Citation Nr: 1304285	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  09-40 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II (diabetes).

2.  Entitlement to service connection for erectile dysfunction (ED).

3.  Entitlement to service connection for peripheral neuropathy of the right lower extremity.

4.  Entitlement to service connection for peripheral neuropathy of the left lower extremity.

5.  Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include carpal tunnel syndrome.

6.  Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include carpal tunnel syndrome.

7.  Entitlement to service connection for hypertension.

REPRESENTATION

Appellant (Veteran) represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and DA


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran served on active duty from November 1967 to June 1969, and from August 1973 to January 1974.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in August 2008 and April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) Nashville, Tennessee.  By the August 2008 rating decision, the RO, among other things, denied service connection for erectile dysfunction and bilateral carpal tunnel syndrome.  Thereafter, the RO confirmed and continued the denial of service connection for erectile dysfunction by the April 2009 rating decision.  Additionally, the RO denied the other appellate claims by the latter decision.  With respect to the bilateral carpal tunnel syndrome, the Board notes that the Veteran did not specifically disagree with the RO's determination in August 2008 concerning that issue.  However, the Veteran filed a claim for both hands and arms in January 2008 and, in September 2008, he requested service connection for neuropathy.  In April 2009, he filed a notice of disagreement with respect to neuropathy, which was also within one year of the August 2008 rating decision.  The United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  Id. at 5.  In light thereof, the Veteran's claim pertaining to his hands and arms encompasses neuropathy and carpal tunnel syndrome.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2011.  A transcript of this hearing has been associated with the Veteran's VA claims folder.  In addition, the Veteran submitted evidence at this hearing accompanied by a waiver of initial consideration of such evidence by the agency of original jurisdiction.

In January 2012, the Board remanded the issues on appeal for additional medical inquiry.  As will be further detailed below, the development directed by the Board has been accomplished with regard to the claims of service connection for diabetes and peripheral neuropathy of the left lower extremity.  The development directed by the Board has not been accomplished with regard to the other issues, however.  Therefore, for these other issues on appeal, a new remand is required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).

In this decision, the Board will grant the Veteran's claims of service connection for diabetes and peripheral neuropathy of the left lower extremity.  The claims of service connection for ED, hypertension, and for peripheral neuropathy of the right lower extremity, and for the upper extremities, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

The Board has reviewed the entire record to include the Veteran's virtual VA claims file.  No relevant evidence has been included in the claims file since the supplemental statement of the case (SSOC) dated in October 2012.  


FINDINGS OF FACT

1.  All reasonable notification and development has been completed necessary for the adjudication of the Veteran's claims to service connection for diabetes and peripheral neuropathy of the left lower extremity.   

2.  The record reflects that the Veteran's diabetes mellitus type II is etiologically related to his active military service.

3.  The record reflects that the Veteran's peripheral neuropathy of the left lower extremity is proximately due to diabetes.  


CONCLUSIONS OF LAW

1.  Service connection is warranted for the Veteran's diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

2.  Service connection is warranted for the Veteran's peripheral neuropathy of the left lower extremity.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

In this case, and for the reasons stated below, the Board finds that service connection is warranted for diabetes and peripheral neuropathy of the left lower extremity.  Therefore, no further discussion of the VCAA is warranted with respect to these appellate claims as any deficiency has been rendered moot.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  See Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006.  In this case, the Veteran's claim for service connection for peripheral neuropathy was filed in September 2008. 

The Veteran essentially contends that he has diabetes secondary to Agent Orange exposure while on active duty in the Republic of Vietnam.  He also contends that he has peripheral neuropathy as a result of the diabetes.  As the record reflects the Veteran had service in Vietnam during the Vietnam War era, he was presumptively exposed to herbicides therein.  See 38 U.S.C.A. § 1116.  Agent Orange is generally considered a herbicide agent and will be so considered in this decision.

If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied:  chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  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 a herbicide agent and resolves within two years of the date of onset.  38 C.F.R. § 3.309(e), Note 2.

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 57586-57589 (1996); Notice 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395 (2007); 75 Fed. Reg. 32,40 (2010).

A 10 percent rating is warranted for diabetes that is manageable by restricted diet only, while a 20 percent rating is warranted for diabetes requiring insulin and restricted diet, or requiring an oral hypoglycemic agent and restricted diet.  See 38 C.F.R. § 4.120, Diagnostic Code (DC) 7913 (2012).

Here, the criteria under 38 C.F.R. § 3.309(e) for service connection for diabetes have been approximated.  The Veteran served in Vietnam during the late 1960s, and is therefore presumed to have been exposed to herbicides.  The February 2012 VA examiner diagnosed the Veteran with diabetes mellitus type II.  See also, VA medical record dated January 20, 2010, showing diagnosis of diabetes, diet controlled; VA medical records dating from April 2010 showing prescription for Metformin.  And the medical evidence indicates that the Veteran's diabetes is compensable under DC 7913 - the February 2012 VA examiner indicated that the Veteran had been prescribed, and had been using, a hypoglycemic agent, while a private September 2008 treatment record indicates that the Veteran had been advised to pursue a restricted diet consisting of low carbohydrates.  Based on this evidence, the Board finds service connection warranted for diabetes.  38 C.F.R. § 3.309(e).  

The Board also finds service connection warranted for peripheral neuropathy of the left lower extremity.  The February 2012 VA examiner indicated that the Veteran had "symptoms attributable to diabetic peripheral neuropathy[.]"  The examiner then indicated that the neuropathy in the left foot is "at least as likely as not" due in part to diabetes.  The Board notes that, in parts of the February 2012 VA examination report, the examiner indicated that the Veteran did not have diabetic peripheral neuropathy.  However, the examiner did specifically find evidence of sensory loss in the left lower extremity and attributed this to peripheral neuropathy due in part to diabetes.  The report is not a model of clarity, nevertheless, the Board finds the record sufficiently developed to award service connection, particularly given the examiner's specific comments regarding the neuropathy in the left lower extremity.  In this regard, it is also noted that, in June 2012, a VA podiatrist found decreased sensation in the lower extremities and diagnosed diabetic neuropathy.  Regarding the right lower extremity, the VA examiner, while finding evidence of pain in both lower extremities, did not find any other evidence of sensory impairment in the right lower extremity.  Moreover, EMG testing in 2010 found possible right S1 radiculopathy.  Accordingly, the medical evidence of record pertaining to service connection for the right lower extremity is currently insufficient, thus, the issue is addressed in the remand section.  With respect to the left lower extremity, both the VA podiatrist and the examiner found that the Veteran had neuropathy of the left lower extremity that was attributed at least in part to diabetes.  Accordingly, service connection is warranted.

In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Further, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.  See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  For these reasons, the Board concludes that service connection is warranted for peripheral neuropathy of the left lower extremity.  38 C.F.R. § 3.310.  


ORDER

Service connection for diabetes is granted.

Service connection for peripheral neuropathy of the left lower extremity is granted.


REMAND

In the January 2012 remand, the Board requested that the AMC/RO provide additional medical inquiry into the Veteran's claims of service connection for ED, peripheral neuropathy (in 4 extremities), and hypertension.  The Board requested commentary on whether any of these disorders is related to service or, in the event the Veteran were diagnosed with diabetes, whether any of these disorder is secondary to diabetes.  38 C.F.R. §§ 3.303, 3.310.  It is also noted that the RO has considered in the March 2011 supplemental statement of the case whether these disabilities are secondary to any of the service-connected disabilities.  

The AMC/RO provided the Veteran with a VA compensation examination in February 2012.  In the report of record, the examiner indicated a review of the claims file and a physical evaluation of the Veteran.  Moreover, as discussed earlier in this decision, the examiner diagnosed the Veteran with diabetes, and found peripheral neuropathy in the left lower extremity as likely as not related to diabetes.  By contrast, the examiner found ED, hypertension, and neuropathic disorders in the upper extremities unrelated to diabetes.  However, the examiner did not provide an opinion as to whether ED, hypertension, and peripheral neuropathy of the upper extremities are related to service or aggravated by a service-connected disability.  

With regard to the issue of peripheral neuropathy of the right lower extremity, the examiner states both that the Veteran has, and does not have, such a disorder.  The report and opinion is therefore not clear on the issue of whether the Veteran has this disorder.  Furthermore, in the event that the Veteran is ultimately found to have peripheral neuropathy in his right lower extremity, the record would remain silent on the issue of medical nexus because the February 2012 VA examiner did not provide an opinion at all on this issue (i.e., on whether peripheral neuropathy of the right lower extremity relates to service, or to the diagnosed diabetes).  In addition, as noted above, EMG testing in 2010 indicated that there was possible radiculopathy on the right.  Nevertheless, as other VA medical evidence in the claims file reflects diagnoses of peripheral neuropathy of the right lower extremity, an opinion regarding this claim is necessary.  

In view of the foregoing, the Board finds that the February 2012 VA compensation examination is not in accord with the directives of the January 2012 remand, and is not adequate for resolution of this case.  The Court has held that "a remand by ... the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.  We hold further that a remand by ... the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand."  Stegall, 11 Vet. App. at 271.  The Court has also held that once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Consequently, the Board finds that a remand is required in order to obtain clarification from the February 2012 VA examiner as to whether ED, hypertension, and peripheral neuropathy relate either to service or to a service-connected disorder (to include diabetes, and the Veteran's heart disease which has been service connected, effective November 2009).   

Since a new examination may be necessary, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations.  That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

Also, it is noted that the Veteran is in receipt of Social Security Administration disability benefits.  The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992).

In addition, the claims folder includes a statement of Dr. Janovich dated in September 2006 which reflects that the Veteran's bilateral carpal tunnel should be evaluated with nerve conduction studies and that the studies should be covered under his workman's comp carrier's insurance provisions.  As it appears that there are workman's compensation records that are relevant, the Veteran should be asked to provide VA with authorization to obtain the records.    

Accordingly, the case is REMANDED for the following action:

1.  Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file.

If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.

2.  Request that the Veteran identify any additional records that are relevant to his claims, including workman's compensation records, and, if necessary, provide the RO with authorization to obtain the identified records.

If the AMC, after reasonable efforts to obtain relevant non-Federal records is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.

3.  After the above development is complete, the Veteran's claims folder should again be made available to the February 2012 VA examiner for review and clarification of his opinions expressed therein.  Specifically, the examiner is asked to comment on whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran has erectile dysfunction, peripheral neuropathy / carpal tunnel syndrome of the upper extremities, neuropathy of the right lower extremity, and/or hypertension that began in or is related to active service, to include presumed exposure to herbicides therein.  

Moreover, the examiner should comment on whether it is at least as likely as not that the Veteran's erectile dysfunction, peripheral neuropathy/carpal tunnel syndrome of the upper extremities, neuropathy of the right lower extremity, and hypertension are due to or caused by the service-connected posttraumatic stress disorder, hearing loss, chloracne, tinnitus, diabetes, gastroesophageal reflux disease, thrombocytopenia, or heart disease.  

Also is it at least as likely as not that erectile dysfunction, peripheral neuropathy of the upper extremities and right lower extremity, and/or hypertension are aggravated by posttraumatic stress disorder, hearing loss, chloracne, tinnitus, diabetes, gastroesophageal reflux disease, thrombocytopenia, or heart disease.  By aggravation, the Board means an increase in the severity of the underlying disability that is beyond normal progression.  If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability.

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.

If the February 2012 VA examiner is unavailable, then the requested opinions should be obtained from another appropriately qualified clinician.  If a new examination is deemed necessary, then one should be provided.

4.  Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures.  See Stegall, supra.
 
5.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the record assembled for appellate review.  If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in October 2012, and provided an opportunity to respond.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs