Citation Nr: 1804050 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-35 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hyperlipidemia. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for head skin rash. 4. Entitlement to service connection for jungle rot or fungal infections of the lower extremities. 5. Whether new and material evidence has been received to reopen the claim for service connection for essential tremor or dystonia. 6. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. 7. Entitlement to service connection for bilateral upper extremity peripheral neuropathy. 8. Entitlement to service connection for left foot disability. 9. Entitlement to service connection for bilateral hearing loss disability. 10. Entitlement to service connection for erectile dysfunction. 11. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to October 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating action by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in February 2017, and a transcript of the hearing is associated with his claims folder. At the hearing, the record was held open for an additional 60 days to permit the Veteran an opportunity to obtain and submit additional evidence, and since that time, additional evidence has been submitted. The issues of service connection for bilateral hearing loss disability and erectile dysfunction, plus the matter of TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On February 27, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his appeals for service connection for hyperlipidemia, hypertension, head skin rash, jungle rot or fungal infections of the lower extremities, and whether new and material evidence has been received to reopen the claim for service connection for essential tremor or dystonia. 2. The Veteran is shown to have bilateral lower extremity peripheral neuropathy related to his service-connected diabetes mellitus. 3. The Veteran does not have a current peripheral neuropathy of either upper extremity. 4. The Veteran's currently documented left foot disabilities were not manifest in service and are unrelated to service, to include his in-service left foot cellulitis which resolved. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for service connection for hyperlipidemia, hypertension, head skin rash, jungle rot or fungal infections of the lower extremities, and whether new and material evidence has been received to reopen the claim for service connection for essential tremor or dystonia are met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy are met. 38 C.F.R. § 3.310 (2016). 3. The criteria for service connection for bilateral upper extremity peripheral neuropathy are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). 4. The criteria for service connection for left foot disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew his appeals for service connection for service connection for hyperlipidemia, hypertension, head skin rash, jungle rot or fungal infections of the lower extremities, and whether new and material evidence has been received to reopen the claim for service connection for essential tremor or dystonia, during his hearing in February 2017, after discussion with his representative, and, hence, there remain no allegations of errors of fact or law, concerning them, which are for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for them and they are dismissed. Other service connection claims 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 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). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Organic disease of the nervous system, including bilateral hearing loss, is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Peripheral neuropathy Based on the evidence, the Board concludes that service connection is warranted for peripheral neuropathy of the Veteran's lower extremities, as related to his service-connected diabetes mellitus. While a VA examiner in February 2008 could not find lower extremity peripheral neuropathy, in March 2017, the Veteran's VA podiatrist noted that he is on medication for diabetes mellitus and that he is having nerve pain in his toes bilaterally. The podiatrist stated that although the Veteran's neurological tests in clinic have been normal, he believes the Veteran is developing peripheral neuropathy as a consequence of his diabetes. This evidence is sufficient to grant service connection for peripheral neuropathy of the Veteran's lower extremities, as secondary to his service-connected diabetes mellitus. It specifically mentions nerve symptoms in the Veteran's lower extremities and opines that they are indicative of peripheral neuropathy due to the Veteran's service-connected diabetes mellitus. The Board also finds, however, that service connection is not warranted for right or left upper extremity peripheral neuropathy, as the preponderance of the evidence indicates that it is not present. There is no diagnosis of it of record despite there being numerous treatment records for diabetes mellitus. On VA examination for diabetes mellitus in February 2008, it was not complained of and the Veteran's neurological examination was normal. At the time of his VA examination for diabetes mellitus in December 2008, it was noted that he never had peripheral neuropathy, and neurological examination was negative for peripheral neuropathy. Additionally, VA examined him for sequela of diabetes mellitus in March 2013, and indicated that he did not have diabetic peripheral neuropathy. Also, his VA podiatrist in March 2017 indicated that his neurological tests in clinic have been normal and the podiatrist conspicuously did not mention any upper extremity peripheral neuropathy symptoms. Thus, the preponderance of the evidence indicates that the Veteran does not have a current peripheral neuropathy disability of either upper extremity. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). The Board notes that at the time of the Veteran's hearing in February 2017, he mentioned having been diagnosed by a Dr. Suri in July 2000 and July 2003 with bilateral nerve entrapment of the wrists, hand paresthesia, and pain related to cervical radiculopathy. Dr. Suri's reports are of record. However, this was well before the claim was filed, in or about June 2007, and does not support a diagnosis of upper extremity peripheral neuropathy, current or otherwise. A current diagnosis is one at any time since the claim was filed, and the Veteran's claim for service connection for upper extremity peripheral neuropathy was filed well after 2003. This information is not of an upper extremity peripheral neuropathy since the filing of the claim. Left foot Based on the evidence, the Board finds that service connection is not warranted for any of the Veteran's current left foot disabilities, which the evidence including the August 2013 VA examination report shows are hallux valgus with bunion, mild hammertoe, small posterior and plantar calcaneal spurs, and left foot plantar fibroma. VA treatment records concerning current left foot disability start in August 2007, mentioning a soft lump on the sole of the Veteran's left foot, which the Veteran had noted for years. The Board concedes that this corresponds with a later diagnosis of plantar fibroma of the arch of the left foot, which has subsequently been operated upon. The other left foot problems are shown in the August 2013 VA examination report. At the time of the Veteran's August 2013 VA examination, he reported that his left foot condition began as a lump in the arch of the foot, and that the growth was removed but grew back. He could not recall the onset of his left foot disorder. The VA examiner observed that he had a left foot plantar fibroma and mild hallux valgus of the left great toe. X-rays of the left foot showed evidence of hallux valgus deformity with bunion formation and mild hammertoe deformity of the second and third toes. The examiner stated that current left foot plantar fibroma is not related to or connected to the cellulitis that was treated in service and resolved. The examiner noted that the left foot plantar fibroma is a separate condition. The preponderance of the evidence indicates that the currently documented left foot disabilities were not manifest in service and are unrelated to service. Instead, the evidence including the August 2013 VA examination report shows, in pertinent part, that the Veteran had a left heel blister in service that was diagnosed as left foot cellulitis with lymphangitis. The VA examiner in August 2013 reviewed the record and concluded that it was less likely than not that the Veteran's current left foot disability was incurred in or caused by service. The service discharge examination report shows no left foot disorder that is shown now (it finds pes planus, but this is not shown currently), the diagnoses are different, the current disabilities were first shown many years after service, and the VA examiner in August 2013 indicated that the Veteran's in-service left foot cellulitis resolved, all supporting the conclusion that the current left foot disabilities were not manifest in service and are unrelated to service. The Veteran indicated in December 2013 that he disagrees with the facts in the statement of the case which say that his conditions are not related to service. However, he has provided no evidence or reason for VA to conclude that his claims should be allowed. He also indicated that he believes VA made an error by not taking all presumptive or medical evidence on file into account. However, he pointed to nothing specific that was missed, and the Board can assure the Veteran that no error was made in its decision based on the evidence of record. His arguments, unfortunately, have no supporting evidence. While there are reasons to remand the case to the RO and so the Board will probably see the case again, at this time, the Board would like to thank the Veteran for his wartime combat service in Vietnam, as a machine-gunner and ammo-man between October 1965 and March 1966. ORDER The appeals for service connection for hyperlipidemia, hypertension, head skin rash, jungle rot or fungal infections of the lower extremities, and whether new and material evidence has been received to reopen the claim for service connection for essential tremor or dystonia are dismissed. Service connection for bilateral lower extremity peripheral neuropathy is granted. Service connection for bilateral upper extremity peripheral neuropathy is denied. Service connection for left foot disability is denied. REMAND The Veteran seeks service connection for bilateral hearing loss disability. On VA examination in February 2008, hearing loss disability as defined by 38 C.F.R. § 3.385 (2016) was not shown. However, on appeal, the Veteran submitted a March 2017 VA audiometric report which shows hearing loss disability consistent with 38 C.F.R. § 3.385. The Veteran served in combat operations and search and destroy missions in Vietnam as a machine gunner and ammo-man between October 1965 and May 1966. Although hearing loss disability was not shown at the time of the February 2008 VA audiometric examination, the audiometric results were found to be consistent with hearing loss resulting from exposure to high intensity sounds. The Veteran also reported, at the time of that examination, that he had had exposure to high intensity sound post-service while doing warehouse work, and numerous years have passed since the Veteran's service. The Board finds that a VA examination as indicated below is warranted. Next, the Veteran seeks service connection for erectile dysfunction. February 2008 and December 2008 VA medical opinions cumulatively indicate that the Veteran's erectile dysfunction is unrelated to his service-connected diabetes mellitus because it predated his diabetes mellitus. No opinion has been rendered, however, on the matter of whether his erectile dysfunction is aggravated by his service-connected diabetes mellitus, and this is required. See Allen v. Brown, 7 Vet. App. 439 (1995) (provides for secondary service connection for disability to the extent that it is chronically made worse/aggravated by a service-connected disability). A VA examination will be ordered for this purpose. On remand, action should be taken to obtain any additional relevant medical records of treatment which the Veteran has received. Appellate review of the matter of entitlement to TDIU will be deferred pending completion of the action ordered below, as it could be affected by the outcome of the other claims being remanded. The Board notes that on filing a VA Form 21-8940 for TDIU in January 2010, the Veteran indicated that he was filing since he is unemployable due to his service-connected disabilities. This can fairly be read as including those disabilities for which service connection claims are pending, and deferring adjudication of this issue at this point will permit VA to accord his claim every consideration. A medical opinion which addresses the functional limitations of the Veteran's service-connected disabilities only would be of assistance in adjudicating the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any additional relevant medical records of treatment, VA and non-VA which the Veteran has received. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any current hearing loss disability of either ear. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed hearing loss disability of either ear is related to service, to include as due to the service noise exposure to which he was exposed during combat operations and search and destroy missions in Vietnam as a machine gunner and ammo-man between October 1965 and May 1966? In rendering the opinion, the examiner shall accept as fact that such noise exposure occurred and any other relevant information which the Veteran provides from during combat. The examiner should furnish detailed reasons for each opinion, specifically discussing any relevant evidence and medical principles as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the action ordered in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his current erectile dysfunction disability. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not that any currently diagnosed erectile dysfunction was aggravated by the Veteran's service-connected diabetes mellitus? If aggravation is found, the examiner should quantify the degree of aggravation, if possible. The examiner should furnish detailed reasons for each opinion, specifically discussing any relevant evidence and medical principles as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Please provide a supplemental medical opinion which describes in detail the functional limitations caused only by the Veteran's service connected disabilities, including, as of this writing, chronic kidney disease; PTSD; diabetes mellitus type II; vision impairment associated with diabetes; tinnitus; and peripheral neuropathy of the lower extremities. 5. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs