Citation Nr: 20032859 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-07 906 DATE: May 12, 2020 ORDER The claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to service-connected diabetes mellitus type II (DM II), is granted. The claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to service-connected DM II, is granted. The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to service-connected DM II, is granted. The claim of entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to service-connected DM II, is granted. REMANDED The claim of entitlement to service connection for heart disease claimed as ischemic heart disease, to include as due to exposure to herbicides and/or other hazardous chemicals, including jet fuel, is remanded. The claim of entitlement to service connection for a penile disability (including erectile dysfunction and Peyronie's disease), to include as due to exposure to herbicides and other hazardous chemicals, to include jet fuel, is remanded. FINDING OF FACT Competent, probative medical evidence indicates that the Veteran’s peripheral neuropathy of each upper and lower extremity is at least as likely as not etiologically related to his service-connected DM II. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for right upper extremity peripheral neuropathy, as secondary to service-connected DM II, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left upper extremity peripheral neuropathy, as secondary to service-connected DM II, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for right lower extremity peripheral neuropathy, as secondary to service-connected DM II, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left lower extremity peripheral neuropathy, as secondary to service-connected DM II, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1966 to December 1969. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO )inter alia, denied service connection for diabetes mellitus, ischemic heart disease, erectile dysfunction, and peripheral neuropathy of both upper and lower extremities. The Veteran timely disagreed with, and perfected an appeal as to, the denial of each claim. In July 2015, the Veteran and his wife testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In February 2016, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for further action. In October 2016, the Board denied claims for service connection for diabetes mellitus and penile disability and remanded the claims for service connection for ischemic heart disease and for peripheral neuropathy of both upper and lower extremities. The Veteran appealed the October 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2017, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties, vacating the Board’s decision, and remanding the claims for service connection for diabetes mellitus and penile disability to the Board for further proceedings consistent with the Joint Motion. In October 2017, the Board denied the claims for service connection for IHD and for peripheral neuropathy of both upper and lower extremities. The Veteran appealed the October 2017 Board decision to the Court. In a July 2018, Memorandum Decision, the Court set aside the Board’s decision and remanded the claims to the Board for further proceedings consistent with the decision. In August 2018, the Board remanded the claims for service connection for diabetes mellitus and penile disability for further action consistent with the Joint Motion. As a final preliminary matter, the Board notes that prior to certification of the appeal to the Board, in a June 2019 rating decision, the RO granted service connection for DM II. This action resolved that service connection claim, and there is currently no downstream higher rating or effective date issue before the Board. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38C.F.R. §20.900(c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007 Service connection also may be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether each element of a claim is met is based on an analysis of all relevant evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56. At the outset, the Board notes that the Veteran has argued that his upper and lower extremity peripheral neuropathy is due to Agent Orange exposure during his service in Vietnam, or, alternatively, is secondary to his now service-connected DM II (as claimed in November 2019 correspondence). As explained below, with resolution of all reasonable doubt in the Veteran’s favor on the medical etiology question, the Board finds that competent medical evidence of record presents a reasonable basis for awards of service connection on a secondary basis. Moreover, although the Board has previously considered and developed the claims for direct service connection due to exposure to herbicides and/or other hazardous chemicals, including jet fuel, as the Board is granting secondary service connection on a causation basis, direct service connection need not now be addressed. The Veteran has been diagnosed with peripheral neuropathy of each upper and lower extremity. See September 2017 Independent Medical Examination report, May 2014 and May 2019 VA examination reports, and January 2008 medical treatment record. Moreover, as indicated above, service for DM II has been granted. Thus, the remaining question is whether the Veteran’s neuropathy of each upper and lower extremity was caused or is or has been aggravated by the Veteran’s now service-connected DM II. Pertinent to this question, the Veteran submitted an August 2017 medical opinion in which Dr. Ellis opined that the Veteran’s diabetes mellitus II contributed to peripheral neuropathy of his lower extremities. Also, in December 2018, the Veteran submitted a medical article indicating that diabetes is the most common cause of peripheral neuropathy as high blood sugar levels over a long time can damage nerve. Furthermore, a May 2019 VA clinician opined that it is as likely as not that the Veteran’s peripheral neuropathy is caused by or a result of his now serviced connected diabetes mellitus, type II, because at the time of initial diagnosis in 2010, the Veteran had had chronic hyperglycemia (as evidenced by elevated hemoglobin A1c’s), which is a recognized cause of peripheral neuropathy; because he had no other recognized causes of such neuropathy at the time of its onset; and because in rare cases diabetes and diabetic neuropathy are diagnosed simultaneously. Collectively, the VA medical opinion and private medical opinions, as well as the medical article submitted by the Veteran, all support a finding as to a secondary relationship between the Veteran’s now service-connected DM II and peripheral neuropathy affecting each upper and lower extremity. Significantly, there is no medical evidence or opinion to contradict this evidence, and the Board may neither ignore the medical opinions of record, nor substitute its own judgment for that of medical professionals on the medical matter upon which these claims turn. See, e.g., Colvin v. Derwinski, 1 Vet. App. 171 (1991). In particular, the Board notes that the May 2019 VA medical opinion provider explicitly indicated that it as least as likely as not that that the Veterans peripheral neuropathy is caused by or is proximately due to his now service-connected DM II. While this opinion is not dispositive, consistent with the collective medical evidence pertinent to secondary service connection, it was written in terms sufficient to warrant application of the benefit-of-the-doubt doctrine.DM II. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert, supra. Given the evidence discussed above, and resolving all reasonable doubt in the Veteran’s favor on the medical etiology question, the Board finds that the criteria for secondary service connection for peripheral neuropathy of each upper and lower extremity are met. REASONS FOR REMAND Unfortunately, the Board finds that further AOJ action on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2018 Board remand, regarding the penile disability, the Board requested an addendum opinion to consider and discuss all relevant medical and lay evidence, to include Veteran’s lay statements and the conflicting private medical opinions, to include the Veteran’s diagnoses of diabetes mellitus. In the December 2018 JMR, the Court also stated that the examiner should clarify whether the Veteran had the risk factors for Peyronie’s disease as discussed in the April 2016 opinion. In the July 2019 addendum opinion, the physician opined it is less likely as not that the Veteran’s penile disability (including ED and Peyronie’s disease) are caused by or a result of or otherwise medically related to herbicide exposure, because such exposure is not a recognized cause of the Veteran’s penile disability. He also opined it is less likely that the Peyronie’s disease and erectile dysfunction had their onset during service because the STRs are silent for these conditions. As noted, the Veteran is now service connected for DM II due to exposure to toxic and inorganic arsenic during service. The examiner however, failed to address the Veteran’s lay statements and the conflicting private medical opinions, to include whether the Veteran had the risk factors of Peyronie’s disease in the April 2016 opinion, as requested. The examiner also did not provide an adequate rationale. The Board also finds that the examiner should address whether his penile disability was caused or aggravated by his DM II. With regard to the claim for IHD, as noted in the July 2019 Court decision, the Court found that the April 2016 VA opinion was inadequate because the examiner concluded that the normal October 2013 echocardiogram foreclosed any possibility that “changes” noted in September 2013 EKG were “clinically significant,” however, the Court noted that it was unclear whether the examiner considered the September 2013 Navy hospital finding that there was evidence of an old inferior infarct. The Court noted that the VA examiner’s reference to unspecified “changes” does not add clarity. In addition, the Court noted the examiner did not discuss the December 2014 VA EKG report, which postdates the normal October 2013 echocardiogram, documenting an old infarct and blockage. In light of the above-noted deficiencies, the Board finds that another remand of these matters for further medical opinions—based on full consideration of the Veteran’s documented medical history and assertions, and supported by complete, clearly stated rationale—is warranted. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). To this end, on remand, the AOJ should arrange to obtain addendum opinions from appropriate physicians based on claims file review (if possible). The AOJ should only arrange for any further examination(s) of the Veteran if deemed necessary in the judgment of the physician(s) designated to provide the addendum opinion(s). Prior to undertaking action responsive to the above, to ensure that that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Pensacola VA Medical Center (VAMC) and that records dated through May 2019 are associated with the file; however, more recent records may exist. Thus, the AOJ should obtain any outstanding VA medical records dated since May 2019. The AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to any remaining claim(s) on appeal (to include regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the remaining claims on appeal. The matters are hereby REMANDED for the following action: 1. Obtain from the Pensacola VAMC all outstanding records of evaluation and/or treatment of the Veteran since May 2019. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record, to include any private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses from each contacted entity has been associated with the claims file, arrange to obtain from an appropriate physician an addendum opinion addressing the etiology of current penile disability. Only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran’s documented medical history and assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail. With respect to diagnosed penile disability (including erectile dysfunction and Peyronie’s disease), for each disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during active service, or is otherwise medically-related to service, to include by skin contact, inhalation, or ingestion of volatile organic compounds used in aircraft maintenance or generally present on McChord Air Force Base from 1966 to 1969 [as reported in the materials from the U.S. Agency for Toxic Substances and Disease Registry posted on April 17, 2015 in the electronic claims file]; or, if not, (b) was caused OR is or has been aggravated (worsened beyond natural progression) by service-connected type II diabetes mellitus. If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, to include conflicting private medical opinions. In doing so, the physician must specifically discuss whether the Veteran had the risk factors of Peyronie’s disease, as noted in the April 2016 opinion. The physician must also consider and discuss all lay assertions, to include the Veteran’s assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, to include in-service events, and his reports in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 5. After all records and/or responses from each contacted entity has been associated with the claims file, arrange to obtain from an appropriate physician an addendum opinion addressing the etiology of current heart disability. Only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran’s documented medical history and assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to each identified heart disability currently present, or present at any point pertinent to the current claim, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during active service, or is otherwise medically-related to service, to include by skin contact, inhalation, or ingestion of volatile organic compounds used in aircraft maintenance or generally present on McChord Air Force Base from 1966 to 1969 [as reported in the materials from the U.S. Agency for Toxic Substances and Disease Registry posted on April 17, 2015 in the electronic claims file]. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, to specifically include the September 2013 Navy hospital EKG noting an old inferior infarct and December 2014 EKG noting an old inferior infarct and blockage. The physician must also consider and discuss all lay assertions to include the Veteran’s assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, to include in-service events, and his reports in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 6. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271. 7. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the remaining claims on appeal, considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.