Citation Nr: 20021052 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-55 307 DATE: March 24, 2020 ORDER The petition to reopen the claim for service connection for a bilateral foot condition is denied. Service connection for peripheral neuropathy of the bilateral upper extremities is denied. Service connection for peripheral neuropathy of the bilateral lower extremities is denied. Service connection for erectile dysfunction is denied. Compensation under 38 U.S.C. § 1151 for left-eye disability associated with June 2011 VA surgical treatment is denied. FINDINGS OF FACT 1. Service connection for a bilateral foot disability was denied in a November 2011 rating decision, which was not appealed. 2. Since the November 2011 rating decision, there has not been submitted any evidence relating to a bilateral foot condition that was not previously considered by agency decisionmakers and that relates to an unestablished fact necessary to substantiate the claim. 3. The preponderance of the most probative evidence supports that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities is related to non-service-connected diabetes mellitus. 4. The preponderance of the most probative evidence of record supports that the Veteran’s erectile dysfunction is related to non-service-connected conditions. 5. The evidence establishes that additional left-eye disability associated with June 2011 VA surgical treatment was reasonably foreseeable and was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment. CONCLUSIONS OF LAW 1. The November 2011 rating decision denying service connection for a bilateral foot condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. There is no new and material evidence that raises a reasonable possibility of substantiating the claim for service connection for a bilateral foot condition, and therefore the criteria for reopening the previously denied claim have not been met. 38 U.S.C. § 5108(a) (2018); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for peripheral neuropathy of the bilateral upper and lower extremities have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). 5. The criteria for compensation for additional left-eye disability associated with June 2011 VA surgical treatment have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1951 to November 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019 the Board remanded the matter to associate outstanding VA treatment records with the claims file and to obtain a VA opinion regarding the claim for section 1151 benefits. The Veteran seeks service connection for a bilateral foot condition, for peripheral neuropathy of the upper and lower extremities, and for erectile dysfunction. He also seeks compensation for a left-eye condition under 38 U.S.C. § 1151. A. Petition to Reopen the Claim for Service Connection for a Bilateral Foot Condition Prior to the present claim for a bilateral foot condition, a November 2011 rating decision denied the Veteran’s claim for service connection for the same condition. This previous decision was not appealed and therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Claims denied by a final decision normally may not be reopened, but an exception exists if a claimant submits new and material evidence. 38 U.S.C. § 5108(a) (2018). “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means 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 cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). New and material evidence must “raise a reasonable possibility of substantiating the claim,” a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The November 2011 rating decision denied the Veteran’s petition to reopen the claim for service connection, finding no new and material evidence regarding the claim, which was originally denied in a September 1995 rating decision for insufficient evidence of a current disability and nexus to service. The Board finds that since the November 2011 decision, there is no newly submitted evidence that raises a reasonable possibility of substantiating the claim or that is not cumulative or redundant. While new VA treatment records, including a VA examination, have been associated with the claims file, none of the records provide new evidence regarding either the Veteran’s current disability of the feet or of a connection to service. Without new and material evidence, the petition to reopen the claim for service connection for a bilateral foot disability must be denied. 38 C.F.R. § 3.156(a). B. Original Service Connection Claims The Veteran filed original service connection claims for peripheral neuropathy of the upper and lower extremities and for erectile dysfunction. He contends these conditions are related to his service-connected thoracolumbar spine disability. Service connection is warranted for a current disability that is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Peripheral Neuropathy of the Upper and Lower Extremities The Veteran asserts that his peripheral neuropathy in the upper and lower extremities is due to his service-connected spine disability. Turning to the evidence, an April 2013 endocrinology treatment note remarked that the Veteran had diabetic complications including neuropathy. In connection with his claims, a VA examination was provided in August 2013. The Veteran told the examiner that he had numbness and tingling in the upper and lower extremities since the late 1960s. The Veteran’s spouse, who was present at the examination, said providers have blamed arthritis, diabetes, and old age, but she and the Veteran did not agree; she mentioned that a surgeon who performed a vasectomy said the Veteran had nerve damage. After physical examination of the Veteran and review of his medical files, the examiner opined that the Veteran’s peripheral neuropathies were likely due to a longstanding history of diabetes mellitus. The examiner noted that the Veteran had never been diagnosed with lumbar radiculopathy. Treatment records from October 2015 and July 2016 assessed the Veteran with diabetic peripheral neuropathy. At the August 2019 Board hearing, the Veteran stated he believed that the shrapnel fragments lodged in his body due to an in-service injury, which were the cause of his spine disability, are now causing neuropathy in his upper and lower extremities. Given the evidence of record, the Board finds that service connection is not warranted. The preponderance of the evidence supports that the peripheral neuropathies are related to diabetes, for which the Veteran is not service-connected, rather than proximately due to or aggravated by the Veteran’s service-connected thoracolumbar spine disability. The Veteran’s stated belief that the conditions are due to shrapnel lodged in the body is acknowledged; however, the etiology of peripheral neuropathy is a medically complex issue beyond observation by the senses, and there is no evidence of record to show that the Veteran has education, training, or experience to opine on the etiology. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Veteran’s testimony is of less probative value. Id. With the preponderance of the most probative evidence against a nexus to a service-connected disability, the claims for service connection for peripheral neuropathy must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. 439. 2. Erectile Dysfunction The Veteran contends he has erectile dysfunction that is related to his service-connected thoracolumbar spine disability. In connection with the Veteran’s claim, a VA examination was provided in August 2013. The Veteran’s spouse related that the Veteran was diagnosed with erectile dysfunction in the 1960s and “was told that due to his diabetes there was nothing they could do due to nerve damage.” She also stated that “the Veteran got diabetes about 5 years after onset of erectile dysfunction, approximately 1982.” The examiner explained that “[e]rectile dysfunction occurs as a result of arterial bed injury and lack of adequate perfusion to corpora cavernosa. Atherosclerosis causes hardening of the arteries and build up of plaques in the arteries, impairing blood flow. The smaller arteries in the body, such as in the penis, are the first to get plugged up. The plaque reduces blood flow in the penis, making an erection difficult. VA treatment reports documented diagnoses of diabetes mellitus with neuropathy, hyperlipidemia, and hypertension, which are strong risk factors for erectile dysfunction due to arterial damage.” The examiner therefore found the erectile dysfunction related to the Veteran’s “chronic multiple medical conditions, especially diabetes mellitus.” At the August 2019 Board hearing, the Veteran contended that the condition began in the 1980s and transpired because of his back condition. Based on the evidence of record, the Board finds that service connection for erectile dysfunction is not warranted. The preponderance of the most competent evidence of record attributes the Veteran’s condition to diabetes mellitus as well as hyperlipidemia and hypertension, none of which are service-connected conditions. The history related by the Veteran and his spouse at the August 2013 examination and the August 2019 hearing is acknowledged, and while they are competent to relate what doctors have stated in the past, the Board finds that the August 2013 examiner’s reasoning is the most thorough evidence of record regarding the etiology of the Veteran’s erectile dysfunction. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the Board finds the lay testimony of less probative value in light of the conflicting information about the timing of the onset of the condition. Id. With the preponderance of the most probative evidence against a nexus to a service-connected disability, the claim for service connection for erectile dysfunction must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. 439. C. Claim for Compensation Under 38 U.S.C. § 1151 The Veteran seeks compensation for additional disability in his left eye following June 2011 VA surgical treatment. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. To establish entitlement, there must be (1) medical evidence of a current disability; (2) evidence of incurrence or aggravation of an injury as the result of hospitalization or medical or surgical treatment; and (3) competent evidence of a nexus between that asserted injury or disease and the current disability. See Jones v. West, 12 Vet. App. 383 (1999). To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the medical care or examination to the veteran’s condition after such care or examination. 38 C.F.R. § 3.361(b). When additional disability is caused by VA hospital care, VA medical or surgical treatment, or VA examination, the evidence must show that the proximate cause of the additional disability was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. At the August 2019 Board hearing, the Veteran explained that during the course of left-eye cataract removal surgery at the VA in June 2011 there was a complication that caused a hole in the eye and fluid to leak out. In response, a specialist was called in to repair fix the complication. At the time of the Board hearing, the Veteran said he had cloudy vision and no depth perception, could not drive, saw spots, and sometimes had double vision. Following the November 2019 Board decision, a VA opinion examination and opinion was provided in January 2020. The examiner noted that during the 2011 cataract surgery, there was a tear in the capsule and some lens cortex fell into the vitreous, requiring an anterior vitrectomy. Intravitreal injections were administered to reduce cystoid macular edema. Occasional microaneurysms were noted as secondary to diabetes. After examination and reviewing the Veteran’s medical history, the examiner opined that the complications of the surgery, including the tear in the capsule and cortical material falling into the anterior cortex “is a risk of surgery that would have been disclosed to the patient as part of the informed consent” and therefore was an additional disability that was a reasonably foreseeable event. Moreover, the examiner opined that the complications were “a recognized complication that happens unfortunately to the best cataract surgeons” and therefore were not caused by negligence, carelessness, or lack of skill or error in judgment on the part of the VA doctors. Likewise, regarding the additional disability of macular edema the examiner opined that it was the type of risk that would have been disclosed as a potential risk of the cataract surgery and therefore was reasonably foreseeable. The examiner noted that macular edema was secondary to remnants of the lens falling into the vitreous and causing inflammation, and that therefore it was not due to carelessness, negligence, lack of proper skill, error or in judgment, or a similar instance of fault on the part of VA in the June 2011 treatment. Regarding the Veteran’s diabetic retinopathy in the left eye, the examiner noted that it was due to the Veteran’s diabetes mellitus. Given the evidence of record, the Board finds that entitlement to section 1151 compensation for additional left-eye disability is not established. The competent evidence of record is that the disability resulting from the June 2011 surgical treatment was a reasonably foreseeable event, of the type that would have been disclosed to the Veteran in obtaining informed consent to perform the procedure, and was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The Board acknowledges the Veteran’s description of the complications experienced during the June 2011 surgery and the additional disability that has resulted; however, in order to establish entitlement to compensation for the additional disability, there must be evidence that the additional disability was not reasonably foreseeable or was due to carelessness, negligence, lack of proper skill, error in judgment, or a similar fault. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Accordingly, the claim for compensation under 38 U.S.C. § 1151 for left-eye disability is denied. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, Associate 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.