Citation Nr: 20007899 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 15-13 754 DATE: January 30, 2020 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1972 to August 1975. The Board notes that the Veteran previously filed a claim for a service connection for hypertension that was denied in a final decision issued in January 2005. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2019). A final February 2013 rating decision reopen his claim for service connection for hypertension but denied the claim on the merits. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. Although not specifically addressed by the October 2018 decision, by addressing the Veteran’s claim on the merits, the Board implicitly found that new and material evidence had been received sufficient to reopen his previously-denied claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. The Veteran claims entitlement to service connection for hypertension as directly related to his military service. Specifically, in a December 2019 correspondence, the Veteran’s attorney argued that service connection for hypertension was warranted as being directly related to the Veteran’s in-service exposure to herbicide agents while serving in Thailand. In an October 2018 decision, the Board concluded that the Veteran’s military duties took him to the perimeter of Korat Royal Air Thai Force Base, and that he was exposed to herbicide agents. The Veteran also claims entitlement to service connection for hypertension as secondary to his service-connected diabetes mellitus. See July 2012 VA Form 21-4138, Statement in Support of Claim. In accordance with the Board’s October 2018 remand, a VA medical opinion was obtained in April 2019. Ultimately, the examiner opined that the Veteran’s hypertension was less likely than not proximately due to or a result of his service-connected diabetes mellitus. The examiner reasoned that the Veteran’s hypertension preceded the diagnosis of diabetes mellitus, and that he had normal renal function. Unfortunately, the April 2019 opinion is insufficient to adjudicate the Veteran’s claim as the examiner failed to address whether his hypertension was aggravated by his service-connected diabetes mellitus. See 38 C.F.R. § 3.310 (2019); Allen v. Brown, 7 Vet. App. 439 (1995). Following the April 2019 VA examination, the Veteran’s attorney raised a new theory of entitlement, arguing that his hypertension was directly related to his in-service exposure to herbicide agents. In support of this theory, the Veteran’s attorney referenced a November 2018 update from the National Academy of Sciences (NAS) which moved hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. See Veterans and Agent Orange: Update 11 (2018). Because the April 2019 fails to adequate address secondary service connection, and in light of the argument and evidence put forth by the Veteran’s attorney, the Board fins that the Veteran should be afforded a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, is remanded. The Veteran claims entitlement to service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus. See July 2012 VA Form 21-4138, Statement in Support of Claim. Alternatively, the evidence of record, as well as the Veteran’s attorney, have argued that service connection for erectile dysfunction is warranted as secondary to the Veteran’s hypertension. See April 2019 VA Examination Report; December 2019 Correspondence. In accordance with the Board’s October 2018 remand, the Veteran underwent a VA examination in April 2019, and the examiner opined that his erectile dysfunction was less likely than not due to his service-connected diabetes mellitus. The examiner reasoned that the Veteran’s erectile dysfunction preceded the diagnosis of diabetes mellitus. Also, the examiner noted that the Veteran was obese, and that obesity was associated with a high prevalence of erectile dysfunction. Finally, the examiner noted that the Veteran was hypertensive and that high blood pressure was a major cause of erectile dysfunction. Also, the examiner noted that the medication he took to treat his hypertension affected one’s ability to have or maintain an erection. Unfortunately, the April 2019 opinion is insufficient to adjudicate the Veteran’s claim as the examiner failed to address whether his erectile dysfunction was aggravated by his service-connected diabetes mellitus. See 38 C.F.R. § 3.310; Allen, supra. Furthermore, given that the evidence of record, including the April 2019 VA examination, indicates a possible relationship between the Veteran’s hypertension and his erectile dysfunction, the Board finds that these issues are inextricably intertwined with each other. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). To ensure an adequate record upon which to decide the Veteran’s claim, the Board finds that another opinion is necessary. See Barr, supra. 3. Entitlement to service connection for bilateral upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus is remanded. The Veteran claims entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to his service-connected diabetes mellitus. See July 2012 VA Form 21-4138, Statement in Support of Claim. In accordance with the Board’s October 2018 remand, the Veteran underwent a VA examination in April 2019, and the examiner opined that the Veteran did not have bilateral upper extremity peripheral neuropathy. The examiner noted the Veteran’s complaints of an intermittent burning and tingling sensation in his fingers for the last ten to twelve years. The examiner indicated that the onset of these symptoms preceded his diagnosis of diabetes mellitus, and that examination of his bilateral hands was unremarkable. In reviewing the examination report, however, the Board notes that the examination revealed mild paresthesias and/or dysesthesias in the bilateral upper extremities. The examiner also noted that no electromyography testing was performed in connection with the examination. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “disability” as used in 38 U.S.C. § § 1110 refers to the functional impairment in earning capacity, not the underlying cause of said disability. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Given the Federal Circuit’s holding in Saunders, and to ensure an adequate record upon which to decide the Veteran’s claim, he should be afforded a new VA examination to determine whether he has a neurological disability associated with his bilateral upper extremities that is secondary to his service-connected diabetes mellitus. See Barr, supra. 4. Entitlement to SMC based on loss of use of a creative organ is remanded. As noted in the Board’s October 2018 decision, the Veteran’s claim for SMC based on loss of use of a creative organ is inextricably intertwined with his claim for service connection for erectile dysfunction. See Parker, supra; Harris, supra. On remand, the agency of original jurisdiction (AOJ) should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through October 22, 2019, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated after October 22, 2019, with the Veteran’s claims file. The Veteran should be afforded a new VA examination or examinations to determine the etiology of his hypertension and erectile dysfunction, and whether he has a neurological disability and if so, to determine its etiology. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the examiner should address the following questions pertaining to the Veteran’s hypertension: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is related to his military service, to include his presumed exposure to herbicide agents? In providing a response, the reviewing examiner should consider and comment upon the November 2018 report from the NAS moving hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. See Veterans and Agent Orange: Update 11 (2018). b) Regardless of any answer provided in response to the first question, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is caused or aggravated beyond its natural progression by his service-connected diabetes mellitus? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. Following a review of the entire record, the examiner should address the following questions pertaining to the Veteran’s erectile dysfunction: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s erectile dysfunction is caused or aggravated beyond its natural progression by his service-connected diabetes mellitus? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. b) Regardless of any answer provided in response to the first question, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s erectile dysfunction is caused or aggravated beyond its natural progression by his hypertension? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. Following a review of the entire record, the examiner should address the following questions pertaining to the Veteran’s claimed peripheral neuropathy of the bilateral upper extremities: a) Please clarify all neurological disabilities and/or diagnoses related to the Veteran’s claimed peripheral neuropathy of the bilateral upper extremities. The examiner should also note that symptoms manifesting in functional impairment constitutes a disability for VA purposes, even if such cannot be attributed to a formal diagnosis. b) For any neurological disability of the bilateral upper extremities, is it at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated beyond its natural progression by his service-connected diabetes mellitus? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. A clearly-stated rationale for any opinions offered should be provided and must be based on consideration of all pertinent lay and medical evidence. 2. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.