Citation Nr: 21005098 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-07 236 DATE: January 29, 2021 ORDER Entitlement to service connection for the aggravation of chronic kidney disease by diabetes mellitus is granted. Entitlement to service connection for hypertension, due to service-connected diabetes mellitus, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) with major depressive disorder with psychotic symptoms is granted. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with bilateral cataracts is dismissed. REMANDED Entitlement to an initial rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to an initial compensable rating for erectile dysfunction is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection has been established for diabetes mellitus with bilateral cataracts, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and erectile dysfunction. 2. Chronic kidney disease has been shown to be aggravated by service-connected diabetes mellitus. 3. Hypertension has been shown to be due to service-connected diabetes mellitus. 4. PTSD with major depressive disorder with psychotic symptoms is related to combat service in Vietnam. 5. In an April 2020 written statement, the Veteran’s agent expressly withdrew the appeal for an initial rating in excess of 20 percent for diabetes mellitus with bilateral cataracts. CONCLUSIONS OF LAW 1. The criteria for service connection for the aggravation of chronic kidney disease by service-connected diabetes mellitus are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for hypertension, due to service-connected diabetes mellitus, are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for PTSD with major depressive disorder with psychotic symptoms have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for withdrawal of the appeal for an initial rating in excess of 20 percent for diabetes mellitus with bilateral cataracts are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1965 to October 1968. He served in the Republic of Vietnam and was awarded the Combat Infantryman Badge. The Veteran appeared at an April 2020 videoconference hearing before the undersigned Veterans Law Judge. Due to technical difficulties, the hearing transcript could not be produced. In September 2020, the Board of Veterans’ Appeals (Board) notified the Veteran of the unavailability of the hearing transcript and that he could therefore request an additional hearing. The Veteran was informed that if he did not respond within 30 days, the Board would assume that he did not want another hearing. The Veteran did not respond to the Board’s notice. Service Connection Service connection may be established for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may also be established for disability which is proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis where it is demonstrated that a service connected disability has aggravated a nonservice connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for diabetes mellitus with bilateral cataracts, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and erectile dysfunction. Kidney Disability The Veteran asserts that service connection for a kidney disability is warranted as the disability was incurred secondary to the service connected diabetes mellitus. A July 2010 treatment record from A. Wolfert, M.D., states that the Veteran was diagnosed with chronic kidney disease attributed to hypertensive nephrosclerosis. An April 2011 Department of Veterans Affairs (VA) Agent Orange evaluation states that the Veteran was diagnosed with chronic kidney disease. The report of a January 2014 VA examination found that the diagnosed renal disease was less likely than not (less than 50 percent probability) proximately due to or the result of the service connected disability. The examiner commented that “there is no macroalbuminuria or retinopathy, which indicates his chronic kidney disease is not likely secondary to diabetes” and “private medical records indicate the Veteran is diagnosed with chronic renal failure secondary to nephrosclerosis which is the renal changes occurring in the setting of benign hypertension.” The nurse-practitioner did not address whether service-connected diabetes mellitus aggravated (increased in severity beyond the disability’s natural progression) the diagnosed chronic kidney disease. A March 2020 diabetes mellitus evaluation from P. Slominay, M.D., states that the Veteran was diagnosed with “diabetic neuropathy or renal dysfunction caused by diabetes mellitus.” Dr. Slominay concluded that the service connected diabetes mellitus “at least as likely as not (at least 50% probability) permanently aggravated” the diagnosed renal disease. The Veteran has been diagnosed with chronic renal disease. A physician has attributed the diagnosed kidney disability to aggravation by service connected diabetes mellitus. Therefore, the Board finds the evidence is in at least equipoise as to whether the diagnosed chronic kidney disease is aggravated by service connected diabetes mellitus. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for the aggravation of chronic kidney disease by service-connected diabetes mellitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hypertension The Veteran asserts that service connection for hypertension is warranted as the disability was incurred secondary to service-connected diabetes mellitus. A July 2006 treatment record from B. Donohue, M.D., states that the Veteran was diagnosed with hypertension. An April 2011 VA Agent Orange evaluation states that the Veteran was diagnosed with diabetes mellitus, hypertension, and chronic kidney disease. The report of the January 2014 VA examination shows that the diagnosed hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of the service connected disability. The examiner commented that “records indicate hypertension most likely preceded diabetes and in the absence of diabetic nephropathy would not be secondary to diabetes.” The nurse-practitioner did not address whether the service connected diabetes mellitus aggravated the diagnosed hypertension. A March 2020 diabetes mellitus evaluation from Dr. Slominay states that the Veteran was diagnosed with hypertension. That doctor concluded that the hypertension was “at least as likely as not (at least a 50% probability) due to diabetes mellitus” and the service connected diabetes mellitus “at least as likely as not (at least 50% probability) permanently aggravated” the hypertension. The Veteran has been diagnosed with hypertension. A physician has attributed the diagnosed hypertension to the service-connected diabetes mellitus. Therefore, the Board finds the evidence is in at least equipoise as to whether the diagnosed hypertension is related to service-connected diabetes mellitus. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for hypertension, due to service connected diabetes mellitus, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Psychiatric Disability The Veteran asserts that service connection for PTSD is warranted as the claimed disability originated during active service secondary to combat related traumatic experiences in the Republic of Vietnam. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in service stressor. 38 C.F.R. § 3.304(f). The service personnel records show that the Veteran served with the Army in the Republic of Vietnam and received the Combat Infantryman Badge. Therefore, the Veteran’s participation in combat is conceded. 38 U.S.C. § 1154. A June 2020 psychiatric evaluation from R. Sherman, Ph.D., states that the Veteran was diagnosed with chronic PTSD and major depressive disorder with psychotic symptoms. Dr. Sherman recited the Veteran’s statements regarding combat events during service. Dr. Sherman opined that it was at least as likely as not that PTSD was due to combat events during the Veteran’s service in Vietnam. The Veteran served in the Republic of Vietnam and was awarded the Combat Infantryman Badge. He has been diagnosed with chronic PTSD with major depressive disorder with psychotic symptoms related to Vietnam War combat experiences by a psychologist. Therefore, the Board concludes that service connection is warranted for PTSD and major depressive disorder with psychotic symptoms. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Withdrawal In an April 2020 written statement, the Veteran’s agent expressly withdrew the appeal for an initial rating in excess of 20 percent for diabetes mellitus with bilateral cataracts. A veteran or authorized representative may withdraw a substantive appeal in writing at any time prior to the Board’s promulgation of a decision. 38 C.F.R. § 20.205. The Board finds that the Veteran’s agent has effectively withdrawn the appeals for an initial rating in excess of 20 percent for diabetes mellitus with bilateral cataracts. Therefore, the Board concludes that no allegation of fact or law remains as to that issue and the appeal must be dismissed. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement initial ratings in excess of 20 percent for right and left lower extremity peripheral neuropathy and an initial compensable rating for erectile dysfunction is remanded. The Veteran asserts that higher initial ratings for right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and erectile dysfunction are warranted. The Veteran was last provided a VA examination which addressed the service connected peripheral neuropathy in June 2012. He has not been provided a VA examination which addresses erectile dysfunction. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because of the passage of over eight years since the most recent VA peripheral neuropathy examination and the absence of a VA erectile dysfunction examination, the Board finds that further VA evaluation is necessary. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Clinical documentation dated after March 2020 is not of record. VA clinical documentation dated after September 2015 is not of record. 2. Entitlement to TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. The claim is inextricably intertwined with other issues being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for the service connected peripheral neuropathy and erectile dysfunction disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated after September 2015. 3. Schedule the Veteran for a VA neurology examination conducted by a physician to assist in determining the nature and severity of service-connected right lower extremity and left lower extremity peripheral neuropathy. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide a description of symptoms for both lower extremities and opine as to the level of severity of the lower extremity peripheral neuropathy in each extremity. All affected nerves should be specifically identified. (b) Opine whether the lower extremity peripheral neuropathy causes any impairment of mobility. (c) The examiner should provide an opinion as the impact of the lower extremity neurological disabilities on the Veteran’s vocational activities. (d) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Schedule the Veteran for a VA examination conducted by the appropriate physician to assist in determining the current nature and severity of service-connected erectile dysfunction. The examiner must review the record and should note that review in the report. The examiner should opine whether there is penile deformity. A rationale for all opinions should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.