Citation Nr: 1320395 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-48 376 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetic sensory neuropathy of the bilateral lower extremities, as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for erectile dysfunction, as secondary to service-connected diabetes mellitus type II. 3. Entitlement to service connection for toenail fungus, as secondary to service-connected diabetes mellitus type II. 4. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2008 rating decision in which the RO, inter alia, denied the Veteran's claim for a rating in excess of 20 percent for diabetes mellitus type II. In March 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2009, and in December 2009, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). The Board notes that, the record raises the issues of entitlement to service connection for diabetic sensory neuropathy of the bilateral lower extremities, erectile dysfunction, and toenail fungus, each as secondary to service-connected diabetes mellitus type II. Because service connection is being granted for these disabilities on the basis that they are complications of the Veteran's diabetes mellitus type II, the Veteran is not prejudiced by the Board addressing these matters of service connection in the first instance. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated from March 2010 to March 2012 and a February 2012 VA examination, are potentially relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. Any future consideration of this appellant's case should also take into consideration the existence of this electronic record. The Board's decision addressing the claims for service connection for diabetic sensory neuropathy of the bilateral lower extremities, erectile dysfunction, and toenail fungus is set forth below. The claim for an increased rating for diabetes mellitus type II is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 2. The weight of the competent, probative evidence tends to supports a finding that the Veteran has diabetic sensory neuropathy of the bilateral lower extremities as a complication of his service-connected diabetes mellitus type II. 3. The weight of the competent, probative evidence tends to supports a finding that the Veteran has erectile dysfunction that is a complication of his service-connected diabetes mellitus type II. 4. The weight of the competent, probative evidence tends to supports a finding that the Veteran has a current skin disability, specifically, toenail fungus, that is a complication of his service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for diabetic sensory neuropathy of the bilateral lower extremities, as proximately due to or the result of service-connected diabetes mellitus type II, are met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for erectile dysfunction, as proximately due to or the result of service-connected diabetes mellitus type II, are met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for toenail fungus, on the basis of being proximately due to service-connected diabetes mellitus type II, are met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claims herein decided, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a) service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Veteran does not contend that he has peripheral neuropathy, erectile dysfunction, or a skin disability due to disease or injury incurred or aggravated during service. Rather, the record has raises the issues of whether these disabilities are attributable to his service-connected diabetes mellitus type II. A. Diabetic Sensory Neuropathy of the Bilateral Lower Extremities Post-service VA medical records dated from August 2007 to March 2010 show that the Veteran received intermittent treatment for diabetes mellitus type II. In an October 2008 VA treatment report, the Veteran indicated that he had developed tingling in the feet. He received education regarding diabetic neuropathy during that treatment session. A March 2009 VA podiatry consultation report reveals that sensory examination of the feet using monofilaments was within normal limits, but the Veteran had diminished pulses in his feet. He was given education on diabetic foot care. During a March 2008 VA diabetes mellitus examination, the Veteran did not report any neurological symptoms due to his diabetes. Instead, he instead indicated that in the context of his degenerative joint disease of the hips, he had bilateral hip pain that radiated into the legs. Sciatica without the typical peripheral neuropathy symptoms of paresthesia or dysesthesia were peripherally noted. During an October 2008 VA diabetes mellitus examination, the Veteran reported having tingling/numbness due to his diabetes. However, neurological examination was normal, and he was not diagnosed with any diabetic neuropathy. Most recently, a February 2012 diabetes mellitus Disability Benefits Questionnaire (DBQ) reflects that the Veteran was found to have diabetic peripheral neuropathy. The examiner explained that the duration of the Veteran's diabetes caused the complication. In the diabetic sensory-motor peripheral neuropathy portion of the DBQ, the specific diagnosis for the complication was noted to be diabetic sensory neuropathy of the bilateral lower extremities. The examiner noted that the Veteran had numbness and tingling in both feet and that his clinical examination had revealed a stocking sensory loss to pin prick as well as a cold sensation to the upper mid calf level bilaterally. The numbness in the bilateral lower extremities was found to be mild in severity. As noted, the medical evidence of record reflects that the Veteran has a current diagnosis of diabetic sensory neuropathy of the bilateral lower extremities. Specifically, the February 2012 VA examiner confirmed that diagnosis based on examination. Accordingly, the Board finds that the criterion of a current disability has been satisfied. Hence, the remaining question is whether the Veteran's disability is secondary to his service-connected diabetes mellitus type II. The February 2012 VA opinion is the only medical opinion of record to address the etiology of the Veteran's sensory neuropathy of the bilateral lower extremities. Indeed, the examiner characterized the disability to include "diabetic". As such, the Board finds that the February 2012 VA opinion relating the Veteran's current sensory neuropathy of the bilateral lower extremities to his service-connected diabetes mellitus as a diabetic complication constitutes competent and probative evidence to support the claim for service connection for diabetic sensory neuropathy of the bilateral lower extremities. Significantly, the opinion of the February 2012 VA examiner as to medical nexus is definitive and not contradicted by any other medical evidence or opinion. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b), and Gilbert, 1 Vet. App. at 53-56. Given the totality of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for diabetic sensory neuropathy of the bilateral lower extremities are met. B. Erectile Dysfunction During a February 2012 diabetes mellitus DBQ, the Veteran was found to have erectile dysfunction. The examiner explained that the severity of the Veteran's diabetes caused the complication. In the male reproductive system conditions portion of the DBQ, the examiner noted that the Veteran had given a history of erectile dysfunction dating back to 2003 and that he was currently unable to get an erection, penetrate, or ejaculate. As noted, the medical evidence of record reflects that the Veteran has a current diagnosis of erectile dysfunction. Specifically, the February 2012 VA examiner confirmed that the Veteran has a diagnosis of erectile dysfunction based on examination. Accordingly, the Board finds that the criterion of a current disability of erectile dysfunction has been satisfied. Having established that the Veteran has a current disability of erectile dysfunction, the relevant issue at hand is whether the Veteran's disability is secondary to his service-connected diabetes mellitus type II. The February 2012 VA opinion is the only medical opinion of record to address the etiology of the Veteran's erectile dysfunction. As such, the Board finds that the February 2012 VA opinion relating the Veteran's current erectile dysfunction to his service-connected diabetes mellitus as a diabetic complication constitutes competent and probative evidence to support the claim for service connection for erectile dysfunction. Significantly, the opinion of the February 2012 VA examiner as to medical nexus is definitive and not contradicted by any other medical evidence or opinion. Given the totality of the evidence, and resolving all reasonable doubt in the Veteran's favor ( see 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, and Gilbert, supra.), the Board finds that the criteria for service connection for erectile dysfunction are met. C. Toenail Fungus A March 2009 VA podiatry consultation report reveals that the Veteran had elongated, slightly thickened, non-painful toenails. Diabetic foot examination revealed that the Veteran's feet were visually inspected and found to be within normal limits with the exception of his toenails. The Veteran was diagnosed with onycholysis and hallux nails. He received education on diabetic foot care. On February 2012 diabetes mellitus DBQ, the Veteran was found to have a skin condition as a diabetic complication. The examiner explained that the severity of the Veteran's diabetes caused the complication. In the skin diseases portion of the DBQ, the specific diagnosis for the complication was noted to be toenail fungus. The examiner found that less than 5 percent of the Veteran's total body area was affected by the toenail fungus. As noted, the medical evidence of record reflects that the Veteran has a current diagnosis of toenail fungus. Specifically, the February 2012 VA examiner confirmed that the Veteran had a diagnosis of toenail fungus based on examination. Similarly, a March 2009 VA podiatry consultation also reflects that the Veteran had a toenail disability. Accordingly, the Board finds that the criterion of a current disability of toenail fungus has been satisfied. Having established that the Veteran has a current disability of toenail fungus, the relevant issue at hand is whether the Veteran's disability is secondary to his service-connected diabetes mellitus type II. The February 2012 VA opinion is the only medical opinion of record to address the etiology of the Veteran's toenail fungus. As such, the Board finds that the February 2012 VA opinion relating the Veteran's current toenail fungus to his service-connected diabetes mellitus as a diabetic complication constitutes competent and probative evidence to support the claim for service connection for toenail fungus. Significantly, the opinion of the February 2012 VA examiner as to medical nexus is definitive and not contradicted by any other medical evidence or opinion. Given the totality of the evidence, and resolving all reasonable doubt in the Veteran's favor (see 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, and Gilbert, supra.), the Board finds that the criteria for service connection for toenail fungus are met. ORDER Service connection for diabetic sensory neuropathy of the bilateral lower extremities, as secondary to service-connected diabetes mellitus type II, is granted. Service connection for erectile dysfunction, as secondary to service-connected diabetes mellitus type II, is granted. Service connection for toenail fungus, as secondary to service-connected diabetes mellitus type II, is granted. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation under Diagnostic Code 7913. Noncompensable complications are deemed to be part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). In the above decision, the Board granted service connection for diabetic sensory neuropathy of the bilateral lower extremities, erectile dysfunction, and toenail fungus, on the basis that these disabilities were diabetic complications. In light of the additional awards of service connection, the RO should assign disability ratings and effective dates for the Veteran's service-connected diabetic sensory neuropathy of the bilateral lower extremities, erectile dysfunction, and toenail fungus, and then readjudicate the matter of the Veteran's entitlement to a rating in excess of 20 percent for diabetes mellitus type II, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), in the first instance, to avoid prejudice to the Veteran. See e.g. Bernard v. Brown, Vet. App. 384 (1993). Prior to adjudicating the increased rating claim remaining on appeal, to ensure that all due process requirements are met, the RO should also give the Veteran opportunity to provide additional information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for a rating in excess of 20 percent for diabetes mellitus type II, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. Implement the Board's decision herein. and assign effective dates and disability ratings for diabetic sensory neuropathy of the bilateral lower extremities, erectile dysfunction, and toenail fungus, as complications of diabetes mellitus.. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim for higher rating for diabetes mellitus in light of all pertinent evidence and legal authority (to include 38 C.F.R. § 3.321(b)(1)). 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs