Citation Nr: 1416965 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 11-08 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, to include as secondary to service-connected type II diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, to include as secondary to service-connected type II diabetes mellitus. 4. Entitlement to an effective date earlier than February 23, 2009, for the grant of service connection for diabetic retinopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to September 1970, including service in the Republic of Vietnam. His decorations include the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that granted service connection for diabetic retinopathy and denied the claims of service connection for erectile dysfunction and peripheral neuritis of the upper and lower extremities. The Veteran filed a timely notice of disagreement dated in July 2010 which included a disagreement as to the effective date awarded for diabetic retinopathy. The RO issued a statement of the case dated in February 2011, and the Veteran submitted his substantive appeal in March 2011. In May 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the local regional office. A transcript of the hearing has been associated with the claims file. At the hearing, the record was held open for 60 days in order that the Veteran may be afforded time to submit additional evidence. Additional evidence was submitted, accompanied by waiver of initial RO consideration submitted at the time of the hearing. The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). A May 2013 VA treatment note indicates that the Veteran has diabetic gastroparesis. This issue is referred for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. The issues of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction 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 In a September 2011 statement, the Veteran expressed his desire to withdraw his claim of entitlement to an earlier effective date for the grant of service connection for diabetic retinopathy. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the Veteran concerning the issue of entitlement to an earlier effective date for the grant of service connection for diabetic retinopathy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Withdrawal of the earlier effective date claim. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, in a September 2011 statement, the Veteran indicated that he wished to withdraw his claim of entitlement to an earlier effective date for the grant of service connection for diabetic retinopathy. Based on the foregoing, the Board finds that there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim, and it is dismissed. ORDER The appeal concerning the claim for an earlier effective date for the grant of service connection for diabetic retinopathy is dismissed. REMAND The Veteran claims entitlement to service connection for erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities, as secondary to service-connected diabetes mellitus. The Veteran has been diagnosed with erectile dysfunction, polyneuropathy, and diabetic neuropathy. The June 2009 VA examination report diagnosed both erectile dysfunction and peripheral neuritis of the upper and lower extremities, but found that these conditions were not related to the Veteran's diabetes mellitus. This VA opinion is inadequate to evaluate the claim, however, in that the examiner offered no explanation for the opinions provided and etiology was simply noted to be undetermined. See Nieves-Rodriguez v. Peake, 22Vet. App. 295, 301 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Based on the foregoing, the Veteran should be afforded an additional VA examination in connection with his erectile dysfunction and peripheral neuropathy claims. In addition, upon remand, the Veteran's VA treatment records should be updated. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Arrange for an appropriate VA examination for the purpose of determining whether the Veteran has erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities that are related to the Veteran's military service or his service-connected diabetes mellitus. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to the following: (a) Does the Veteran have erectile dysfunction and peripheral neuropathy (or other neurological disorder) of the upper and lower extremities? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has erectile dysfunction or peripheral neuropathy (or other neurological disorder) of the upper and/or lower extremities, did such disorders have their onset during active duty, within one year of active duty, or were these disabilities caused by or secondary to the Veteran's service-connected diabetes mellitus type II? In this regard, the examiner is asked to comment on the Veteran's medical treatment records that indicate diagnosed diabetic neuropathy. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. Re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. The appellant 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). This claim 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. 2013). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs