Citation Nr: 21061510 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-40 059 DATE: October 4, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II, is reopened. New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II, is reopened. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to an initial compensable disability rating prior to September 24, 2018 and in excess of 10 percent thereafter for bilateral cataracts is remanded. Entitlement to service connection for a bilateral retina disability, including diabetic retinopathy and retinoschisis, is remanded. FINDINGS OF FACT 1. The Veteran's claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, type II, were previously denied in a September 2010 rating decision. 2. Evidence received since the September 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities, to include as secondary to service-connected diabetes mellitus, type II. 3. The weight of the evidence shows that the Veteran's peripheral neuropathy of the right and left lower extremities is due to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria to reopen the finally denied claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, type II, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for peripheral neuropathy of the right and left lower extremities as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from March 1968 to October 1969, including overseas service in Vietnam. These issues come before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by a Department of Veterans Affairs (VA) Regional Office (RO) in February 2015 and June 2015. The Veteran initially requested a Board hearing in connection with his claim but withdrew his request in correspondence received in March 2021. Although the Veteran seeks entitlement to service connection for diabetic retinopathy, the record shows the Veteran has been diagnosed with other retina conditions, including retinoschisis. Accordingly, the Board will broaden the Veteran's claim to include any currently diagnosed retina condition. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran's petitions to reopen service connection claims in this case. Whether new and material evidence has been received to claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, type II In this case, a September 2010 rating decision denied the Veteran's claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, type II on the basis that there was no evidence of an in-service incurrence. The RO further found that service connection was not warranted as secondary to a lumbar disability because the Veteran was not service connected for a lumbar disability. The pertinent evidence of record at the time of the September 2010 rating decision, the most recent final decision, included the Veteran's service treatment records (STRs), VA and private medical treatment records, and the reports of VA examinations completed in April and September 2010. During the April 2010 VA examination, the Veteran denied experiencing peripheral neuropathy related to his type II diabetes mellitus. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The evidence associated with the claims file since the September 2010 rating decision includes VA examination reports showing diagnosis of bilateral lower extremity neuropathy, as well as additional VA treatment records documenting a history of and showing treatment for diabetes mellitus with peripheral neuropathy. Overall, the Board finds that the evidence submitted since the September 2010 rating decision is new and material. It directly relates to an unestablished fact necessary to substantiate the claimnamely, that the Veteran has current diagnoses of bilateral lower extremity peripheral neuropathy that are related to his service-connected diabetes mellitus, type II. The Board notes that this evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the Veteran's claims. Accordingly, reopening the claims of entitlement to service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, type II is warranted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310 (a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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 (1990). Entitlement to service connection for peripheral neuropathy of the right and left lower extremities, to include as secondary to service-connected diabetes mellitus, type II The Veteran seeks service connection for peripheral neuropathy of the right and left lower extremities, which he contends are related to diabetes mellitus, type II, for which he is service connected. The Board notes that a December 2014 VA examination report and numerous VA medical treatment records associated with the claims file confirm that the Veteran has been diagnosed with bilateral peripheral neuropathy. Therefore, as the first requirement for service connection is met, the Board's analysis will focus on the remaining elements of service connection, to include on a secondary basis. Turning to the evidence, the Board notes that the Veteran was most recently afforded a VA examination in connection with his claim in December 2014. The Veteran reported bilateral lower extremity peripheral neuropathy due to his service-connected diabetes mellitus, type II. He reported that pain in his feet, which he described as "needles, numbness and cramping" started in 2010, at which time he was prescribed Gabapentin. The examiner also noted that the Veteran reported symptoms from a (non-service connected) back condition that radiated into both legs. The examiner diagnosed bilateral peripheral neuropathy but noted that the Veteran had "extreme difficulty" answering questions about sensory perceptions during the examination, and therefore deemed the results of the examination "incongruent and therefore not reliable for objective assessment purposes." The examiner further determined that, based on the Veteran's reports of sensory changes extending proximally into the posterior thigh and buttocks, "the distribution of the claimed condition follows a radicular pattern" related to a non-service connected back condition. In reaching this conclusion, the examiner noted that the Veteran reported having undergone an EMG-NCV the day prior to the examination, but that the results were unavailable for review and did not factor into her opinion. Subsequent VA treatment records include the report of an October 2016 rehabilitation medicine consultation documenting an EMG-NCV that showed the Veteran had axonal sensori-motor polyneuropathy. A subsequent treatment note that the Veteran had neuropathy "confirmed by nerve studies" completed at a VA facility. A January 2017 VA pain clinic nursing note indicated that the Veteran described tingling and numbness in a stocking glove distribution consistent with diabetic neuropathy. A June 2017 pain clinic note concluded with a diagnostic impression of polyneuropathy of the bilateral lower extremities. Numerous subsequent VA treatment records associated the Veteran's bilateral peripheral neuropathy with his service-connected peripheral neuropathy. VA treatment records through the present list "diabetes mellitus with neuropathy" as an active problem for which the Veteran is being treated. Overall, based on the foregoing, the Board finds the evidence to be in approximate balance as to whether the Veteran's current peripheral neuropathy of the right and left lower extremities is due to his service-connected type II diabetes mellitus, and the Veteran is entitled to the benefit of the doubt. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Despite the December 2014 VA examiner's determination that the results of the examination were incongruent and thus not reliable for objective assessment purposes, subsequent VA treatment records show the Veteran was diagnosed with bilateral peripheral neuropathy based on EMG-NCV testing, and numerous VA practitioners associated his bilateral peripheral neuropathy with his type II diabetes mellitus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for peripheral neuropathy of the right and left lower extremities as secondary to his service-connected type II diabetes mellitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND The Board finds that the remaining issues on appeal must be remanded for outstanding records, as well as for a new VA eye examination to determine the current severity of his cataracts and to clarify the nature and etiology of any diagnosed retina disabilities, including retinopathy and retinoschisis, as the most recent negative nexus opinion did not include an adequate rationale. Regarding the claim of entitlement to increased ratings for bilateral cataracts, the Board notes that the Veteran was afforded a VA examination in May 2015. The examination report indicates that visual field testing was completed, and in the remarks section, the examiner wrote, "[s]uspect some left field neglect or left blurry defect bilaterally with missing letters on VA testing[.]" Of the visual field charts, the examiner wrote that the report was "available on VistA Imaging via CAPRI's VistAWeb tab." Unfortunately, to date, the visual field charts have not been associated with the claims file and are unavailable for review. Therefore, remand is warranted to attempt to obtain the visual field charts from the May 2015 VA eye examination, as they may be relevant to the Veteran's increased rating claims. Additionally, the Veteran was most recently afforded a VA examination concerning the severity of his disability in September 2018. However, recent VA ophthalmology treatment records show that the Veteran's corrected visual acuity has decreased since the September 2018 examination. Further, a June 2020 VA ophthalmology treatment note indicates that the Veteran is "not able to see all of the picture, as if having blind spots." A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, remand is warranted for a new VA examination to determine the current severity of the Veteran's disability and the pathology of any documented visual impairment. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA medical treatment records, including Goldmann visual field charts from the Veteran's May 2015 VA eye examination, as well as treatment records from March 2021 to the present. 2. Then, schedule the Veteran for a VA eye examination to determine the current severity of his service-connected bilateral cataracts, as well as the nature and etiology of any retina condition diagnosed at any point during the period on appeal, including retinoschisis. The examination must be completed by a licensed optometrist or ophthalmologist. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. The examiner should specifically identify the disease, injury, or other pathologic process responsible for any visual impairment found and describe in detail all pertinent symptomatology and findings. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner should consider all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and effective from May 13, 2018). After careful review of the claims file and physical examination of the Veteran, the examiner is asked to answer the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a retina condition, including retinopathy and/or retinoschisis, that was incurred in or manifested within a year of separation from active service? (b.) If the answer to (a) is no, was the diagnosed retina condition caused or aggravated (increased in severity beyond the natural progression) by his service-connected type II diabetes mellitus? The term "aggravated" in the above context does not require that there be "permanent" worsening of the nonservice connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. A clear rationale for any opinion expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, readjudicate the claims on appeal. If the claims remain denied, provide the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.