Citation Nr: 1333917 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-27 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for peripheral neuropathy, bilateral lower extremities, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for peripheral neuropathy, bilateral lower and bilateral upper extremities, to include as secondary to service-connected diabetes mellitus type II. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to March 1968 in the United States Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. With respect to the issue of entitlement to service connection for peripheral neuropathy, bilateral lower extremities, service connection was originally denied in May 2002. That decision became final as the Veteran did not perfect an appeal within the specified period. As a result, the Board must consider whether new and material evidence has been received to reopen that claim, and the issue on appeal has been characterized on the title page accordingly. FINDINGS OF FACT 1. Evidence regarding the Veteran's peripheral neuropathy of the bilateral lower extremities associated with the claims file since the May 2002 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 2. The preponderance of the evidence is against a finding that the Veteran's peripheral neuropathy of the bilateral lower extremities and the bilateral upper extremities is etiologically related to a disease, injury, or event in service, to include his service-connected diabetes. 3. The preponderance of the evidence is against a finding that the Veteran's erectile dysfunction is etiologically related to a disease, injury, or event in service, to include his service-connected diabetes. CONCLUSIONS OF LAW 1. The evidence received since the May 2002 denial is new and material; and the claim of entitlement to service connection for peripheral neuropathy, bilateral lower extremities is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities was not incurred in or aggravated by service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 3. Erectile dysfunction was not incurred in or aggravated by service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was advised by a September 2006 letter of the evidence and information necessary to substantiate his claim, and the responsibilities of the Veteran and VA in obtaining such evidence. This notice was provided before the subsequent June 2007 rating decision. As a result, VA has complied with it's duty to notify requirements. The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or social security medical records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded a VA examination in December 2006 and June 2009. The Veteran has not argued, and the record does not reflect, that these examinations are inadequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In both instances, the examiner considered the Veteran's relevant medical history and provides a well-reasoned and adequately supported opinion. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. New and Material Evidence Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2013). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities was originally adjudicated in a May 2002 rating decision. As discussed in the introduction, this decision became final as the Veteran failed to perfect an appeal within one year. Consequently, the Board must consider whether new and material evidence has been received on the matter to reopen the claim. In September 2007, the Veteran submitted the previously mentioned note from a VA physician pertaining to the Veteran's diabetes. The note stated that "as a complication of elevated blood sugars, he has developed...peripheral neuropathy involving the lower extremities." The Board finds this to meet the low threshold for new and material evidence. Accordingly, the Board finds that the issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities should be reopened. The Board has considered whether the reopened claim should be remanded for consideration by the agency of original jurisdiction. However, as the Veteran has been provided appropriate VCAA notice on establishing service connection and has been given substantial opportunity to submit evidence and argument in support of the appeal, and because the RO has obtained all relevant records identified by the Veteran as well as VA medical opinions, the Board finds no prejudice in proceeding to consider the merits of the reopened claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1994). II. Entitlement to Service Connection for Peripheral Neuropathy, Bilateral Lower and Bilateral Upper Extremities The Board will address the issues of service connection for peripheral neuropathy of the bilateral lower extremities and the bilateral upper extremities together. Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. A veteran suffering from peripheral neuropathy may also be entitled to service connection on a presumptive basis as the result of exposure to certain herbicide agents. 38 C.F.R. § 3.309(e) (2013). Regulations pertaining to Agent Orange exposure have expanded to include all herbicides used in Vietnam. Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange or a similar herbicide. 38 U.S.C. § 1116(f) (West 2002); 38 C.F.R. § 3.313(a) (2013). Early-onset peripheral neuropathy is among the diseases for which service connection may be presumed due to exposure to herbicide agents. Effective September 6, 2013, VA amended the regulations to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents. Reflecting findings by the National Academy of Sciences, the regulations now require that peripheral neuropathy become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, and the neuropathy no longer needs to be transient. The record indicates that the Veteran did serve in Vietnam, however, there is no evidence of peripheral neuropathy of either the upper or lower extremities within one year of the Veteran's last possible exposure to herbicide agents. The record does not reflect any instance of peripheral neuropathy of the upper extremities until approximately 1986. Peripheral neuropathy of the lower extremities was first noted on the Veteran's problem list in approximately 1998. The Board recognizes that private medical records from September 1972 mention "intermittent low back pain with radiation into the right buttock" following a lumbar laminectomy for herniated discs as the result of an industrial accident in April 1971. However, given that the complaints of radiation were not noted until several years after separation, and were specifically attributed to a post-service back injury, the Board finds that this evidence does not support a finding of peripheral neuropathy having manifested within one year of exposure. As a result, service connection on a presumptive basis is not warranted. The Veteran has specifically alleged that the peripheral neuropathy of his upper and lower extremities is secondary to his service-connected diabetes. While the Veteran has not alleged direct service connection, the Board notes that the requirements for direct service connection are not met. There is no evidence of peripheral neuropathy of the upper or lower extremities, or related symptoms in the service treatment records. The record does not reflect any evidence of peripheral neuropathy of the upper extremities until approximately 1986, or of the lower extremities until approximately 1998. As a result, there is no evidence that the disability was incurred in or aggravated by active service. With respect to secondary service connection, the weight of the evidence does not support a finding that the Veteran's peripheral neuropathy of the upper or lower extremities is secondarily related to his service-connected diabetes. The examiners in both the December 2006 and the June 2009 VA examinations concluded that the Veteran's peripheral neuropathy of the upper and lower extremities was not related to or aggravated by his diabetes. Both examiners based their opinion in part on the earlier onset of neuropathy. As discussed, neuropathy in the upper extremities was first noted in 1986, and in the lower extremities approximately 1998. The Veteran was not diagnosed with diabetes until approximately 2001. The June 2009 examiner further concluded that neuropathy on the right side was not consistent with diabetic neuropathy, and that neuropathy on the left side was the result of an injury to the upper extremity and a lumbar spine condition. It was noted that the Veteran suffered a gunshot wound to the left shoulder prior to service, and was subsequently stabbed in the left shoulder in 1983, after separation from service. The findings with respect to the lower extremities are consistent with a September 2001 VA examination in which the examiner stated: "The 'neuropathy' of the lower limbs is more likely secondary to lumbar disc disease and sciatic involvement." The Board acknowledges that the Veteran's medical record does consistently list diabetic neuropathies on his problem list, however, the Board finds these notations of little probative value. The problem lists provide no explanation or rationale for the listing of diabetic neuropathies. The record contains additional contradictory medical evidence. The previously mentioned September 2007 note by a VA physician states that "as a complication of elevated blood sugars, he has developed... peripheral neuropathy involving the lower extremities.... These complications are, more likely than not, resulting from this patients diabetes." The record does not indicate that this statement was provided after a review of the Veteran's medical history, and there is no additional analysis or support given for this conclusion. In October 2007, the RO submitted a request to the physician requesting a clarifying opinion due to the contradiction between the December 2006 examination by a different physician and the September 2007 note. No response has been received from that physician. With respect to contradictory medical opinions, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Both the June 2009 and December 2006 VA examinations provide thorough and rationally supported opinions stating that it is less likely than not that the Veteran's service connected diabetes caused or aggravated peripheral neuropathy in the upper or lower extremities. The September 2001 VA examination did not address aggravation, but it did conclude that the neuropathy of the lower limbs was likely caused by the Veteran's degenerative disc disease, and not diabetes. These examinations, particularly the June 2009 and December 2006 examinations, are of significant probative value. The contradictory medical evidence, the problem lists and the September 2007 note, are of significantly less probative value due to the lack of any explanation or rationale. There is no evidence that the September 2007 note was the result of a review of the Veteran's medical file or an actual examination. Given the significance the other VA examiners placed on relevant factors in his medical history such as the date of onset of his peripheral neuropathy and his back disability as well as other past injuries, the Board finds the absence of any discussion of the Veteran's history in the September 2007 to be particularly problematic. As noted, the physician failed to provide a clarifying opinion or rationale for the statement. This is in contrast to the December 2006 and June 2009 VA examinations in which the examiners performed a review of the medical record. As a result, the Board finds the December 2006 and June 2009 VA examinations to be of significantly greater probative value. As the competent and probative evidence does not support a finding that the Veteran's peripheral neuropathy of the upper or the lower extremities is related to or aggravated by his service connected diabetes, and the requirements for direct service connection and presumptive service connection are not met, service connection is not warranted. III. Service Connection for Erectile Dysfunction The requirements for entitlement to service connection for the Veteran's erectile dysfunction are the same as discussed above. Again, the Veteran has specifically alleged that his erectile dysfunction is secondary to his service-connected diabetes. While the Veteran has not alleged direct service connection, the Board notes that the requirements for direct service connection are not met. There is no evidence of erectile dysfunction or related symptoms in the service treatment records. The record does not show an actual diagnosis of erectile dysfunction, and the only evidence of the disability is the Veteran's own contention that he began experiencing erectile dysfunction in 1995 or 1996. As a result, there is no evidence that the disability was incurred in or aggravated by active service. With respect to secondary service connection, the Board finds that the weight of the evidence does not support a finding that the Veteran's erectile dysfunction is the result of or aggravated by his service-connected diabetes. Both the June 2009 and the December 2006 VA examinations address the Veteran's erectile dysfunction. As noted in the June 2009 examination, the "medical record is actually silent for diagnosis of or treatment for ED." At the December 2006 VA examination, the Veteran alleged that his erectile dysfunction began in 1995 or 1996. The record contains no evidence to the contrary, and the Board finds that the Veteran is competent to report on the relevant symptoms with respect to ED. As a result, the Board finds that the Veteran does currently suffer from erectile dysfunction. However, the evidence does not support a finding that the Veteran's erectile dysfunction is secondary to his service-connected diabetes. The December 2006 examiner concluded that the Veteran's ED was not caused by diabetes. The examiner's rationale was that "the date of onset was 1995 or 1996, where as the date of onset of the diabetes is 2001." In addition, the examiner found no objective evidence of aggravation. The June 2009 examiner came to an identical conclusion, stating that the Veteran's diabetes did not cause or aggravate the Veteran's erectile dysfunction. While both examinations produced negative opinions as to secondary service connection, the Board again notes the September 2007 note by a VA physician stating that "as a complication of elevated blood sugars, he has developed...erectile dysfunction. These complications are, more likely than not, resulting from this patients diabetes." For the reasons discussed above, the Board finds this note to be of little probative value. The Board finds the December 2006 and June 2009 VA examinations to be of significantly greater probative value. Consequently, service connection on a direct and secondary basis for the Veteran's erectile dysfunction is not warranted. ORDER The previously denied claim of entitlement to service connection for peripheral neuropathy, bilateral lower extremities is reopened. Service connection for peripheral neuropathy, bilateral upper extremities and bilateral lower extremities is denied. Service connection for erectile dysfunction is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs