Citation Nr: 1337675 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-25 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a chronic neurological disability manifested by pain in the right and left lower extremities, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a gastrointestinal disability, including gastroparesis, to include as secondary to a service-connected disability. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability. 5. Entitlement to an initial compensable disability rating for left eye diabetic retinopathy. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from March 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2005 and November 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Chicago, Illinois. A review of the record on appeal also reveals that the Veteran in January 2006 filed a notice of disagreement as to the October 2005 rating decisions denial of his claim of service connection for PTSD, his claim for an increased disability rating for diabetes mellitus, and his claim for a total disability rating based on individual unemployability (TDIU). Likewise, in January 2009, he filed a notice of disagreement as to the effective date for additional benefits because of a dependent assigned by the RO in an October 2008 decision. None of these issues are in appellate status. As to claim of service connection for PTSD and an increased rating for diabetes mellitus, the Board has reached this conclusion because after the issuance of the August 2008 Statement of the Case, the Veteran did not perfect an appeal by thereafter timely filing a substantive appeal. See 38 C.F.R. §§ 20.200, 20.302(c) (2012). As to the TDIU and earlier effective date issues, the Boards has reached this conclusion because in a February 2008 decision the RO granted a TDIU and in a May 2010 decision the RO granted the earlier effective date claim. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the Veteran's notice of disagreement on such issue). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The claims of service connection for a low back disability, a gastrointestinal disability, and erectile dysfunction as well as the claim for a compensable disability rating for left eye diabetic retinopathy 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. FINDING OF FACT Affording the Veteran the benefit of the doubt, a chronic neurological disability manifested by pain in the right and left lower extremities diagnosed as peripheral neuropathy, is related to his service-connected type 2 diabetes mellitus. CONCLUSION OF LAW The criteria for establishing service connection for a chronic neurological disability manifested by pain in the right and left lower extremities, diagnosed as peripheral neuropathy, have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his type 2 diabetes mellitus caused or aggravated a chronic neurological disability manifested by pain in the right and left lower extremities. In this decision, the Board grants service connection for a chronic neurological disability manifested by pain in the right and left lower extremities, diagnosed as peripheral neuropathy. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See 38 C.F.R. § 3.303; also see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptomatology after service is required for service connection if it is one of the specific disorders listed at 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted 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). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id, at 303-04. Initially, the Board notes that service connection is in effect for type 2 diabetes mellitus since August 2003. Moreover, at the September 2007 VA examination the Veteran was diagnosed with peripheral neuropathy in both lower extremities. Thus, the Board finds that he has a current disability. See Allen, supra; also see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.") As to a relationship between the peripheral neuropathy and the Veteran's service- connected type 2 diabetes mellitus, the September 2007 VA examiner also opined that the service-connected diabetes mellitus more likely than not aggravated his peripheral neuropathy. This medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In summary, the most probative evidence of record shows (1) the Veteran is service connected for type 2 diabetes mellitus, (2) the chronic neurological disability manifested by pain in the right and left lower extremities is diagnosed as peripheral neuropathy, and (3) the bilateral lower extremity peripheral neuropathy in the right and left lower extremities was aggravated by the service-connected type 2 diabetes mellitus. See 38 C.F.R. § 3.310; Allen, supra. Therefore, based on the totality of the lay and medical evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of secondary service connection for a chronic neurological disability manifested by pain in the right and left lower extremities, diagnosed as peripheral neuropathy. See 38 U.S.C.A. § 5107; Gilbert, supra. ORDER Service connection for a chronic neurological disability manifested by pain in the right and left lower extremities, diagnosed as peripheral neuropathy, is granted. REMAND Unfortunately, a remand is required in this case as to the issues of service connection for a low back disability, a gastrointestinal disability, and erectile dysfunction as well as the claim for a compensable disability rating for left eye diabetic retinopathy. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). As to the claim of service connection for a low back disability, the Board finds that in October 2006 the Veteran filed a statement with the RO that acted as a timely notice of disagreement as to the RO's denial of this claim in the October 2005 rating decision. No further action was taken by the RO. Therefore, the Board finds that a remand for the issuance of a Statement of the Case is required. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238 (1999) (holding that referral to the RO of issues with which the Veteran disagrees does not suffice but rather a Remand is required). As to the claims of service connection for a gastrointestinal disability and erectile dysfunction, the Board finds that the Veteran's is competent to report on the observable symptoms of these disabilities. See Davidson. The Board also notes that the Veteran is service-connected for a number of disabilities including diabetes mellitus, depression, and coronary artery disease. See 38 C.F.R. § 3.310; Also see Allen. Therefore, the Board finds that a remand is required to obtain medical opinions as to the diagnoses of his gastrointestinal disabilities as well as the relationship, if any, between his gastrointestinal disabilities and erectile dysfunction and his service connected disabilities including the medications he takes for these disabilities. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). As to the claim for a compensable disability rating for left eye diabetic retinopathy, the Veteran's representative in its September 2013 Informal Hearing Presentation notified the Board that there were outstanding post-June 2008 treatment records at the Hines VA Medical Center that should be obtained by VA prior to adjudicating this claim. Therefore, the Board finds that a remand is required to obtain these records. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Given the above development, the Board finds that while the appeal is in remand status the Veteran should also be provided with another VA examination to ascertain the current severity of his left eye diabetic retinopathy. See 38 U.S.C.A. § 5103A(d) (West 2002); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment). Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. The RO/AMC shall issue the Veteran a Statement of the Case as to his claim of service connection for a low back disability. Only if the Veteran thereafter perfects his appeal as to this issue by filing a timely substantive appeal should it be returned to the Board for appellate review. 2. The RO/AMC shall physically or electronically associate with the record the Veteran's post-June 2008 treatment records from the Hines VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 3. The RO/AMC shall notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of the onset and or recurrence of his gastrointestinal problems and/or his erectile dysfunction. The claimant should be provided an appropriate amount of time to submit this lay evidence. 4. After undertaking the above development to the extent possible, the RO/AMC shall schedule the Veteran for a VA gastrointestinal examination to ascertain the diagnoses as well as the onset and/or etiology of all gastrointestinal disabilities including gastroparesis. The claims file must be made available to and reviewed by the examiner and all necessary tests should be conducted. The examiner is requested to identify all gastrointestinal disabilities found to be present or that were diagnosed during and since service. Diagnoses of gastroparesis should be ruled in or excluded. As to each diagnosed gastrointestinal disorder, the examiner must opine as to whether it is at least as likely as not related to or had its onset in service. The examiner must also opine as to whether it is at least as likely as not that any gastrointestinal disability found to be present was either (a) caused by or (b) is aggravated (permanently worsened) by any of the Veteran's service-connected disabilities including the medications he takes for these disabilities. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a gastrointestinal disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. After undertaking the above development to the extent possible, the RO/AMC shall obtain a medical opinion as to the onset and/or etiology of the Veteran's erectile dysfunction from an appropriate VA medical doctor. The claims file must be made available to and reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran at any time in-service or post-service has been diagnosed with erectile dysfunction. The examiner must opine as to whether it is at least as likely as not that the Veteran's erectile dysfunction is related to or had its onset in service. The examiner must also opine as to whether it is at least as likely as not that the erectile dysfunction was either (a) caused by or (b) is aggravated (permanently worsened) by any of the Veteran's service-connected disabilities including the medications he takes for these disabilities. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for erectile dysfunction in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 6. After undertaking the above development to the extent possible, the RO/AMC shall afford the Veteran with a VA eye examination. The claims file must be provided to the examiner in connection with the examination. The examiner shall conduct all indicated tests and studies including a field of vision study using the Goldmann Perimeter Chart and all clinical findings should be reported in detail. A copy of the Goldmann Perimeter Chart along with the examiner's findings as to the Veteran's vision at each of the eight principal meridians must be association with the examination report. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his left eye diabetic retinopathy. In providing the above information, the examiner shall comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disability. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's eye disability, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 7. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 8. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time shall be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs