Citation Nr: 21069405 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-31 982 DATE: November 18, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for right upper extremity peripheral neuropathy is reopened. As new and material evidence has been received, the claim of entitlement to service connection for left upper extremity peripheral neuropathy is reopened. As new and material evidence has been received, the claim of entitlement to service connection for right lower extremity peripheral neuropathy is reopened. As new and material evidence has been received, the claim of entitlement to service connection for left lower extremity peripheral neuropathy is reopened. Entitlement to service connection for Type II diabetes mellitus, claimed as the result of herbicide agent exposure, is denied. A 10 percent rating for bilateral hearing loss is granted. REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy, claimed as the result of herbicide agent exposure, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, claimed as the result of herbicide agent exposure, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, claimed as the result of herbicide agent exposure, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, claimed as the result of herbicide agent exposure, is remanded. Entitlement to service connection for an acquired eye disability to include glaucoma, claimed as the result of herbicide agent exposure, is remanded. FINDINGS OF FACT 1. A November 2002 rating decision denied service connection for right upper extremity, left upper extremity, right lower extremity, and right lower extremity peripheral neuropathy. The Veteran did not submit a timely notice of disagreement and the November 2002 rating decision is final. 2. The additional evidence received since the November 2002 rating decision is new and material. 3. The Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents. 4. Type II diabetes mellitus was not objectively manifested during active service or at any time thereafter. 5. The service connected bilateral hearing has been shown to be manifested by no more than right ear Level III auditory acuity, left ear Level IV auditory acuity, and an impaired ability to hear conversations. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying the service connection for peripheral neuropathy of the right upper extremity, the left upper extremity, the right lower extremity, and the left lower extremity is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claims for service connection for peripheral neuropathy of the right upper extremity, the left upper extremity, the right lower extremity, and the left lower extremity has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for a 10 percent rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to February 1971. He served in the Republic of Vietnam. Application to Reopen for Peripheral Neuropathy A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans' Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). A November 2002 rating decision denied service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy as "these conditions were neither occurred in nor were caused by service;" right upper extremity and left upper extremity peripheral neuropathy "are not shown by the evidence;" and "peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity were not manifested to a compensable degree within one year of discharge from service." The Veteran was informed in writing of the adverse decision and his appellate rights. He did not submit a notice of disagreement with the decision. The evidence considered by the Agency of Original Jurisdiction in reaching the November 2002 rating decision included service treatment records, service personnel records, and Department of Veterans Affairs (VA) examination and clinical records. The service treatment records do not refer to peripheral neuropathy. The service personnel records reflect that the Veteran served in the Republic of Vietnam. A November 2001 VA treatment record conveys that the Veteran complained of chronic numbness and tingling of the hands and the legs. An October 2001 VA electromyographic study notes that the Veteran complained of tingling in the feet of several years' duration. The study revealed findings consistent with sensory neuropathy involving both sural nerves. The report of an August 2002 examination conducted for VA states that the Veteran presented a history of tingling in his arms and legs since 1970. A contemporaneous electromyographic study revealed findings consistent with bilateral carpal tunnel syndrome. The Veteran was diagnosed with a "diffuse sensory anomaly." New and material evidence pertaining to the issue of entitlement to service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the November 2002 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the November 2002 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran. VA clinical documentation in April 2020 states that the Veteran complained of numbness and tingling in the hands and the feet. He was diagnosed with neuropathy. VA clinical documentation dated in October 2020 states that the Veteran "had a long standing history of intense tingling and numbness in his hands." The Board finds that the VA clinical documentation dated in April 2020 and October 2020 to be of such significance that it raises a reasonable possibility of substantiating the claims for service connection for peripheral neuropathy when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that the Veteran experienced peripheral neuropathy of the upper and lower extremities since active service. As new and material evidence has been received, the claims of entitlement to service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy are reopened. The issues of entitlement to service connection for service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy, claimed as the result of herbicide agent exposure, will be addressed below in the Remand portion of this decision below. Service Connection for Diabetes Mellitus The Veteran asserts that service connection for diabetes mellitus is warranted as he has been diagnosed with the claimed disability and the disorder is related to his presumed herbicide agent exposure while in the Republic of Vietnam. Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §1110. Service connection may 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). Where a veteran was exposed to an herbicide agent during active service and Type II diabetes mellitus becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for that disability if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of that disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any herbicide agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in the Republic of Vietnam. Therefore, he is presumed to have been exposed to herbicide agents. The record does not establish that the Type II diabetes mellitus has been objectively diagnosed during active service or at any time thereafter. VA clinical documentation dated in November 2001 indicates the Veteran was diagnosed with Type II diabetes mellitus. In his March 2002 informal claim for service connection, the Veteran asserted that he had "diabetes Type II due to exposure to Agent Orange." An August 2002 VA treatment record states that the Veteran reported that he was a diabetic. The report of an August 2002 VA diabetes mellitus examination states that the Veteran reported that he had been told by his psychiatrist that he had diabetes mellitus. The examiner stated that the Veteran's medical records were unavailable for review. The examiner stated that there were no current findings of diabetes mellitus on examination. Given the absence of the Veteran's records, the examination report is of limited probative value. A July 2011 VA emergency department treatment record conveys that the Veteran reported that he had diabetes mellitus. He clarified that he took no diabetic medications. In his August 2014, Appeal to the Board, VA Form 9, the Veteran reiterated that he had been diagnosed with Type II diabetes mellitus. He clarified that he treated the disability with diet and exercise. A September 2014 VA treatment record states that the Veteran related that he had been told that he was a diabetic in 2001 and then was "told that he did not have" diabetes mellitus. VA eye treatment records dated in August 2017 and September 2018 state that the Veteran had been initially diagnosed with diabetes mellitus in 2002. A May 2020 VA chronic pain consultation notes that "there is no history of diabetes mellitus." The report of a September 2020 diabetes examination conducted for VA stated that the Veteran did "not meet criteria for diagnosis of diabetes" and there was no "official diagnosis" of either Type II diabetes mellitus or Type I diabetes mellitus. The examining physician commented that: "the service medical records do not show any objective evidence of the diagnosis of or treatment for Type II diabetes mellitus; nor is there any such evidence within one year of discharge from the service;" "although a summary of records from the VAMC in Hampton indicates the diagnosis of non-insulin dependent diabetes mellitus, a review of the actual treatment and examination records do not show a diagnosis of diabetes mellitus;" "all testing results for diabetes mellitus in the available medical records do not provide confirmation of the diagnosis of diabetes;" and "accordingly, the diagnosis of diabetes in unable to be confirmed in this veteran based on the available medical records." There is VA clinical documentation of record conveying that the Veteran has Type II diabetes mellitus. However, the entries neither provide the basis of such a diagnosis nor reflect any ongoing diabetic symptoms or treatment. The September 2020 VA diabetes examination report specifically addresses the diabetes mellitus diagnoses of record and concludes that "although a summary of records from the VAMC in Hampton indicates the diagnosis of non-insulin dependent diabetes mellitus, a review of the actual treatment and examination records do not show a diagnosis of diabetes mellitus" and "all testing results for diabetes mellitus in the available medical records do not provide confirmation of the diagnosis of diabetes." The Board notes that there is no documentation of any clinical testing that supports a diabetes mellitus diagnosis. The Veteran asserts that he has Type II diabetes mellitus. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is not competent to offer an opinion regarding the diagnosis of diabetes mellitus. Such a diagnosis is not amenable to observation by a lay person and requires specific clinical testing and correlation. It is too complex to be addressed by a layperson. The objective clinical evidence of record does not establish that Type II diabetes mellitus was manifested during active service or at any time thereafter. Accordingly, the Board finds that service connection may not be granted. Increased Rating for Bilateral Hearing Loss The Veteran contends that a compensable rating is warranted for the service connected bilateral hearing loss as he experiences poor speech recognition despite using hearing aids. Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The assignment of ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The report of a July 2011 audiological examination conducted for VA, the Veteran reported that he had difficulty understanding conversations. On audiometric evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 15 35 75 36.25 LEFT 25 20 25 85 38.75 Speech audiometry found speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. Such findings denote bilateral Level II hearing acuity. 38 C.F.R. § 4.85, Table VI. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The report of a September 2020 audiological examination conducted for VA, the Veteran reported that he had difficulty understanding others. On audiometric evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 25 50 80 43.75 LEFT 20 30 60 90 50 Speech audiometry found speech recognition ability of 88 percent in the right ear and 82 percent in the left ear. Such findings denote right ear Level II hearing acuity and left ear Level IV hearing acuity. 38 C.F.R. § 4.85, Table VI. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The report of an August 2021 audiological examination conducted for VA, the Veteran reported that he had difficulty understanding conversations. On audiometric evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 10 15 50 80 38.75 LEFT 10 20 60 90 45 Speech audiometry found speech recognition ability of 82 percent in the right ear and 76 percent in the left ear. Such findings denote bilateral Level III hearing acuity. 38 C.F.R. § 4.85, Table VI. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The service connected bilateral hearing has been shown to be manifested by no more than right ear Level III auditory acuity, left ear Level IV auditory acuity, and an impaired ability to hear conversations. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Such findings warrant a 10 percent rating and no higher under Diagnostic Code 6100. REASONS FOR REMAND 1. Entitlement to service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy, claimed as the result of herbicide agent exposure is remanded. The claims for service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy have been reopened. However, the Board finds that further development is needed before the claim can be adjudicated. 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, 124 (1991). The Board finds that further VA neurological examination is needed. Clinical documentation dated after August 2021 is not of record. 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). 2. Entitlement to service connection for an acquired eye disability to include glaucoma, claimed as the result of herbicide agent exposure, is denied. The Veteran asserts that service connection for an acquired eye disability is warranted as he has been diagnosed with glaucoma secondary to his presumed herbicide agent exposure in the Republic of Vietnam. In a May 1971 Veteran's Application for Compensation or Pension, VA Form 21 526, the Veteran asserted that service connection was warranted for "eye problems sight failure." A June 1971 VA outpatient treatment record states that his vision "got worse while he was in the service." The Veteran has not been afforded a VA eye examination. The Board finds that such an evaluation is needed to determine the current nature of the claimed disability and its relationship, if any, to active service. 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 treated him for any peripheral neuropathy and acquired eye 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. Associate with the record any VA medical records not already of record, including those pertaining to treatment since August 2021. 3. Schedule the Veteran for a VA neurological examination conducted by a medical doctor to assist in determining the nature and etiology of any identified upper extremity and lower neurological disability and any relationship to active service. 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) Diagnose all upper extremity and lower extremity neurological disabilities found. If peripheral neuropathy is not identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified upper extremity and lower extremity neurological disabilities had their onset during active service or is related to any incident of service, including the Veteran's presumed herbicide agent exposure in the Republic of Vietnam and his subjective history of arm and leg tingling during active service. 4. Schedule the Veteran for a VA eye examination conducted by a medical doctor to assist in determining the nature and etiology of any identified acquired eye disability and any relationship to active service. 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) Diagnose all acquired eye disabilities found. If glaucoma is not diagnosed, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified acquired eye disability had its onset during active service or is related to any incident of service, including the Veteran's presumed herbicide agent exposure in the Republic of Vietnam and his subjective history of eye problems during active service. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate 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.