Citation Nr: 18146550 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-35 132A DATE: October 31, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. As new and material evidence has been received to reopen the claim of service connection for erectile dysfunction, the appeal to this extent is allowed. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a bilateral foot disability, to include bilateral plantar fascitis, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating higher than 20 percent for diabetes mellitus is remanded. Entitlement to a rating higher than 20 percent for peripheral neuropathy of the right upper extremity is remanded. Entitlement to a rating higher than 20 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to a rating higher than 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating higher than 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed rating decision in November 2006, the regional office (RO) denied entitlement to service connection for erectile dysfunction. 2. Evidence received since the November 2006 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim. 3. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is causally or etiologically related to his service. 4. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is causally or etiologically related to his service. CONCLUSIONS OF LAW 1. The November 2006 rating decision that denied entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted since the last previous denial in November 2006 and, the claim of service connection for erectile dysfunction is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303(b). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to November 1970. Issue 1-2: Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a “chronic disease” listed under 38 C.F.R. § 3.309(a). The presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran’s claim for service connection for bilateral hearing loss and tinnitus. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels; or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his bilateral hearing loss and tinnitus began in service. Reference is made to a May 2012 VA audiological examination wherein the Veteran was noted to have given a history of hearing loss beginning 5 to 6 years earlier (circa 2006) and tinnitus began 20 years earlier. That report of medical history appears to be based on a misunderstanding. Notably, throughout the appeal period, the Veteran has consistently stated that he has had bilateral hearing loss and tinnitus since his service in Vietnam, where he was exposed to acoustic trauma from artillery, rockets, helicopters, machine gun fire, and mortars. See, e.g., March 2011 claim and November 2012 notice of disagreement. The Veteran’s statements are credible and consistent with the circumstances of his service, as the National Personnel Records Center ( NPRC) confirmed that the Veteran served in Vietnam from December 1969 to November 1970 and his DD 214 shows that his military occupational specialty was basic field artilleryman. The Board concludes that there has been continuity of bilateral hearing loss and tinnitus symptoms since service. The Veteran has a current diagnosis of bilateral sensorineural hearing loss as per 38 C.F.R. § 3.385. See May 2012 VA audiological examination that shows at 4000 Hertz 60 decibels in his right ear and 60 decibels in his left ear. The Veteran is competent to report that he has experienced symptoms of bilateral hearing loss since service. His statements are credible for the reasons discussed above. As for tinnitus, the Veteran is competent to report symptoms of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). The Board recognizes that, on the May 2012 VA examination, the examiner rendered an unfavorable opinion regarding the etiology of the Veteran’s hearing loss and tinnitus. However, based on the favorable evidence discussed above, the totality of the evidence in the instant case is in relative equipoise, meaning that the evidence for and against the Veteran’s claims is essentially equal, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss and tinnitus is granted. Issue 3: Whether new and material evidence has been received to reopen a claim of entitlement to service connection for erectile dysfunction. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO in the November 2006 rating decision denied service connection for erectile dysfunction based on the determination that evidence did not show that erectile dysfunction was related to the service-connected diabetes mellitus as it preceded diabetes mellitus. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights. He did not appeal the RO’s decision and additional new and material evidence was not received within a year following this decision. See 38 C.F.R. § 3.156(b). That decision is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the November 2006 rating decision includes the Veteran’s March 2011 claim and November 2012 notice of disagreement whereby he contended that his erectile dysfunction may be related to his service-connected posttraumatic stress disorder (PTSD), which was granted in a December 2010 rating decision. In the November 2012 notice of disagreement, the Veteran through his attorney referenced studies that combat veterans with PTSD experience a higher rate of sexual dysfunction. The evidence received is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for erectile dysfunction as it shows that it may be secondary to the Veteran’s now service-connected PTSD. The credibility of the evidence is presumed for the purposes of reopening the claim of service connection for erectile dysfunction. REASONS FOR REMAND Issues 4-12 are remanded: Entitlement to service connection for erectile dysfunction to include as secondary to a service-connected disability, service connection for a sleep disorder to include as secondary to a service connected disability, service connection for a bilateral foot condition to include bilateral plantar fascitis including as secondary to a service-connected disability; and, entitlement to a rating higher than 20 percent for diabetes mellitus, a rating higher than 20 percent for peripheral neuropathy of the right and left upper extremities, a rating higher than 10 percent for peripheral neuropathy of the right and left lower extremities, and TDIU. As for the Veteran’s claims of service connection for erectile dysfunction, sleep disorder, and a bilateral foot condition to include bilateral plantar fascitis, the Board cannot make a fully-informed decision on these issues because previous VA examiantions are inadequate and new examinations need to be scheduled to determine the nature and etiology of these disorders. As for erectile dysfunction, although there is an opinion in June 2012 addressing whether it is secondary to the service-connected PTSD, the opinion does not address whether the erectile dysfunction is secondary to the service-connected diabetes mellitus on the basis of aggravation. Previous VA opinions, including in May 2012 and May 2006 also do not address whether the service-connected diabetes mellitus aggravated erectile dysfunction. As for sleep apnea, on VA examination in May 2012 the examiner opined that there was no diagnosis of sleep apnea and that the Veteran has not been tested or diagnosed with sleep apnea. However, a sleep study in November 2012 shows sleep apnea and the Veteran contends that he has sleep apnea due to his service-connected disabilities, to include PTSD. See November 2012 notice of disagreement. As for a bilateral foot disability to include bilateral plantar fascitis, the examiner on the May 2012 examination opined that diabetes mellitus did not cause plantar fascitis, however the examiner did not provide an opinion as to whether diabetes mellitus aggravated plantar fascitis. Notably, the examiner also acknowledged that on the Veteran’s March 1969 induction examination into service pes planus in the first degree was shown. However, the examiner opined that the Veteran did not currently have pes planus and pes planus was not shown on his November 1970 separation examination. On remand, the examiner should address the nature and etiology of any foot condition that the Veteran may have in addition to bilateral plantar fascitis. As for the claims for higher ratings for diabetes mellitus and peripheral neuropathy of the upper and lower extremities, the Veteran was last examined in May 2012. Subsequently he indicated that the disabilities increased in severity as on his November 2012 notice of disagreement he stated that he lost nearly twenty pounds without diet or exercise and may have a need for insulin, his ability to walk has decreased and he has no bodily hair from the knee down, and he has had problems picking up items and dropping them because of the inability to feel the pressure he needed to apply. Thus, the Veteran should be provided with the opportunity to report for VA examinations to ascertain the current severity and manifestations of his diabetes mellitus and peripheral neuropathy of the upper and lower extremities. While the Veteran currently meets the schedular criteria for entitlement to TDIU, based on the current evidence of record it is unclear whether he is unemployable due to his service-connected disabilities. Thus, the issue of TDIU is intertwined with the issues of entitlement to higher ratings for diabetes mellitus and peripheral neuropathy of the upper and lower extremities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (CONTINUED NEXT PAGE) The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of erectile dysfunction. The examiner is asked to do the following: Opine whether erectile dysfunction is at least as likely as not (50 percent or better probability) aggravated by the service-connected diabetes mellitus; or, (i) caused or (ii) aggravated by the service-connected peripheral neuropathy of the upper and lower extremities. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The examiner is asked to do the following: a.) Identify/diagnose any distinct sleep disorder that presently exists or has existed during the appeal period. b.) For any identified sleep disorder, to include sleep apnea, state whether the disorder is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease. c.) For any identified sleep disorder, to include sleep apnea, state whether the disorder is at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by a service-connected disability. The examiner is hereby advised that the Veteran is service connected for the following disabilities: PTSD, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability. The examiner is asked to do the following: a.) In addition to bilateral plantar fascitis, identify/diagnose any distinct bilateral foot disability that presently exists or has existed during the appeal period. b.) If the examiner determines that the Veteran currently has bilateral pes planus, the examiner should provide an opinion as to whether it is clear that pes planus was aggravated (permanently worsened) during, or as a result of, the Veteran’s period of active service? If there was an aggravation (permanent worsening) of the Veteran’s pre-existing pes planus during, or as a result of, his period of active service, is it clear this aggravation (permanent worsening) was due to the natural progress of that condition? c.) For any bilateral foot disability other than pes planus, state whether the disability, to include bilateral plantar fascitis, is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease. d.) For any identified bilateral foot disability other than pes planus, state whether the disability, to include bilateral plantar fascitis, is at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by a service-connected disability. The examiner is hereby advised that the Veteran is service connected for the following disabilities: PTSD, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his diabetes mellitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should discuss the effect of the Veteran’s diabetes mellitus on any occupational functioning and activities of daily living. 5. Schedule the Veteran for a VA neurological examination by a neurologist if possible, or other appropriate medical professional, to determine the current extent and severity of the service-connected peripheral neuropathy of the upper and lower extremities. The examination report must comply with all protocols for rating the disabilities. All   necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner must do the following: Clearly identify all neurologic abnormalities of the service-connected peripheral neuropathy of the upper and lower extremities. The examiner must describe whether such abnormalities cause complete paralysis or incomplete paralysis (mild, moderate, or severe), neuritis, or neuralgia of all affected nerves. If there are overlapping symptoms among multiple nerves, the examiner should identify to the extent possible the impaired nerve that is most analogous to the Veteran’s symptoms. The examiner also should discuss the effect of the Veteran’s peripheral neuropathy of the upper and lower extremities on any occupational functioning and activities of daily living. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel