Citation Nr: 1800911 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-11 813 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to the service-connected diabetes mellitus type II. 2. Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus type II. 3. Entitlement to service connection for loss of visual acuity of the eyes, to include as secondary to the service-connected diabetes mellitus type II. 4. Entitlement to service connection for erectile dysfunction, to include the question of entitlement to special monthly compensation for loss of use of a creative organ, to include as secondary to the service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the RO in Seattle, Washington, which in pertinent part, denied service connection for bilateral upper extremity peripheral neuropathy, hypertension, loss of visual acuity, and erectile dysfunction. In January 2016, the Veteran testified at a Board Videoconference hearing in Seattle Washington, before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of the hearing has been associated with the electronic file. In an April 2016 decision, in pertinent part, the Board denied service connection for bilateral upper extremity peripheral neuropathy, hypertension, loss of visual acuity, and erectile dysfunction, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Board's April 2016 decision was remanded from the Court pursuant to a May 2017 Joint Motion for Partial Remand (JMPR). Pursuant to the May 2017 JMPR, which was adopted in the Court's May 2017 Order, the Board finds that remand is necessary to comply with the terms of the May 2017 JMPR. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. The appeal is REMANDED to the RO. REMAND In the May 2017 JMPR, the parties agreed that the Board erred by not ensuring that VA had complied with its statutory duty to assist the Veteran in developing the claims, and by not providing an adequate statement of reasons and bases for its determinations. Outstanding VA Treatment Records The parties to the May 2017 JMPR agreed that VA did not fulfill its statutory duty to assist, given that the Veteran indicated in an April 2008 claim for service connection that he had been treated for diabetes mellitus at the Seattle VA Medical Center (VAMC) since May 2001, while the earliest VA treatment records associated with the electronic file are dated beginning in April 2004. As such, the May 2017 JMPR instructed the Board to obtain any outstanding VA treatment records from the Seattle VAMC for the period from May 2001 to April 2004, as well as any current VA treatment records not already associated with the record. Annual Eye Examination Reports During the January 2016 Board hearing, the Veteran testified to receiving annual eye examinations every year around March. The May 2017 JMPR noted that an August 2014 VA treatment record indicated that the Veteran was last seen for an annual examination in April 2013, which the parties interpreted as strong indication that the Veteran likely had annual eye examinations in 2015 and 2016, the treatment records for which are not associated with the claims file. The May 2017 JMPR directed the Board to obtain any annual eye examination reports from 2015 to the present. Service Connection for Bilateral Upper Extremity Peripheral Neuropathy The parties to the May 2017 JMPR agreed that the Board did not provide adequate reasons and bases for denying service connection for bilateral upper extremity peripheral neuropathy. Specifically, the Board's April 2016 decision found that the weight of the evidence demonstrated that the Veteran did not have a current bilateral upper extremity peripheral neuropathy disability, yet the Board did not address an October 2009 VA treatment record that noted a review of the Veteran's symptoms revealed an increased problem with neuropathy of the legs, arms, and hands, and the VA provider's assessment of neuropathy. The October 2009 VA treatment record showing neuropathy and the August 2008 VA examination diagnosing peripheral neuropathy of the lower extremities only preceded the findings contained in a November 2012 VA examination report for diabetic sensory-motor peripheral neuropathy that was negative for any neuropathy symptoms in the upper extremities. The November 2012 VA examination report findings also appear to be inconsistent with the Veteran's reports during the January 2016 Board hearing. For this reason, the Board finds that remand for a new VA examination would help assess the nature and etiology of any upper extremity nerve disorders and help resolve conflicting clinical findings and reports of symptoms; therefore, the Board need not discuss the above October 2009 VA treatment record at this time. Service Connection for Hypertension and Erectile Dysfunction The Veteran was provided with VA examinations in August 2008, September 2008, October 2012, November 2012, and February 2013 pertaining to the issues before the Board on appeal. The May 2017 JMPR directed the Board to discuss whether new VA examinations were warranted in light of the fact that none of the above VA examination reports contained medical opinions as to the question of whether the Veteran's hypertension and erectile dysfunction disabilities were caused or aggravated by the medication needed to treat the service-connected diabetes mellitus, despite the Veteran's express assertions of this theory of service connection. Upon review, the Board finds that new VA examinations and VA medical opinions as to the issues of service connection for hypertension and erectile dysfunction are warranted to obtain more complete VA medical opinions on the question of secondary service connection. VA should obtain all relevant VA treatment records which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the RO should attempt to obtain any outstanding VA treatment records for the period from February 2015. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record any VA treatment records from the Seattle VAMC for the period from May 2001 to April 2004. Any unavailability of the requested records should be documented and associated with the claims file. Additionally, the RO should associate with the record all VA treatment records for the period starting from February 2015. 2. Associate with the record any VA annual eye examination report(s) from 2015, 2016, and 2017. Any unavailability of the requested records should be documented and associated with the claims file. 3. Schedule the appropriate VA examination(s) to help assess the bilateral upper extremity peripheral neuropathy, hypertension, and erectile dysfunction and provide opinions. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed, including electromyogram testing. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: a) Does the Veteran currently have a diagnosed upper extremity peripheral neuropathy disability? If there is no diagnosed peripheral neuropathy in either upper extremity, the VA examiner should so state. If the Veteran does not have peripheral neuropathy in the upper extremities, the VA examiner should also address the October 2009 VA treatment record reflecting the VA provider's assessment of neuropathy based on the Veteran's report of increased problems with neuropathy in the arms and hands. b) If, and only if, the VA examiner diagnoses a current upper extremity peripheral neuropathy disability, is it at least as likely as not (i.e. probability of 50 percent or more) that the currently diagnosed upper extremity peripheral neuropathy is caused by, or related to, the service-connected diabetes mellitus, to include the medication required to treat the diabetes? c) If, and only if, the VA examiner diagnoses a current upper extremity peripheral neuropathy disability, is it at least as likely as not (i.e. probability of 50 percent or more) that the currently diagnosed upper extremity peripheral neuropathy has been worsened beyond its normal progression due to the service-connected diabetes mellitus, to include any medications used to treat the diabetes? d) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the current hypertension has been worsened beyond its normal progression due to the service-connected diabetes mellitus, to include any medications used to treat the diabetes mellitus? e) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the current erectile dysfunction has been worsened beyond its normal progression due to the service-connected diabetes mellitus, to include any medications used to treat the diabetes mellitus? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted, the Veteran and representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).