Citation Nr: 20021598 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-26 006 DATE: March 26, 2020 ORDER Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as secondary to diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as secondary to diabetes mellitus is granted. The application to reopen the previously denied claim of entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, is granted. REMANDED Entitlement to an initial rating in excess of 50 percent for unspecified trauma and stressor related disorder with unspecified depressive disorder (acquired psychiatric disorder) is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the right upper extremity is caused by his service-connected diabetes mellitus. 2. The Veteran’s peripheral neuropathy of the left upper extremity is caused by his service-connected diabetes mellitus. 3. An unappealed February 2014 rating decision last denied the Veteran's claim of entitlement to service connection for erectile dysfunction; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 4. The Veteran’s erectile dysfunction is caused by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.310. 3. New and material evidence has been received since the February 2014 denial of service connection for erectile dysfunction, and that claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted where a disability is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when a service-connected disability has aggravated a nonservice-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Diabetic Peripheral Neuropathy - Right and Left Upper Extremity A review of the Veteran’s STRs does not reveal any complaints, findings, or treatment for peripheral neuropathy of the bilateral upper extremities. At a June 2012 VA diabetic sensory-motor peripheral neuropathy examination, the examiner indicated that the Veteran had no objective signs of peripheral neuropathy. His examination was reported to be normal. A December 2015 consultation report from Dr. Yocum indicates that the Veteran was diagnosed with diabetic peripheral neuropathy of the right and left upper extremity. Dr. Yocum indicated that the Veteran has numbness and loss of tactile discrimination in both hands which has been progressive over several years. Pinwheel testing of the hands confirmed significant hypoesthesia. Venous return was sluggish in both the upper extremities. The musculature of the hands was weak upon muscle testing. Dr. Yocum opined that it is more likely than not that the Veteran’s upper and lower diabetic peripheral neuropathy is directly and causally related to his diabetes mellitus which is under poor control. At an April 2016 VA diabetic sensory-motor peripheral neuropathy examination, the Veteran reported a history of sharp pins and needles sensation in his hands with a loss of sensation. He has not undergone any electrodiagnostic testing. Clinical evaluation revealed intermittent pain, paresthesias and/or dysesthesias, and numbness in the upper extremities. Neurologic examination was otherwise normal. The examiner indicated that the there are no objective findings of diabetic neuropathy in the bilateral upper extremities. In this case, while the April 2016 VA examiner indicated that the Veteran did not have any objective findings of diabetic neuropathy, Dr. Yocum noted that the clinical findings in the bilateral upper extremities are consistent with a diagnosis of peripheral neuropathy. Dr. Yocum diagnosed peripheral neuropathy of the bilateral upper extremities and opined that the disorders are directly and causally related to poorly controlled diabetes mellitus. Consequently, the positive opinion of record places the totality of the evidence in relative equipoise. In such a situation, VA regulations dictate that reasonable doubt be resolved in the Veteran’s behalf. Therefore, service connection for peripheral neuropathy of the right and left upper extremities is granted. New and Material Evidence - Erectile Dysfunction In a May 2016 rating decision, the Veteran's application to reopen a claim of entitlement to service connection for erectile dysfunction was granted but the underlying service connection claim was denied. The Veteran thereafter perfected an appeal of this issue. In February 2012, the Veteran originally filed a claim for entitlement to service connection for erectile dysfunction. An October 2012 rating decision originally denied the Veteran's claim for service connection for erectile dysfunction. The Veteran submitted another claim of entitlement to service connection for erectile dysfunction in February 2013 and that claim was denied in February 2014. That decision is final. 38 C.F.R. § 20.1103. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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, and must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims (Court) interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As noted, in an October 2014 rating decision, the Veteran's claim for service connection for erectile dysfunction was denied. The RO concluded that the evidence did not show that the Veteran's erectile dysfunction was related to military service or caused or aggravated by service-connected diabetes mellitus. Since the claim was denied, evidence in the form of VA outpatient treatment reports, a private consultation, VA examinations reports, and lay statements has been submitted. A December 2015 private consultation from Dr. Yocum indicates that the Veteran’s erectile dysfunction is caused by his service-connected diabetes mellitus. The Board concludes that the newly submitted evidence is material. As such, the claim is reopened. The Board will next address the underlying claim of service connection. A review of the Veteran’s STRs does not reflect any complaints, findings, or treatment for erectile dysfunction. At a March 2006 VA diabetes mellitus examination, the Veteran was diagnosed with erectile dysfunction as a diabetic-related genitourinary symptom. However, the examiner indicated that the etiology of the diabetes mellitus was unknown. At an April 2012 VA male reproductive system conditions examination, the Veteran was diagnosed with erectile dysfunction. The examiner indicated that the etiology of the erectile dysfunction was multifactorial and included age, medications, and diabetes. The examiner opined that the Veteran’s erectile dysfunction was less likely than not proximately due to or the result of the Veteran’s service-connected diabetes mellitus. The examiner’s rationale was that the Veteran’s erectile dysfunction was gradual and could not be attributed to diabetes alone, but diabetes probably contributed. The examiner indicated that the Veteran was 63 years-old and took medications, which can cause erectile dysfunction, and the cause is multifactorial, and age is probably the major factor. In October 2012, an addendum opinion was obtained from the April 2012 VA examiner. The examiner reiterated his prior opinion regarding erectile dysfunction and included an opinion that if there is any aggravation of the Veteran’s erectile dysfunction due to diabetes it would be minimal and the Veteran has many other reasons to have erectile dysfunction such as medication, age, etc. Associated with the claims file is a February 2013 physician visit note from R. Anderson, D.O., which indicates that erectile dysfunction was diagnosed and was assumed to be related to diabetes mellitus as a cardiac workup did not explain the diagnosis of erectile dysfunction. Also associated with the claims file is a December 2015 consultation report from P. Yocum, D.C. Dr. Yocum indicated that the Veteran has long-standing erectile dysfunction which does not respond well to Viagra type medications. He opined that it is more likely than not that the Veteran’s erectile dysfunction and resultant loss of use of a reproductive organ is directly and causally related to the Veteran’s diabetes mellitus which is under poor control. In this case, while the April 2012 VA examiner indicated that the Veteran’s erectile dysfunction is less likely than not proximately due to or aggravated by the service-connected diabetes mellitus, the Veteran’s treating provider Dr. Anderson indicated that erectile dysfunction was assumed to be related to diabetes mellitus as a cardiac workup did not explain the diagnosis. Additionally, Dr. Yocum opined that erectile dysfunction was directly and causally related to poorly controlled diabetes mellitus. Consequently, the positive opinions of record place the totality of the evidence in relative equipoise. In such a situation, VA regulations dictate that reasonable doubt be resolved in the Veteran’s behalf. Therefore, service connection for erectile dysfunction is granted. REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the remaining claims on appeal can be reached. Acquired Psychiatric Disorder, Diabetes Mellitus, and Bilateral Hearing Loss With regard to the acquired psychiatric disorder, the Veteran’s representative noted in argument submitted in February 2020, that the Veteran has not been evaluated for his disability since 2016 and an updated psychiatric examination was requested to determine the current nature and severity of the disorder. As such, the Veteran should be afforded a VA examination to ascertain the current nature and severity of the disability. With regard to diabetes mellitus, the Veteran’s representative noted in argument submitted in February 2020, that the Veteran has not been evaluated for his disability since 2016. The representative noted that a current diabetic examination should be obtained in order to determine whether the Veteran’s medications and activity restrictions have changed. Dr. Yocum, in December 2015, noted that the Veteran’s diabetes mellitus was poorly controlled. As such, the Veteran should be afforded a VA examination to ascertain the current nature and severity of the disability. With regard to the bilateral hearing loss, the Veteran’s representative noted in argument submitted in February 2020, that the Veteran has not been evaluated for his disability since 2016 and an updated audiological examination was requested to determine the current nature and severity of the disorder. As such, the Veteran should be afforded a VA examination to ascertain the current nature and severity of the disability. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of the service-connected acquired psychiatric disorder. 3. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of the service-connected diabetes mellitus. 4. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of the service-connected bilateral hearing loss disability. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.