Citation Nr: 20021901 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-39 148 DATE: March 27, 2020 ORDER Entitlement to service connection for bilateral lower extremity neuropathy is denied. REMANDED Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for bilateral upper extremity neuropathy is remanded. Entitlement to service connection for basal cell skin carcinoma is remanded. Entitlement to an initial compensable rating for right ear hearing loss is remanded. FINDING OF FACT The Veteran is not shown to have bilateral lower extremity neuropathy. CONCLUSION OF LAW Service connection for bilateral lower extremity neuropathy is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1964 to February 1966. In his July 2016 Form 9, the Veteran requested a Board videoconference hearing. In September 2018 correspondence, he withdrew the hearing request. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). Entitlement to service connection for bilateral lower extremity neuropathy Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The threshold requirement for substantiating a claim of service connection is that there must be competent evidence of the disability for which service connection is sought. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. Diagnosis of lower extremity neuropathy disorders are medical questions; they require medical expertise, informed by appropriate examination and diagnostic study. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, there is no medical evidence that the Veteran has, or during the pendency of the instant claim has had lower extremity neuropathy. No provider has diagnosed such disabilities, and July 2014 VA examination, conducted to determine whether he has lower extremity peripheral neuropathy found he does not. The examiner explained the rationale for such conclusion, and the opinion is probative and persuasive evidence in the matter. While the Veteran has reported having lower extremity neuropathy, he has not submitted, or identified for VA to obtain, records showing treatment or diagnosis of such. As there is no competent evidence that during the pendency of the claim the Veteran has lower extremity neuropathy, service connection is not warranted. See 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). The claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran contends he has diabetes mellitus which was incurred during active service. Here, in the July 2014 VA diabetes examination, the examiner found that the Veteran did not have a current diagnosis of diabetes mellitus. The examiner indicated that the Veteran had a diagnosis of impaired fasting glucose. The examiner remarked that the Veteran did not meet the diagnostic criteria for diabetes mellitus at that time. The examiner further remarked that the Veteran was previously told he had elevated blood glucose. However, the prior September 2011 private treatment record indicates a diagnosis of diabetes and that the Veteran was taking Metformin. Further, no opinion has been provided regarding the etiology of the Veteran’s impaired fasting glucose. Therefore, a remand is required to obtain an additional VA examination to determine whether the Veteran is currently diagnosed with diabetes mellitus. 2. Entitlement to service connection for bilateral upper extremity neuropathy is remanded. The Veteran contends that he developed peripheral neuropathy of the bilateral upper extremities due to service. The Board notes that the Veteran has not been diagnosed with peripheral neuropathy of the bilateral upper extremities according to the evidence of record; however, he does have nerve-related diagnoses of carpal tunnel syndrome. However, the VA examiner did not provide an etiological opinion as to whether the Veteran’s bilateral carpal tunnel syndrome was causally linked to his active duty service. Where a Veteran is not competent to provide a diagnosis, it is the symptoms, rather than the diagnosis, which define the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A remand is required to obtain a VA opinion to determine the nature and etiology of the Veteran’s bilateral carpal tunnel syndrome. 3. Entitlement to service connection for basal cell skin carcinoma is remanded. The basal cell carcinoma service connection claim must be remanded as well. The September 2011 private treatment record reflects a diagnosis of basal cell carcinoma. He has presumed Agent Orange exposure based on service in Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). However, the VA regulations do not list basal cell carcinoma as amongst those conditions for which presumptive service connection is available under 38 C.F.R. § 3.309(e). Therefore, an examination must be obtained on remand to resolve the issue of direct causation of basal cell carcinoma. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). 4. Entitlement to an initial compensable rating for right ear hearing loss is remanded. The Veteran was last afforded a VA audiological examination which addressed the right ear hearing loss disability in July 2014. In light of the passage of over five years since that examination, the Board finds that further VA audiological evaluation is needed to determine the current nature and severity of the service-connected right ear hearing loss disability. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records identified and associate them with the claims file. 2. Then, schedule a VA examination from an appropriate clinician to determine the nature and etiology of the Veteran’s diabetes mellitus and/or his impaired fasting glucose. The examiner must clarify whether the Veteran is currently diagnosed with diabetes mellitus, type I or II, or whether he has been so diagnosed at any point during the appeal period. If the Veteran is not found to have diabetes mellitus the examiner must opine as to whether it is at least as likely as not that any impaired fasting glucose is related to the Veteran’s service. All opinions should be accompanied by supporting rationale. The examiner must discuss the 2011 private diagnosis of diabetes mellitus, in the context of any opinion provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the diagnosed carpal tunnel syndrome. The examiner must review the claims file and note that review in the report. The examiner should also assume that the Veteran was exposed to some level of herbicides during service. All examination findings should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, the examiner must opine on whether it is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s presumed Agent Orange exposure from his Vietnam service. A complete rationale must be provided for any opinion offered. 4. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s basal cell carcinoma. The examiner must review the claims file and note that review in the report. The examiner should also assume that the Veteran was exposed to some level of herbicides during service. All examination findings should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran the examiner should answer the following questions: Is it at least as likely as not (50 percent probability or more) that the Veteran’s basal cell carcinoma began in service, was caused by service, or is otherwise related to service, to include the Veteran’s presumed Agent Orange exposure from his Vietnam service? A complete rationale must be provided for any opinion offered. 5. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right ear hearing loss. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner must fully describe any functional effects associated with the Veteran’s right ear hearing loss and the functional impact of his hearing disability. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.