostate cancer and denied entitlement to service connection for erectile dysfunction and nocturia (both to include as secondary to prostate cancer). The Veteran appealed the Board s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court issued a Memorandum Decision in which it set aside the Board s September 2017 decision, in part, and remanded the issues of entitlement to service connection for prostate cancer, erectile dysfunction, and nocturia to the Board for further proceedings consistent with the Memorandum Decision.

As for characterization of the issues on appeal, the Board acknowledges that the agency of original jurisdiction (AOJ) denied the Veteran s claims of service connection for prostate disability (characterized as prostatitis and prostate cancer) and erectile dysfunction in September 1988, May 2009, and August 2014 rating decisions on the basis that the claimed disabilities were not related to service. With respect to prostate cancer specifically, the AOJ also found that the Veteran was not presumed to have been exposed to herbicide agents in service. The Veteran was notified of the September 1988, May 2009, and August 2014 decisions, he did not appeal any of the decisions within one year of their issuance, and new and material evidence was not received within those years. Under such circumstances, new and material evidence would generally be required to reopen the claims of service connection for prostate disability and erectile dysfunction.

However, after the final September 1988, May 2009, and August 2014 rating decisions, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), which extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), which was that  Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the  Republic of Vietnam  are entitled to � 1116 s presumption if they meet the section s other requirements. They are ). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 ( The BWN Act codified the Procopio holding ). Moreover, Congress also intended the BWN Act to  ensure that VA defines  the Republic of Vietnam  broadly.  Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). In addition, the BWN Act provides for special effective date rules with regard to claims, such as the current claim of service connection for prostate cancer, where service connection is sought for diseases presumed service-connected in veterans exposed to Agent Orange that were denied based on lack of service in Vietnam and are now being granted based on such service. See 38 U.S.C. � 1116A(c)(2). Those rules indicate that such a claim should be addressed on a de novo basis rather than as an application to reopen.

In this case, the Court set aside the Board s September 2017 decision based on the Federal Circuit s decision in Procopio and the Veteran s contentions that he was exposed to herbicide agents while serving in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. Moreover, he contends that his prostate cancer was caused by his exposure to herbicide agents and that his erectile dysfunction and voiding dysfunction are caused by his prostate cancer. Therefore, the Board will address all claims on appeal on a de novo basis.

Lastly, the claim of service connection for nocturia has been re-characterized as a claim of service connection for voiding dysfunction to take account of all currently diagnosed voiding dysfunctions (including nocturia and urine leakage). See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim).

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).

A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. � 1116 (f); 38 C.F.R. � 3.307 (a)(6)(iii). Service  in the Republic of Vietnam  includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. � 1116A(a). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including prostate cancer, are presumptively service-connected. 38 C.F.R. � 3.309 (e).

Service connection is also warranted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. � 3.310 (a).

1. Entitlement to service connection for prostate cancer and its residuals

The Veteran contends that he has current prostate cancer that was caused by exposure to herbicide agents in Vietnam. Specifically, he contends, in pertinent part, that he was exposed to herbicide agents when he temporarily went ashore in Vietnam while serving aboard the USS Kitty Hawk off the coast of Vietnam during the Vietnam War.

For the following reasons, the Board finds that the Veteran is presumed to have been exposed to herbicide agents (including Agent Orange) during service and that he has a current diagnosis of prostate cancer that is presumptively service-connected.

Medical records, including an October 2008 examination report from Sharp HealthCare and a September 2014 examination report from Sharp Rees-Stealy Medical Group (Sharp), indicate that the Veteran was diagnosed as having prostate cancer in 2008, was treated with Lupron injections and proton therapy, and has continued to experience residuals of the cancer and its treatment (as discussed below in the section pertaining to his claimed erectile dysfunction and voiding dysfunction). The Veteran has thus met the current disability requirement.

The Veteran contends, in pertinent part, that he was exposed to herbicide agents (including Agent Orange) when he temporarily set foot in Vietnam while he was serving aboard the USS Kitty Hawk. Specifically, he and his representative have reported that while the USS Kitty Hawk was operating off the coast of Vietnam, the Veteran temporarily went ashore in Vietnam to perform aircraft maintenance (see an October 2008  Statement in Support of Claim  form (VA Form 21-4138) and an October 2019 statement from the Veteran s representative).

Service personnel records reflect that the Veteran served aboard the USS Kitty Hawk as part of the Reconnaissance Attack Squadron Six (RVAH 6) from March 1971 to April 1972. His DD Form 214 for the period of service from February 1970 to November 1973 reflects that he received the Vietnam Service Medal with 2 Stars and that his military occupational specialty was an aviation mechanic. Moreover, information received from the National Personnel Records Center in July 2009 confirms that the USS Kitty Hawk was in the official waters of the Republic of Vietnam for various periods between March 1971 and April 1972.

The Veteran is competent to report setting foot in Vietnam during the Vietnam War era. Also, there is no affirmative evidence to explicitly contradict his reports of having temporarily gone ashore in Vietnam while serving aboard the USS Kitty Hawk and his reports are consistent with the places, types, and circumstances of his service. See 38 C.F.R. � 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, the Board must consider the Veteran s statements along with the other evidence of record in determining whether he set foot in Vietnam. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). Overall, the Board finds that the Veteran s reports of setting foot in Vietnam during the Vietnam War Era are credible and the evidence is at least evenly balanced as to whether he set foot in Vietnam. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, exposure to herbicide agents in service is conceded on a presumptive basis. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

As the Veteran has current residuals of prostate cancer and he is presumed exposed to herbicide agents when he set foot in Vietnam, service connection for prostate cancer and its residuals is warranted on a presumptive basis.

2. Entitlement to service connection for erectile dysfunction and voiding dysfunction, secondary to prostate cancer

The Veteran contends that he has current erectile dysfunction and urinary disability and that these disabilities are associated with his prostate cancer. The Board finds, for the following reasons, that the Veteran has current diagnoses of erectile dysfunction and voiding dysfunction and that these disabilities are caused by his now service-connected prostate cancer.

A July 2014 VA male reproduction system conditions examination report shows the Veteran has current diagnoses of erectile dysfunction and voiding dysfunction (including nocturia and urine leakage). As for the etiology of these disabilities, a July 2008 examination report from I. Namihas, M.D. includes an opinion that the Veteran s erectile dysfunction was related to his prostate cancer. There was no further explanation or rationale provided for this opinion.

A December 2012 examination report from Sharp includes a diagnosis of erectile dysfunction that was partially secondary to his treatment for prostate cancer. There was no further explanation or rationale provided for this opinion.

The physician who conducted the July 2014 VA examination opined that the etiology of the Veteran s voiding dysfunction was the treatment received for his prostate cancer. There was no further explanation or reasoning provided for this opinion.

The July 2014 examiner also separately opined that the Veteran s erectile dysfunction was likely ( at least as likely as not / 50 percent or greater probability ) proximately due to or the result of his prostate cancer. He reasoned that the erectile dysfunction started immediately after hormone treatment for prostate cancer and had not improved since that time.

In the September 2014 examination report from Sharp, H.M. Henderson III, M.D. explained that the Veteran had urinary issues (urgency, frequency, and nocturia) and erectile dysfunction, and that these problems could be  attributed to the radiation therapy to his prostate.  Dr. Henderson also later noted that the Veteran had both urinary symptoms and erectile dysfunction as consequences of the proton radiation therapy received for his prostate cancer. There was no further explanation or rationale provided for these opinions.

The July 2014 erectile dysfunction opinion is based upon an examination of the Veteran, a review of his claims file, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

Although the medical professionals who provided the July 2008, December 2012, and September 2014 opinions and the July 2014 voiding dysfunction opinion did not provide any detailed rationales for their opinions, they nonetheless concluded based upon examination of the Veteran, treatment of the Veteran, and/or consideration of his treatment records and reported history that his erectile dysfunction and voiding dysfunction were caused by his now service-connected prostate cancer. These opinions are therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner  did not explicitly lay out the examiner s journey from the facts to a conclusion,  did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).

In sum, the Board finds that the evidence supports the conclusion that the Veteran s erectile dysfunction and voiding dysfunction are caused by the treatment received for his now service-connected prostate cancer. There is no medical opinion contrary to this conclusion. The Board points out that service connection for disability due to medications taken for a service-connected disease or injury is a valid theory of entitlement. See Wanner v. Principi, 17 Vet. App. 4, 8 (2003) (noting that  the Board awarded service connection for tinnitus as  the result of treatment for a service-connected disability  ), rev d on other grounds, 370 F.3d 1124 (Fed. Cir. 2004); Velez v. West, 11 Vet. App. 148, 157 (1998) (discussing  an implicit secondary-service-connection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition ); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (reviewing Board s denial of service connection for glaucoma as secondary to treatment for blepharoconjunctivitis).

For the foregoing reasons, service connection for erectile dysfunction and voiding disability, both as secondary to now service-connected prostate cancer on a causation basis, is warranted.

Jonathan Hager

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	B. Elwood, 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.


judge_norm: CAROLINE B FLEMING

text:
��Citation Nr: 20003000

Decision Date: 01/14/20	Archive Date: 01/14/20

DOCKET NO. 19-08 326

DATE: January 14, 2020

REMANDED

Entitlement to an initial rating in excess of 10 percent for a right elbow disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from September 1990 to September 2016.

Entitlement to an initial rating in excess of 10 percent for a right elbow disorder is remanded.

The Veteran underwent a VA examination for a right elbow disorder in June 2016. Subsequent to the June 2016 VA examination, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. � 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the June 2016 VA examination reported included range of motion testing but did not include active and passive motion or weight-bearing and non-weightbearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. � 4.59, a new examination is necessary to decide the claim.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right elbow disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran s disability under the rating criteria.

In so doing, the examiner must test the Veteran s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If any such test is not conducted, the examiner must explain why such test was not necessary.

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

Caroline B. Fleming

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	M. Thompson, Associate 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.


judge_norm: MICHAEL A HERMAN

text:
��Citation Nr: 20004000

Decision Date: 01/16/20	Archive Date: 01/16/20

DOCKET NO. 13-30 276

DATE: January 16, 2020

REMANDED

Entitlement to service connection for a neurological disorder of the right lower extremity is remanded.

Entitlement to service connection for a neurological disorder to the left lower extremity is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from June 1966 to June 1968, including service at Camp Lejeune, North Carolina, from August 1966 to June 1967 and in the Republic of Vietnam from June 1967 to May 1968.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a November 2011 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA).  In October 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  The case was remanded for additional development in January 2018.

Entitlement to service connection for a neurological disorder of the bilateral lower extremities is remanded.

The Veteran contends he has a neurological disorder involving the lower extremities as a result of active service, including as a result of contaminated water exposure at Camp Lejeune or herbicide exposure during service in Vietnam.  His service in Vietnam and at Camp Lejeune are verified and his claimed exposures are conceded.

VA medical opinions were obtained in May 2019 based upon a comprehensive review of the evidence of record.  Subsequent VA treatment records dated in July 2019 document the Veteran receiving active treatment for Parkinson s disease. However, corresponding notes also suggest that the diagnosis of Parkinson s disease was being investigated as opposed to the Veteran having parkinsonism symptoms related to a vascular disorder.

VA regulations, 38 C.F.R. � 3.309, provide presumptive service connection for Parkinson s disease including based upon contaminated water exposure at Camp Lejeune or herbicide exposure during service in Vietnam.  Although such presumptive service connection is not warranted for Parkinsonism syndromes, direct service connection may be established based upon adequate medical opinion.  See 75 Fed. Reg. 53,202 (Aug. 31, 2010), 82 Fed. Reg.  4,173 (Jan. 13, 2017).  As the May 2019 VA medical opinions did not address Parkinson s disease or Parkinsonism, the Board finds additional development is required for adequate determinations.

The matters are REMANDED for the following action:

Obtain an addendum opinion from an appropriate clinician addressing the nature and etiology of the neurological disorder of the Veteran s lower extremities. A physical examination should be conducted if the examiner finds that such is warranted.  On review the examiner should address the following:

a.	Identify/diagnose any neurological disorder that exists or that has existed during the appeal period. The examiner should specify whether the Veteran has Parkinson s disease for which presumptive service connection may be established. If a diagnosis of Parkinson s disease is not made, the examiner should reconcile such a finding with the VA treatment records noting the prescription of medications to treat Parkinson s disease.

b.	Next, if the examiner determines that a clinical diagnosis of Parkinson s disease is not supported, then an opinion should be provided as to whether the Veteran has a neurological disorder, to include peripheral neuropathy and Parkinsonism, that is at least as likely as not related to service.  The examiner should acknowledge that the Veteran s exposure to herbicides in Vietnam and to contaminated water at Camp Lejeune are conceded.

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	T. Douglas

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.