Citation Nr: 1803755 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-07 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for hyperlipidemia claimed as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for bilateral upper extremity disability claimed as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for bilateral foot disability claimed as secondary to service-connected diabetes mellitus. 4. Entitlement to a compensable rating for service-connected erectile dysfunction. 5. Entitlement to a rating in excess of 20 percent for service-connected peripheral neuropathy of the right lower extremity with residuals of stroke associated with diabetes mellitus. 6. Entitlement to a rating in excess of 20 percent for service-connected peripheral neuropathy of the left lower extremity associated with diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1970 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2002 and October 2008 rating decisions of a Department of Veteran Affairs (VA) Regional Office (RO). At the Veteran's request and pursuant to the prior December 2015 Board remand, he was scheduled for a September 2017 hearing before the Board, but failed to report without providing good cause; thus, his hearing request is considered withdrawn. The Board notes that the matter involving a bilateral foot disability was adjudicated by the Agency of Original Jurisdiction (AOJ) as a claim to reopen based on a finding that such claim had already been denied in the past. However, a review of the record shows that (1) a June 2002 rating decision denied his original claim of service connection for bilateral foot disability because a foot condition was not shown to be related to his diabetes or service and (2) VA received copies of VA treatment records that same month explicitly showing that complaints of tingling in the feet were diagnosed as diabetic neuropathy. Therefore, pursuant to 38 C.F.R. § 3.156(b), those records were new and material evidence in that claim; the June 2002 decision, as it pertained to his alleged foot disability, remained pending; and the present claim remains on appeal from that original denial of service connection. Thus, the Board will adjudicate it as an original claim of service connection. The issues of service connection for hyperlipidemia and bilateral upper extremity peripheral neuropathy, as well as increased ratings for right and left lower extremity peripheral neuropathy and erectile dysfunction, are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran is shown to have a long history of private and VA treatment for complaints of neurological symptoms (described as pain, tingling, weakness, and burning sensations) in the feet that have been diagnosed as diabetic neuropathy, most notably on June 2002 evaluation just after the June 2002 denial on appeal. 2. A May 2006 VA examination report notes the Veteran's complaints of burning sensation in his feet "may be evidence of a peripheral neuropathy in its early stages" that "could be [the] result of his Agent Orange exposure in Vietnam or diabetes;" May 2008 VA treatment records note complaints of burning sensation in the feet that was diagnosed as "neuropathy due to uncontrolled sugars." 3. An April 2009 private letter from the Veteran's podiatrist-who is a subject matter expert here-explicitly indicates the Veteran has severe diabetic neuropathy of the feet. 4. There is no competent medical opinion or evidence that adequately suggests otherwise; the remaining examination reports and medical opinions directly addressing diabetic neuropathy note complaints regarding the feet but focus primarily on whether the Veteran has neuropathy of the lower extremities or legs. 5. The evidence is at least in relative equipoise as to whether the Veteran has diabetic neuropathy of the feet. CONCLUSION OF LAW Service connection for diabetic neuropathy affecting the bilateral lower extremities as secondary to service-connected diabetes mellitus is warranted. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). ORDER Service connection for diabetic neuropathy affecting the bilateral lower extremities is granted. REMAND Although the evidence of record clearly documents a long history of hyperlipidemia, the Veteran has not yet been afforded an examination to determine whether such condition may be related to his service-connected diabetes. Similarly, despite several VA examinations addressing lower extremity neuropathy, there is only one which makes an explicit diagnostic finding regarding whether the Veteran has upper extremity neuropathy. However, that examination considers only whether the Veteran has upper extremity diabetic neuropathy and does not consider whether other documented disabilities affecting the Veteran's wrists and hands (i.e., bilateral carpal tunnel syndrome, a long history of neurological or vascular complaints such as diminished reflexes, sensation, or pulses, or Dupuytren's disease) might also be caused or aggravated by his service-connected diabetes. Notably, a November 2009 private record indicates that diabetes may contribute to his slow recovery from a carpal tunnel release and subsequent weakness. The record also shows the Veteran had a stroke in November 2011 whose residuals have since been service-connected, raising additional questions as to whether any upper extremity neurological complaints are secondary to his stroke residuals. In light of the above, the Board finds that examinations are needed to determine the nature and likely etiology of the Veteran's claimed hyperlipidemia and upper extremity disabilities. The Board also notes that the Veteran has not been examined in conjunction with his increased rating claims (for lower extremity neuropathies and erectile dysfunction) since 2013 and 2008, respectively (though a 2013 central nervous system examination makes passing reference of his erectile dysfunction). In either case, several years have passed since the most recent disability picture available for such disabilities. Therefore, contemporaneous examinations are needed Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for the disabilities on appeal. 2. Then, arrange for the Veteran to be examined by an endocrinologist or other appropriate physician to determine the nature and likely etiology of his hyperlipidemia. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Is the Veteran's documented hyperlipidemia a distinct disability or merely a symptom? b. Regardless, is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's hyperlipidemia is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY the Veteran's service-connected diabetes mellitus. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, arrange for the Veteran to be examined by a neurologist to determine the nature and likely etiology of his upper extremity neurological symptoms and the current severity of his lower extremity neuropathies. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Please identify, by diagnosis, all upper extremity neurological disability entities found. If any past documented diagnosis for upper extremity disability is felt to be inappropriate, please explain why. b. For each upper extremity neurological disability diagnosed, the examiner must opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY the Veteran's service-connected diabetes mellitus. c. For each upper extremity neurological disability diagnosed, the examiner must also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY the Veteran's service-connected stroke residuals. 4. Then, arrange for the Veteran to be examined by a genitourinary specialist or urologist to determine the current severity of his erectile dysfunction. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and associated functional impairment from his erectile dysfunction in sufficient detail to allow for application of the relevant rating criteria. Specifically, the examiner should note whether there is loss of erectile power and penile deformity. 5. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs