Citation Nr: 18153816 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-14 785A DATE: November 29, 2018 ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes, is granted. REMANDED Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for diarrhea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The probative evidence of record is at least in relative equipoise that the Veteran’s peripheral neuropathy of the bilateral lower extremity is due to or aggravated by his service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107(b); 38 C.F.R §§ 3.102, 3.310. 2. The criteria for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107(b); 38 C.F.R §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to October 1968. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Bilateral Lower Extremity Peripheral Neuropathy The Veteran contends that his bilateral peripheral of neuropathy of the lower extremity is due to or aggravated by his service-connected diabetes. Service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2017). In August 2013, the Veteran provided a private medical opinion from his neurologist. The neurologist opined that the Veteran’s bilateral lower extremity peripheral neuropathy is related to, or caused by, his service-connected diabetes mellitus. Although a February 2012 examiner opined that the Veteran’s peripheral neuropathy was not related or aggravated by his diabetes due to his peripheral neuropathy preceding his diabetes diagnosis by 30 years, the Board notes that private medical records and VA treatment records have references to the Veteran’s peripheral neuropathy as being related to diabetes. Specifically, a private medical physician noted in January 2001 that the Veteran had a possibility of neuropathic or synovial arthritis and to correlate for any history of diabetes. The Veteran’s VA medical records also show notations of polyneuropathy in diabetes listed as an active problem and notations of diabetic neuropathy in the Veteran’s past medical history. Thus, the Board finds the June 2013 private opinion to be of significant probative value in determining the Veteran’s peripheral neuropathy of the bilateral lower extremity is due to or caused by his service-connected diabetes mellitus. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the examiner appears to have had knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, review of the medical evidence of record, and a full examination of the Veteran, as the Veteran provided additional medical records showing the physician was treating the Veteran for neurological conditions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Additionally, the opinion rendered is consistent with the medical evidence of record. Therefore, the Board concludes that there is supportive evidence of record, and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s service connection claims for a heart disability, diarrhea, and TDIU. 1. Heart Condition and Diarrhea Condition The Veteran contends that he currently has a heart condition that is related to his active duty service, to include exposure to Agent Orange, as well as contends his diarrhea condition is related or caused by his service-connected diabetes. In February 2012, the Veteran received a VA examination. The examiner provided that the Veteran did not have a diagnosis of ischemic heart disease. The Board finds the February 2012 VA opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. Although the examiner stated the Veteran does not have a diagnosis of ischemic heart disease, the Veteran’s records do show notations of “past ischemic heart disease” and a diagnosis of left ventricular hypertrophy present. Therefore, the Board finds that evidence of record appears to be in conflict as to whether the Veteran has ischemic heart disease and an opinion addressing these notations is required. Regarding the Veteran’s claim for diarrhea, the Board notes that the Veteran was never provided a VA examination for his claimed condition. VA’s duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the Veteran is service connected for diabetes. Further, the evidence of record shows the Veteran has consistently complained of diarrhea, and in May 2015, private medical records show his physician noted positive diarrhea under review of the gastrointestinal system. Given all of the above, the Board finds that a remand is required in order to obtain medical examinations with opinions addressing the nature and etiologies of the claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. TDIU A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2017). Although the Veteran does not currently meet the percentage criteria laid out in 38 C.F.R. § 4.16 (a), the Board finds the Veteran’s claim of TDIU is inextricably intertwined with the claimed heart condition and diarrhea condition, and therefore, a determination on this issue prior to resolving the above issues would unduly prejudice the Veteran. Further, the Board, as noted above, has granted the Veteran’s claims for service connection of peripheral neuropathy of the left and right lower extremity, and therefore, consideration of TDIU is also dependent on ratings the Regional Office will provide following this decision. Thus, adjudication on this issue is deferred until the above development is accomplished. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any heart condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that any heart condition is related to his period of active service, to include exposure to Agent Orange. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. The examiner should address the notations of “past ischemic heart disease” and a diagnosis of left ventricular hypertrophy in the record. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran’s diarrhea condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diarrhea condition is due to his service-connected diabetes, to include his diabetic medications. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diarrhea condition is aggravated by his service-connected diabetes, to include his diabetic medications. “Aggravation” is defined as any worsening beyond the natural progression of the disability. c) If the Veteran’s diarrhea condition is not due to or aggravated by his service-connected diabetes, is it at least as likely as not (50 percent probability or more) that the Veteran’s diarrhea condition is related to his period of active service. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. (Continued on the next page)   If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel