Citation Nr: 1800523 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-11 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities, including as secondary to diabetes mellitus type II. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to diabetes mellitus type II. 3. Entitlement to service connection for erectile dysfunction (ED), including as secondary to diabetes mellitus type II or as due to herbicide agents (Agent Orange) exposure. 4. Entitlement to service connection for hypertension (ED), including as secondary to diabetes mellitus type II or as due to herbicide agents (Agent Orange) exposure. 5. Entitlement to service connection for residuals of kidney cancer, including as secondary to diabetes mellitus type II or as due to Agent Orange exposure. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for PTSD. 9. Entitlement to a higher initial rating for diabetes mellitus type II than the 10 percent assigned. REPRESENTATION Appellant represented by: Betty L. G. Jones, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969, including serving in the Republic of Vietnam from March 1967 to March 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, granting service connection and assigning an initial 10 percent evaluation for diabetes mellitus type II, and denying service connection for all the other claimed disabilities as listed hereinabove. The Veteran testified before the undersigned Veterans Law Judge at an August 2016 Travel Board hearing conducted at the RO. A transcript of this hearing is of record. The Veteran's representative submitted a request for advance on the docket in October 2017 based on advanced age in excess of 75 years. However, a review of the record reveals the Veteran to be 71 years of age having been born in December 1946. Hence, an advance on the docket on this basis is not warranted. 38 C.F.R. § 20.900 (2017). No other basis for advancing the Veteran's case on the docket is presented. In the absence of sufficient cause, the Veteran's motion is denied, and the Veteran's appeal will remain in its current docket number order. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, additional development is required for the claims on appeal, necessitating remand. At his hearing before the undersigned, the Veteran informed of current treatment obtained from Great Lakes Outreach as connected to Jesse Brown VA Medical Center (VAMC), Chicago. It does not appear that such records have been obtained and associated with the claims file. As records of federally supported treatment potentially pertinent to the appealed claims, they should be obtained prior to the Board's adjudication of claims the subject of appeal. In his claim submitted in October 2009, the Veteran informed of treatment beginning in 2004 for diabetes mellitus type II and conditions secondary to diabetes mellitus type II, hearing loss and tinnitus, and PTSD, at Advocate Family Practice, Chicago, Illinois. Treatment records from that facility were obtained dated from 2004 to 2006. More recent records from this facility should be sought, in furtherance of the appealed claims. Similarly, the Veteran also submitted a few records from Northwestern Medicine Lakeview. Requests for records of current treatment should include records from this facility. Diabetes and Secondary Conditions Regarding claimed higher initial rating for diabetes and service connection for secondary disabilities, a new diabetes examination should be obtained to assist in ascertaining the current status of that disability, and whether claimed conditions are present and attributable to service-connected diabetes mellitus type II. When the Veteran was last examined in December 2010 for claimed diabetes, the disease was controlled by diet alone and was found to be not of a sufficient severity to cause secondary disability. At the new examination claimed secondary conditions of peripheral neuropathy of the upper and lower extremities, erectile dysfunction, and hypertension should be addressed. Residuals of Kidney Cancer At his hearing before the undersigned, the Veteran testified to having kidney cancer with the right kidney removed, and then reported having stage IV disease. However, this does not reflect active cancer. The right kidney, which was reportedly cancerous, was removed in 2005. However, medical records clarify that the Veteran's current condition of the remaining left kidney is stage IV kidney disease, not kidney cancer. Stage IV reflects kidney disease not requiring dialysis. The Veteran is not diagnosed or treated for kidney cancer during the claim period. Hence, the claim for residuals of kidney cancer is for kidney disease in the remaining left kidney, though service connection may potentially be established based on service connection for the kidney cancer resulting in the removal of the right kidney, since impairment kidney functioning may be attributed in part to removal of the right kidney. The remanded claim must thus be considered on these bases. An August 2016 VA examiner noted that a kidney ultrasound in June 2016 revealed normal echogenicity of the left kidney with two benign cysts. An August 2016 medical status letter from the Jesse Brown VAMC informs that the Veteran has stage IV kidney disease. A basis of claim as causally related to Agent Orange exposure or to diabetes mellitus type II is not supported by competent medical evidence of record. Such questions of diagnosis or etiology are beyond the Veteran's competence as a layperson. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Hence, a VA examination is not warranted at this juncture to address the claim for service connection for residuals of kidney cancer. The Board notes that VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Despite this low threshold, competent evidence indicating such a link has not been presented. Hearing Loss and Tinnitus Regarding hearing loss and tinnitus, the Veteran testified at his October 2016 hearing to being diagnosed with tinnitus in the 1980s, explaining that he woke up one morning and had a buzzing or ringing in his ears. He reported treatment by an ENT physician at Illinois Masonic Medical Center, Chicago, Illinois. He added that in Vietnam he was exposed to artillery without ear plugs. Treatment for these records from the 1980s should be sought. The Veteran was not found to have hearing loss meeting the threshold for hearing loss disability in either ear upon VA examination in December 2010. See 38 C.F.R. § 3.385 (2017). Service treatment and examination records also do not reflect hearing loss or tinnitus. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, the Veteran had an additional VA examination for treatment purposes in in May 2013 and a VA Disability Benefits Questionnaire (DBQ) was completed in October 2006. These identified mild sensorineural hearing loss. Unfortunately, the DBQ examination was based on review of the record, and the May 2013 examination for treatment purposes, while identifying some hearing loss, did not provide numeric readings. An etiology opinion related to service was also not provided. Hence, a new examination is warranted to address the likelihood that any hearing loss found is causally related to service. Tinnitus should also be addressed as potentially related to hearing loss. The examiner in December 2010 already opined against tinnitus having a direct causal link to service based on the lateness of onset of tinnitus. PTSD The Veteran testified that in service in Vietnam he rode shotgun with a warrant officer picking up supplies, and was also an aircraft warning and control center operator. He testified that while on the road in Vietnam he feared mortar and rocket attacks, adding that every now and then while on the road he was shot at. He reported that these encounters occurred at Phu Loi, between Lai Khe and Long Binh and Saigon. Regrettably, such incidental encounters are not of a sort that may be verified through official records. He testified to currently having some difficulty sleeping and some memory problems. He also reported going to a PTSD clinic since 2001. No records of treatment for PTSD have been obtained. Hence, such records must be sought. Without such records supporting a diagnosis of PTSD, there is not yet a sufficient indication of a link to service to warrant a VA PTSD examination. McLendon, 20 Vet. App. at 83. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In particular, records of PTSD treatment should be obtained. In addition, obtain all available VA treatment records not yet associated with the record. This should include requesting records of treatment through Great Lakes Outreach in connection with the Jesse Brown VAMC. It should also include requesting records of care at Advocate Family Practice, Chicago, Illinois, from 2006 to the present, as well as available records of treatment at Northwestern Medicine Lakeview. Records of treatment in the 1980s for hearing loss and tinnitus and other care by an ear nose and throat (ENT) physician at Masonic Medical Center, Chicago, Illinois, should also be sought. All requests and all records and responses received should be documented in the claims file. If any requested records are unavailable, the Veteran should be notified of such. If possible, to expedite the case, the Veteran himself should attempt to obtain and submit any of these records, including any new treatment records. 2. Thereafter, schedule the Veteran for a VA examination to address the nature and severity of his service-connected diabetes mellitus type II. The electronic claims file must be made available to and reviewed by the examiner for the examination. All appropriate tests or studies should be conducted, and the results should be reported in detail. The examiner should also address the presence or absence of any diabetic neuropathy affecting each upper and each lower extremity, and whether the Veteran has other effects of diabetes mellitus type II including erectile dysfunction, diabetic nephropathy, and hypertension. Each of these potential secondary conditions should be separately addressed. All symptomatology associated with each such identified secondary condition should be reported. An explanation for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 3. Also after completing remand instruction 1, schedule the Veteran for a VA examination to address claimed hearing loss and tinnitus. The electronic claims file must be made available to and reviewed by the examiner for the examination. Prior examination and treatment records should be considered. All appropriate tests or studies should be conducted, and the results should be reported in detail. The examiner should opine whether the Veteran has had hearing loss disability meeting 38 C.F.R. § 3.385 criteria at any time during the claim period. For any hearing loss disability present during the claim period, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the hearing loss originated in service or is otherwise causally related to service. If the examiner has found that the Veteran's hearing loss is at-least-as-likely-as-not causally related to service, then the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has tinnitus which was caused or aggravated (permanently increased in severity) by his hearing loss. An explanation for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 4. After undertaking the above development and any additional development deemed necessary, the case should be readjudicated. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case, followed by an appropriate period of time in which to respond. Then, return the appeal to the Board, if in order. 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 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).