Citation Nr: 20021613 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 09-23 029A DATE: March 26, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for renal failure, with diabetic nephropathy, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for bilateral sensorineural hearing loss (SNHL) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1980 to October 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in February 2016; a copy of the transcript of the hearing is in the Veteran’s file. The claims were last before the Board in August 2017, whereupon the Board issued a decision denying entitlement to service connection for each of the above listed conditions. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) in November 2018, the Court vacated the Board’s decision of the appealed issues and remanded the issues to the Board with directions to further develop the file in support of the Veteran’s claim. In February 2020, the Board notified the Veteran that the VLJ who presided over his February 2016 hearing was no longer at the Board and offered the Veteran the opportunity to attend a second hearing before a different VLJ. In March 2020, the Veteran responded that he did not want another hearing. In order to comply with the Court’s remand directives, the Board must further remand the matter to the Agency of Original Jurisdiction for additional development of the record. The Veteran has asserted that his claimed diabetes mellitus, erectile dysfunction, and renal failure disabilities are secondary to his service-connected hypertension. He has also stated that his claimed bilateral hearing loss is due to in-service noise exposure. (See February 2016 Board hearing transcript). Regarding the claim for service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertension, in its November 2018 JMR, the Court noted that in the August 2017 Board decision which denied the claim, the Board relied on the negative November 2016 VA examiner’s opinion which found that “ a review of current medical literature” was silent for any mechanism by which the Veteran’s service-connected disabilities could cause or aggravate his diabetes mellitus. The Court stated that associated with the Veteran’s claims file was a November 2012 correspondence from the Veteran’s then representative which indicated that an attached article from web.md, entitled “Diabetes and High Blood Pressure” was not addressed by the Board in the August 2017 decision. The Court indicated that the Board did not adequately discuss the favorable evidence associated with the Veteran’s claims file. Subsequent to the JMR and in support of his claim, in August 2019 and November 2019, the Veteran and his representative submitted additional research articles concerning a relationship between diabetes mellitus and hypertension. As the Court has remanded the issue and based on the evidence above, the Board finds that an additional VA examination and opinion is needed to determine whether there is a secondary nexus between the diagnosed diabetes mellitus and the Veteran’s service-connected hypertension disability. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the claim for service connection for erectile dysfunction, to include as secondary to service-connected hypertension, in its November 2018 JMR, the Court noted that in the August 2017 Board decision which denied the claim, the Board referenced a February 2016 private treatment record in which the physician indicated a familiarity with the Veteran’s medical history and had opined that the Veteran’s erectile dysfunction was at least as likely as not caused by or a result of the Veteran’s military service. The Board noted that no rationale was provided and did not find this opinion to be as persuasive as the one provided by a November 2016 VA examiner. The Board stated that the November 2016 VA examiner referenced medical literature and opined that the Veteran’s erectile dysfunction was a “stand-alone” entity, neither due to nor aggravated by non-service-connected diabetes or its treatment or service-connected hypertension or its treatment. As such, the Board concluded that the VA examiner had rendered the only opinion regarding secondary service connection, which was negative, and denied the claim. In the JMR, the Court stated that the Board did not address the evidence contained in the February 2016 private report as the private doctor appeared to have stated that the Veteran’s erectile dysfunction was related to service and had provided a rationale that the Veteran had a history of end stage renal disease secondary to diabetes and hypertension and is not status-post kidney transplant. Subsequent to the JMR and in support of his claim, in August 2019 and November 2019, the Veteran and his representative submitted articles regarding a relationship between erectile dysfunction and hypertension. As the Court has remanded the issue and based on the evidence above, the Board finds that an additional VA examination and opinion is needed to determine whether there is a secondary nexus between the Veteran’s diagnosed erectile dysfunction and the Veteran’s service-connected hypertension disability. Id. Regarding the claim for service connection for renal failure, with diabetic nephropathy, to include as secondary to service-connected hypertension, in its November 2018 JMR, the Court noted that the opinion provided by the November 2016 VA examiner did not contain sufficient detail as to the nature of the Veteran’s renal failure and did not contain rationale as to whether the diagnosed condition was related to service or to his service-connected hypertension. Subsequent to the JMR and in support of his claim, in August 2019 and November 2019, the Veteran and his representative submitted articles regarding a relationship between renal failure and hypertension. As the Court has remanded the issue and based on the evidence above, the Board finds that an additional VA examination and opinion is needed to determine whether there is a secondary nexus between the Veteran’s diagnosed renal failure and the Veteran’s service-connected hypertension disability. Id. As for the claim of entitlement to service connection for bilateral hearing loss, in its November 2018 JMR, the Court noted that the Veteran had reported during the February 2016 Board hearing that he had been exposed to acoustic trauma while in service. The Court also noted that in the August 2017 Board decision which denied the claim, the Board relied on a November 2016 examination report which indicated that the Veteran’s hearing loss was not related to service. The Court indicated that the Board did not consider that the Veteran had indicated that he was “subjectively” aware of difficulty in his hearing during service. Subsequent to the JMR and in support of his claim, in August 2019 and November 2019, the Veteran and his representative submitted articles regarding a relationship between hearing loss and military service. As the Court has remanded the issue and based on the evidence above, the Board finds that an additional VA examination and opinion is needed to determine whether any hearing loss is related to the Veteran’s active duty service. Id. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the claimed diabetes mellitus, type II, erectile dysfunction, and renal failure with diabetic nephropathy. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The chosen examiner must set forth an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that diabetes mellitus, type II, erectile dysfunction, and/or the renal failure had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that any or all of the three above-detailed conditions was caused or aggravated by one or more service-connected disabilities (as listed in a March 2020 rating decision). Specifically, the examiner should evaluate the likelihood that any or all of the conditions is secondary to the service-connected hypertension. In rendering an opinion regarding the diabetes mellitus, type II, the examiner is requested to consider the articles submitted by the Veteran, to include the web.md article in November 2012 and articles submitted in August 2019 and November 2019 regarding a relationship between diabetes mellitus, type II, and hypertension. In rendering an opinion regarding the erectile dysfunction, the examiner is requested to consider the February 2016 private treatment record and the articles submitted by the Veteran, to include the articles submitted in August 2019 and November 2019 regarding a relationship between erectile dysfunction and hypertension. In rendering an opinion regarding the renal failure, the examiner is requested to consider the articles submitted by the Veteran, to include the articles submitted in August 2019 and November 2019 regarding a relationship between renal failure and hypertension. The examiner should note that the term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that one or more service-connected disabilities aggravated the diabetes mellitus, type II, the erectile dysfunction, and/or the renal failure, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. A complete rationale must be provided for all opinions expressed and conclusions reached. The Board notes the anatomical distinctions between the conditions listed above and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion to the Regional Office and/or the examining medical facility. 2. Schedule the Veteran for a VA audiological examination by an appropriate professional to determine the nature and etiology of the claimed hearing loss disability. The entire electronic claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies and is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury. In rendering the opinion, the examiner must consider the Veteran’s lay statements regarding his in-service noise exposure and the articles submitted by the Veteran, to include the articles submitted in August 2019 and November 2019 regarding a relationship between hearing loss and military service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. C. M. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.