Citation Nr: 1807984 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-26 385A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sciatic nerve pain. 2. Entitlement to service connection for a left foot disability (claimed as bump on bottom of left foot). 3. Entitlement to service connection for a right ankle disability (claimed as pain on inside of right ankle). 4. Entitlement to service connection for a left ankle disability (claimed as pain on inside of left ankle). 5. Entitlement to service connection for a blood clot. 6. Entitlement to service connection for a back disability (to include tailbone). 7. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 8. Entitlement to service connection for erectile dysfunction. 10. Entitlement to service connection for vision impairment. 11. Entitlement to service connection for arthritis of the right shoulder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1969 to September 1970. The Veteran had service in Vietnam from July 1969 to September 1970, and was awarded the Vietnam Campaign Medal and Vietnam Service Medal. This case comes before the Board of Veterans' Appeals (the Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veteran's request, a hearing before a member of the Board was scheduled. However, in a May 2016 statement, the Veteran requested to cancel his hearing. 38 C.F.R. § 20.704(e) (2017). In an August 2017 rating decision, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities. Thus, that matter is no longer before the Board. The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for sciatic nerve pain; entitlement to service connection for left foot, bilateral ankle, blood clot, back, erectile dysfunction, vision, and right shoulder disabilities; and entitlement to an increased rating for diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence is at least in equipoise as to whether the Veteran has peripheral neuropathy of the bilateral upper extremities that is associated with his service-connected diabetes mellitus. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria to establish service connection for peripheral neuropathy of the bilateral upper extremities associated with service-connected diabetes mellitus have been met. 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for peripheral neuropathy of the bilateral upper extremities. At present the Veteran is service-connected for diabetes mellitus and peripheral neuropathy of the bilateral lower extremities. Service connection may be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 1 Vet. App. 439 (1995). To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). VA medical records show the Veteran is diagnosed with peripheral neuropathy of the bilateral upper extremities, confirmed by electromyography and nerve conduction studies. See June 2011 VA peripheral nerves examination report. Although the February 2013 VA examination report indicated the Veteran did not have peripheral neuropathy of the upper extremities, the June 2011 examination report demonstrates the existence of the condition during the appeal period; thus the Veteran satisfies the requirement of having a current disability. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). As noted above, the Veteran is service-connected for diabetes mellitus. According to a February 2013 VA peripheral nerves examination, the Veteran's peripheral neuropathy is contributed to by two major etiologies: excessive alcohol consumption and diabetes mellitus. The examiner indicated that he could not state without resorting to speculation whether the Veteran's neuropathy symptoms were primarily contributed to by his diabetes mellitus, but opined that diabetes mellitus was at least as likely as not a contributing factor to some of the evolution and progression of the Veteran's neuropathic symptoms. The Board acknowledges that the medical history presented by the February 2013 VA examiner suggests a complex disability picture. However, when read in conjunction with the remainder of the claims file, the pertinent medical evidence indicates the Veteran's peripheral neuropathy of the bilateral upper extremities is at least in part etiologically related to his diabetes mellitus, and cannot be satisfactorily disassociated from that condition. Accordingly, service connection for peripheral neuropathy of the bilateral upper extremities is warranted. 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is granted, subject to controlling regulations governing the payment of monetary awards. REMAND With respect to the increased rating claim, in a recent submission the Veteran's representative indicated the Veteran's diabetes mellitus had worsened since his last VA examination. See January 2018 Appellate Brief, pg. 2. Accordingly, remand for a new examination is warranted. Any outstanding VA medical records should be obtained on remand prior to that examination. The Veteran has a current diagnosis of erectile dysfunction. While April 2007 and June 2009 VA examination reports indicate that the Veteran's erectile dysfunction was not associated with his diabetes mellitus, both examiners' negative opinions reasoned that because the Veteran's erectile dysfunction preceded his diagnosis of diabetes mellitus, it was not caused or aggravated by diabetes mellitus. However, a recent decision by the United States Court of Appeals for Veterans Claims (the Court) requires the Board to seek additional medical clarification. In Frost v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1747, the Court held that 38 C.F.R. § 3.310 contains no temporal requirement that the primary condition be service-connected, or even diagnosed, at the time the secondary condition was incurred. In light of this precedential decision, an addendum opinion regarding the Veteran's erectile dysfunction is required. The Veteran also seeks service connection for a disorder affecting his vision, including what he asserts is a blood clot. See July 30, 2009 VA Form 21-4138. A July 2009 VA eye examination report noted a diagnosis of Hollenhorst plaque in the right eye. VA medical records and July 2009 and July 2011 VA eye examination reports also indicate diagnoses of early cataracts and hypertensive retinopathy. These records state that the conditions were not associated with diabetes mellitus, but the opining clinicians have not provided any supporting rationale or addressed whether the conditions were aggravated by the Veteran's diabetes mellitus. Given these facts and the Veteran's report that his diabetes has worsened, remand for a new eye examination is appropriate. The Veteran claims service connection for several orthopedic conditions, including a back disability, a right shoulder disability, a bilateral ankle disability, and a left foot disability. He asserts that his back and shoulder disabilities resulted from a fall during service, and that his foot and ankle disabilities are secondary to his back disability and service-connected diabetes mellitus. See August 2007 statement, May 2009 statement, July 2009 statement, and May 2010 Notice of Disagreement. VA records show diagnoses of lumbar degenerative disc disease (April 30, 2008 VA medical record), osteoarthritis of the right glenohumeral joint and acromioclavicular joint (June 18, 2008 VA medical record), calcaneal spurs of the bilateral ankles (June 1, 2011 VA joints examination report), and metatarsalgia of the left foot (June 1, 2011 VA feet examination report). The Veteran's service treatment records are silent for all the claimed conditions except for a September 1, 1970 record indicating a diagnosis of sprained Achilles tendon on the right foot. The Veteran's September 1970 separation examination shows his spine, upper extremities, lower extremities, and feet were clinically normal, and he reported he was in good health. Given the Veteran's assertion of an in-service injury affecting his back and shoulder and of a link between the back and his ankle and foot disabilities, the Board finds it appropriate to afford the Veteran an orthopedic examination. As the Veteran's petition to reopen his claim for service connection for sciatic nerve pain is contingent upon the establishment of service connection for a back disability, action on that matter is deferred. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disabilities. 2. When the above actions have been accomplished, to the extent possible, afford the Veteran an examination to determine the current nature and severity of his diabetes mellitus and any associated complications. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed and all clinical findings must be reported in detail and correlated to a specific diagnosis. Additionally, the examiner is asked to provide responses to the following questions: a. Is erectile dysfunction at least as likely as not (50 percent or greater probability) caused by or due to the Veteran's service-connected diabetes mellitus; b. Is erectile dysfunction at least as likely as not (50 percent or greater probability) aggravated by the Veteran's service-connected diabetes mellitus. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's erectile dysfunction found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus. A complete rationale must be given for all opinions and conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any eye disorder, to include early cataracts, hypertensive retinopathy, and Hollenhorst plaque in the right eye. The entire claims file must be provided to the examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished and all clinical findings reported in detail. The examiner is requested to identify all eye disorders. Thereafter, the VA examiner is requested to opine on the following: a. Is it at least as likely as not (a probability of 50 percent or greater) that any current eye disorder, to include early cataracts, hypertensive retinopathy, and Hollenhorst plaque in the right eye, was caused by the Veteran's service-connected diabetes mellitus. Please provide a complete explanation for the opinion. b. Is it at least as likely as not (a probability of 50 percent or greater) that any current eye disorder, to include early cataracts, hypertensive retinopathy, and Hollenhorst plaque in the right eye, was aggravated beyond the natural progress of the disease by the Veteran's service-connected diabetes mellitus. Please provide a complete explanation for the opinion. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's eye disorder found prior to aggravation, and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus. A complete rationale must be given for all opinions and conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. When the above actions have been accomplished, to the extent possible, schedule the Veteran for an examination with a clinician skilled in the diagnosis and treatment of orthopedic disabilities. The entire claims file must be provided to the examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished and all clinical findings reported in detail. Following review of the claims file and examination of the Veteran, the clinician should provide an opinion on the following: a. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed low back disability is related to active service, to include the Veteran's reported fall. b. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed right shoulder disability is related to active service, to include the Veteran's reported fall. c. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed bilateral ankle disability is related to active service. d. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed left foot disability is related to active service. e. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed bilateral ankle disability is caused by his service-connected diabetes mellitus or presently nonservice-connected back disability. f. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed left foot disability is caused by his service-connected diabetes mellitus or presently nonservice-connected back disability. g. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed bilateral ankle disability is aggravated by his service-connected diabetes mellitus or presently nonservice-connected back disability. h. Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed left foot disability is aggravated by his service-connected diabetes mellitus or presently nonservice-connected back disability. If aggravation is found, the clinician should address the following medical issues: (1) the baseline manifestations of the Veteran's ankle and foot disabilities found prior to aggravation; and (2) the increased manifestations which, in the clinician's opinion, are proximately due to the service-connected diabetes mellitus or presently nonservice-connected back disability. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. A complete rationale must be given for all opinions and conclusions. If the clinician is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Review the examination reports for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 6. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. 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). These claims must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs