Citation Nr: 21004645 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-39 342 DATE: January 27, 2021 ORDER New and material evidence having been received, the application to reopen a service connection claim for left upper extremity peripheral neuropathy, secondary to diabetes mellitus type II (DM II), is granted. New and material evidence having been received, the application to reopen a service connection claim for right upper extremity peripheral neuropathy, secondary to DM II, is granted. New and material evidence having been received, the application to reopen a service connection claim for vision problems, secondary to DM II, is granted. REMANDED Service connection for left upper extremity peripheral neuropathy, secondary to service-connected DM II, is remanded. Service connection for right upper extremity peripheral neuropathy, secondary to service-connected DM II, is remanded. Service connection for vision problems, secondary to DM II, is remanded. Entitlement to an initial rating in excess of 20 percent for DM II with erectile dysfunction is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded FINDINGS OF FACT 1. In a final July 2013 rating decision, the regional office (RO) denied the Veteran’s service connection claims for peripheral neuropathy of the bilateral upper extremities and vision problems, secondary to DM II. 2. Evidence added to the record since the final July 2013 rating decision for the service connection claims of peripheral neuropathy of the bilateral upper extremities and vision problems, secondary to DM II, is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement. CONCLUSIONS OF LAW 1. The July 2013 rating decision that denied entitlement to service connection for peripheral neuropathy of the left upper extremity, secondary to DM II, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. The July 2013 rating decision that denied entitlement to service connection for peripheral neuropathy of the right upper extremity, secondary to DM II, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 3. The July 2013 rating decision that denied entitlement to service connection for vision problems, secondary to DM II, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Air Force from March 1969 to May 1990. The issues are on appeal from a March 2016 rating decision. In a July 2018 rating decision, the RO granted service connection, pertinently, for DM II with erectile dysfunction associated with herbicide exposure at 20 percent disabling; left lower extremity diabetic peripheral neuropathy at 20 percent; and right lower extremity diabetic peripheral neuropathy at 20 percent. The Veteran is presumed to seek the maximum available benefit for a disability. As such, these claims are still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to a TDIU has been raised by the record by the Veteran’s representative in the July 2018 notice of disagreement, and added to the appeal. As the Veteran’s representative has alleged that he is unemployable due to his service-connected disabilities, the Board of Veterans’ Appeals (Board) finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, the Veteran’s present claim for increased ratings has given rise to a new claim for entitlement to a TDIU raised by the record. New and Material Regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for left upper extremity peripheral neuropathy, secondary to DM II 2. Whether new and material evidence has been received to reopen a claim of service connection for right upper extremity peripheral neuropathy, secondary to DM II 3. Whether new and material evidence has been received to reopen a claim of service connection for vision problems, secondary to DM II The Veteran originally filed claims of service connection for peripheral neuropathy of the bilateral extremities and vision problems in April 2012. These claims were ultimately denied in July 2013 because the RO had not granted service connection for DM II after finding that DM II was unrelated to service. The July 2013 decision was not appealed in a timely fashion, and it became final. See 38 U.S.C. § 7104. The Veteran sought to reopen his service connection claims for peripheral neuropathy of the bilateral extremities and vision problems in October 2015. In the March 2016 rating decision on appeal, the RO denied the Veteran’s appeal to reopen his service connection claims. Following a timely March 2016 notice of disagreement, the RO granted the application to reopen his service connection claims for peripheral neuropathy of the bilateral extremities and vision problems in a July 2018 statement of the case. However, the RO also subsequently denied the Veteran’s claims of service connection of peripheral neuropathy of the bilateral extremities and vision problems in the same July 2018 statement of the case. Evidence received since the July 2013 rating decision include VA and private medical records and VA examinations. The new evidence is sufficient to reopen the Veteran’s service connection claims for peripheral neuropathy of the bilateral extremities and vision problems, secondary to DM II. With the reopening of the claims, the Board proceeds with adjudication of the claims on their merits. REASONS FOR REMAND 1. Service connection for left upper extremity peripheral neuropathy, secondary to service-connected DM II, is remanded. 2. Service connection for right upper extremity peripheral neuropathy, secondary to service-connected DM II, is remanded. The Veteran underwent a VA examination to assess his DM II and peripheral neuropathy symptoms in June 2013. The examiner diagnosed the Veteran with diabetic peripheral neuropathy. The Veteran’s diabetic peripheral neuropathy demonstrated mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his bilateral upper extremities. Additionally, the examiner specifically noted that the Veteran suffered from upper extremity diabetic peripheral neuropathy, finding that the Veteran displayed mild incomplete paralysis of the ulnar and sciatic nerves. The median nerve was found as normal. Unfortunately, the examiner did not provide an etiology opinion for his findings regarding bilateral upper extremity peripheral neuropathy. The Board notes that the Veteran has sought only a secondary service connection for these claims, attributing the bilateral upper extremity peripheral neuropathy solely due to his service-connected DM II. In June 2018, the Veteran underwent an additional VA examination. The Veteran complained of bilateral occasional numbness and tingling in his hands with the splitting of ring finger in the distribution of the medial nerve. The Veteran reported that he had not sought medical attention for his bilateral hand symptoms. The examiner diagnosed the Veteran with diabetic peripheral neuropathy of the bilateral lower extremity, and explicitly found that the Veteran did not have upper extremity diabetic peripheral neuropathy. Rather, the Veteran was diagnosed with bilateral carpal tunnel syndrome. The June 2018 examiner did not explain why the Veteran was found to have diabetic peripheral neuropathy of the bilateral upper extremities in June 2013, but not found to have such disability in June 2018. The examiner distinguished that the Veteran’s bilateral carpal tunnel syndrome was less likely than not due to his service-connected DM II because it was a mechanical injury, not a metabolic one. The Board finds an addendum opinion is needed to discuss the disconnect between the findings of June 2013 and June 2018. Specifically, an opinion is needed as to whether the Veteran has a current diagnosis of peripheral neuropathy of the right or left upper extremity. Additionally, if a current diagnosis of peripheral neuropathy of the right or left upper extremity is found, an etiology opinion as to whether it is proximately due to and/or aggravated beyond its natural progression by his service-connected DM II is needed. 3. Service connection for vision problems, secondary to service-connected DM II, is remanded. The Veteran’s private optometrist diagnosed the Veteran with nonproliferative diabetic retinopathy without macular edema as early as January 2020. However, the private optometrist, nor any other medical professional, has provided an etiology opinion as to whether the Veteran’s vision problem is secondary to his DM II, as contended by the Veteran. On remand, an etiology opinion as to whether the Veteran’s vision problem is proximately due to and/or aggravated beyond its natural progression by his service-connected DM II is needed. 4. Entitlement to an initial rating in excess of 20 percent for DM II with erectile dysfunction is remanded. 5. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy is remanded. 6. Entitlement to an initial rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy is remanded. The Veteran was last afforded VA examinations to assess his service-connected DM II with erectile dysfunction and bilateral lower extremity diabetic peripheral neuropathy in June 2018. Thus, the Board finds that the Veteran should be afforded new VA examinations to determine the severity and manifestations of his service-connected DM II with erectile dysfunction and bilateral lower extremity diabetic peripheral neuropathy. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Board notes that in recent private and VA medical records, the Veteran’s DM II was described as without complication and without long term use of insulin. Additionally, the record reveals that the Veteran requires two medications, taken daily, as part of his treatment plan for DM II. 7. Entitlement to a TDIU is remanded. As noted above, the issue of a TDIU has been raised by the record. A request for a TDIU, reasonably raised by the record, is not a separate claim for benefits but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to whether the Veteran has a current diagnosis of peripheral neuropathy of the right or left upper extremity. (a.) If a diagnosis is found, the examiner should provide an opinion as to whether each diagnosis identified is at least as likely as not (i.e. 50 percent or greater) related to or proximately due to the Veteran’s service-connected DM II; or (b.) Whether each diagnosis identified is aggravated beyond its natural progression by the Veteran’s service-connected DM II. 2. Obtain an addendum opinion as to: (a.) Whether the Veteran’s nonproliferative diabetic retinopathy without macular edema is at least as likely as not (i.e. 50 percent or greater) related to or proximately due to the Veteran’s service-connected DM II; or (b.) Whether the Veteran’s nonproliferative diabetic retinopathy without macular edema is aggravated beyond its naturally progression by the Veteran’s service-connected DM II. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected DM II with erectile dysfunction. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All required testing should be obtained, as appropriate. In addition to other symptoms, the examiner should specifically note whether the Veteran’s DM II with erectile dysfunction requires insulin, restricted diet, oral hypoglycemic agent, regulation of activities, and/or episodes of ketoacidosis or hypoglycemic reactions requiring one to two hospitalizations per year or twice a month visits to a diabetic care provider. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral lower extremity diabetic peripheral neuropathy. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All required testing should be obtained, as appropriate. In addition to other symptoms, the examiner should specifically note whether the Veteran’s right or left lower extremity peripheral neuropathy causes moderate incomplete paralysis of the femoral nerve, severe incomplete paralysis of the femoral nerve, or complete paralysis of the quadriceps extensor muscles. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Once development of the above has been completed, notify the Veteran of what information or evidence is needed in order to substantiate the claim of entitlement to a TDIU. Invite him to provide any additional information which he believes may be relevant to his TDIU claim. Specifically, the RO should advise the Veteran to complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 6. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.