Citation Nr: 21075199 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-31 777 DATE: December 17, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for urinary dysfunction, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, is denied. Entitlement to special monthly compensation for loss of use of a creative organ is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not support that the Veteran has a current disability of diabetes mellitus. 2. The evidence is insufficient to establish that the Veteran's urinary dysfunction condition is related to service or secondary to a service-connected disability. 3. The evidence is insufficient to establish that the Veteran's erectile dysfunction is related to service or secondary to a service-connected disability. 4. The evidence does not establish that the Veteran has loss of use of a creative organ that is a result of a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for urinary dysfunction have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a). 3. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a). 4. The criteria for entitlement to special monthly compensation for loss of use of a creative organ have not been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1950 to November 1954, from February 1955 to February 1965, and from April 1965 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. The Veteran contends that he has diabetes mellitus type 2 and that it is caused by his in-service exposure to herbicide agents, a fact which has been conceded by VA. Secondary to his diabetes, the Veteran seeks service connection for neuropathy of the upper and lower extremities, bladder dysfunction, and erectile dysfunction. He also seeks service connection for bilateral hearing loss and tinnitus, and special monthly compensation (SMC) for loss of use of a creative organ. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans exposed to herbicide agents, certain diseases are presumed to be associated with exposure to herbicide agents. 38 C.F.R. § 3.307(a). Type 2 diabetes, as well as early-onset peripheral neuropathy, are listed among those diseases. 38 C.F.R. § 3.309(e). For early-onset peripheral neuropathy, the disease must have become manifest to a compensable degree within a year after the last date on which the veteran was exposed to herbicide in service. 38 C.F.R. § 3.307(a)(6)(ii). Type 2 diabetes must have become manifest to a compensable degree at any time after service. Id. Service connection may also be granted for a current disability that is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service Connection for Diabetes Mellitus The Board turns first to the Veteran's claim for service connection for diabetes. As discussed above, type 2 diabetes mellitus is presumed to be connected to exposure to herbicide agents, and VA has conceded that the Veteran was exposed to herbicide agents during his service. Thus, the remaining issue for establishing service connection is whether the Veteran has a diagnosis of type 2 diabetes mellitus at any time since his claim was filed. Following receipt of the Veteran's September 2016 claim in which he stated that he had been treated at VA medical centers for diabetes, VA treatment records were associated with the record that showed the Veteran had historically been followed for diabetes, to include having been prescribed glipizide. The Veteran was offered a VA examination but declined as he was unable to attend at that time. In lieu of an examination, a clinician reviewed the Veteran's medical history in March 2018 to consider whether he had a current diagnosis of diabetes. The clinician noted that as of July 2016, the Veteran's providers had recommended that he stop taking glipizide "as blood sugars are normal and hemoglobin A1C is normal." Moreover, at an August 2017 checkup appointment the Veteran's medication list did not include any medication for blood sugar, and "random blood glucose was 104 and hemoglobin A1C was 5.7 on that date," which did not support a diagnosis of diabetes. The March 2018 clinician noted that prior VA treatment notes indeed had discussed the Veteran's diabetes, although they had found his A1C levels normal and described the condition as well controlled. For example, on December 3, 2014, the Veteran's A1C was 5.2, which the March 2018 clinician noted is "far below the diabetes level" (while acknowledging the Veteran had been prescribed a 2.5mg dose of glipizide at that time). The clinician also noted the treatment records showed the Veteran was not checking his blood sugars at home and there were no notes discussing diet or weight loss; "[d]espite this, various notes from 2004 refer to his 'well controlled diabetes', a diagnosis which seems to have been based on [the] Veteran's own statements about care from prior to his establishing care at the VA." The clinician stated that there were mentions of a prior period of incarceration, for which medical records were not available in her initial review. After her summary review of the records available at that time, the clinician concluded that "it appears the Veteran presented to the VA system with prior diagnosis of what was termed 'diabetes' for which [a] very low dose [of] glipizide had been prescribed, a medication [which] was later felt to be unnecessary and which was discontinued given the quite low blood sugar data (data which did not support a diabetes diagnosis albeit done while on glipizide)." Following cessation of the glipizide, "there was indeed a modest increase in A1C from 5.2 to 5.7, but . . . even without the drug, [the] Veteran did not meet [the] definition of diabetes." "Whether [the Veteran] did previously meet formal criteria for diagnosis of diabetes is unclear as we do not have records from the care provider who apparently started the glipizide. Thus, whether he previously met formal diabetes criteria or whether, instead, this was some more 'transient' blood sugar issue (related to some other medical condition or treatment) which prompted the prior glipizide [prescription] is completely unknown. While it is true that patients sometimes do meet formal criteria but then 'diet down' to 'below criteria', there is no indication in this Veteran's record that he did significant dietary change or that he had significant weight loss that might have 'lowered' his ongoing A1C levels. In sum, we are left with mere speculation as to whether he ever previously met formal diabetes diagnosis criteria. However, what we can . . . say is that this Veteran does not currently meet criteria for diagnosis of diabetes, given that his A1C of 5.7 after cessation of the glipizide puts him at the 'low end' of solely 'pre'-diabetes." Later that month, treatment records from the Veteran's provider during his incarceration were associated with his VA claims file. Thus, the March 2018 clinician was asked to review those medical records as well. She stated that "[r]eview of these records (mainly lab results, though also some triage/RN notations and handwritten overwriting . . . on the lab sheets. . . . On one of these sheets is comment 'diabetic' [which] was written apparently despite the same lab results showing hemoglobin A1C far below the diabetic level." Specifically, there were "3 measurements of hemoglobin A1C included in these records. They are: 9/2011 A1C level of 5.2 (not even in the 'prediabetes' range), 2/2012 at 5.6 (also not even in the 'prediabetes' range), and 2/2013 at 5.4 (also not even in the prediabetes range)." There was also a 2013 random lab draw labeled "high" by the computer "for a level of 111 (actually normal for nonfasting and even if fasting, would not have met criteria for diabetes)." While these treatment notes during incarceration indicate the Veteran was taking glipizide at that time, which would have lowered his A1C, the clinician "would point again to the fact that glipizide's effect has a limited 'magnitude' and that we saw that in subsequent care records from the VA, Veteran's A1C increased from 5.2 (on glipizide) to 5.7 after ceasing the medication, . . . an increase which still did not put Veteran into the level needed to confirm diabetes (i.e. at least 6.5 on two occasions)." The clinician also noted newly submitted records including a "chronic 'problem list' sheet with various entries between 1995 and 2006," which listed diabetes. "Actual sugars from this flow sheet, however, are (fasting glucoses of) 107 (9/2011), 90 (6/2011) and 89 (10/2011), [which were] still not consistent with diabetes despite the fact that these sugars were listed on a diabetes flow sheet." She remarked that the Veteran had lost some weight during his incarceration ("was 221 in 1995 entry note and was down to 206 by 10/2011") and that this was "a difference which may have impacted sugar readings to a small extent. Again, however, this weight difference is not significant enough to make a large difference in sugar readings." It was noted that the Veteran's recommendations for a restricted diet would have been "medically recommended for anyone with obesity particularly in the setting of hypertension and renal disease"; thus, the recommendation was "nonspecific in nature and not sufficient to otherwise confirm a diagnosis of diabetes." The clinician raised the possibility of "whether a physician thought that [an] aggressive approach to possible 'prediabetes' level sugars in the setting of obesity, hypertension, renal disease and peripheral neuropathy symptoms 'warranted' glipizide treatment." In particular, she noted that "prediabetes" is "often referred to erroneously in some notes as 'diabetes' in part . . . for billing purposes in the past." While she was "highly suspicious that this was the case for him," the record still ultimately did not contain "the crucial medical notes from th[e] initial treatment decision (apparently sometime after 1995 and before 2011) and presumably some corresponding lab findings during that period." What she could, however, "say with certainty is that there is still no evidence of any labs that actually meet criteria for formal diagnosis of diabetes despite the fact that glipizide treatment was apparently initiated during the incarceration period and despite the fact that Veteran underwent monitoring 'as if' for diabetes." This conclusion followed "review [of] data from 2011, 2012, 2013 (during incarceration), 2014 and 2017 (after release), all without finding evidence that this Veteran ever truly 'qualified' for a diagnosis of diabetes. Thus the 'listing' of a diabetes diagnosis in the incarceration care records appears (in the absence of an initiating [prescription] note and corresponding lab work which must have occurred somewhere between 1995 and 2011) to have been 'erroneous.'" In November 2018, the Veteran was able to appear for a VA diabetes examination. Results of testing found the Veteran did not meet the criteria for a diagnosis of diabetes. "The Veteran is not currently on any diabetes medications and his most recent A1C was normal at 5.3 on 5/16/2018[,] with a normal blood glucose of 92." After review of the Veteran's medical history, including his treatment records during incarceration, the November 2018 clinician was unable to find any evidence to support a prior diagnosis of diabetes. Based on all the evidence of record, the Board finds that the evidence is insufficient to establish that the Veteran has had a current diagnosis of diabetes mellitus at any time since receipt of his service-connection claim in 2016, as the diagnostic evidence since that time has not supported a diagnosis of diabetes. Regarding the Veteran's prior prescription for glipizide, two clinicians reviewed the Veteran's medical history, to include records from the years leading up to the date of his claim, and found that there was not sufficient evidence to support the diagnosis of diabetes. The March 2018 clinician undertook an extremely thorough and comprehensive review of the Veteran's file and concluded that a current diagnosis could not be supported, offering possible explanations for the prior purported diagnosis. She noted that the historical diagnostic testing was not supportive of a diagnosis of diabetes at those times, even accounting for the possibility of other factors having improved the Veteran's A1C and blood sugar such as medication and weight loss. Moreover, she found persuasive the fact that the Veteran's A1C had increased only to 5.7 after his providers discontinued glipizide. Beyond the Veteran's historical treatment for diabetes, the Board finds no other evidence to support that he had a current diagnosis of diabetes at any time since the filing of his claim in September 2016. As to the possibility of any records in which the Veteran was initially prescribed glipizide, at the August 2021 Board hearing it was related that there were no further outstanding VA or private medical records for the Veteran's claim. Accordingly, without sufficient evidence of a current disability, the claim for service connection for diabetes mellitus must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). 2. Service Connection for Urinary Dysfunction The Veteran seeks service connection for a urinary dysfunction, to include frequent urination and a hesitant, weak stream. He originally suggested that this condition could be related to his claimed diabetes. A VA examination was provided in November 2018. After physical examination of the Veteran and review of his files, the clinician opined that "[the Veteran's] symptoms of urinary frequency and his age (86 years old) are suggestive that the cause of his urinary frequency is likely due to benign prostatic hyperplasia." The Board finds this is the most probative evidence of record as to the etiology of the Veteran's urinary dysfunction condition, and it has attributed the condition to benign prostatic hyperplasia, which is not a service-connected condition. Throughout the remainder of the record, there is no other allegation or evidence to support that the Veteran's urinary dysfunction condition is due to service or a service-connected disability. Accordingly, entitlement to service connection for urinary dysfunction is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a). 3. Service Connection for Erectile Dysfunction The Veteran seeks service connection for erectile dysfunction, which he also contended was secondary to his claimed diabetes. At the November 2018 VA examination, though the Veteran was diagnosed with erectile dysfunction, the examiner concluded after a review of the Veteran's medical history that the condition was attributable to "tobacco use and hypertension." This is the most probative competent evidence of record as to the cause of the Veteran's erectile dysfunction, and neither tobacco use nor hypertension are service-connected conditions. There is no other allegation from the Veteran or evidence of record relating the erectile dysfunction to service or a service-connected disability. Thus, entitlement to service connection for erectile dysfunction must be denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a). 4. Special Monthly Compensation Regarding the claim for SMC, compensation is available where a veteran has suffered the loss of use of a creative organ as a result of a service-connected disability. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). Having found that service connection for erectile dysfunction is not warranted, and finding no evidence to support that the Veteran's erectile dysfunction is related to another service-connected disability, the Board finds that the evidence does not support that the Veteran's loss of use of a creative organ is the result of a service-connected disability. Thus, entitlement to special monthly compensation for loss of use of a creative organ must be denied. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). REASONS FOR REMAND The Board finds that remand is required for the remaining claims. Regarding service connection for peripheral neuropathy of the upper extremities, a VA examination was provided in November 2018 at which the Veteran reported intermittent numbness in his fingertips in both hands. Moreover, as noted by the examiner, the Veteran wrote on his May 1975 separation report of medical history that he had "periodic tingling in both hands." Nevertheless, the November 2018 examiner did not diagnose the Veteran with any neuropathic condition in the upper extremities or discuss whether the Veteran's reported symptoms in his hands were related to his service. Accordingly, the November 2018 examination report is inadequate, and a new opinion should be provided. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding service connection for peripheral neuropathy of the lower extremities, though the November 2018 VA examiner did diagnose the Veteran with lower-extremity peripheral neuropathy, she suggested that the neuropathy is diabetic in nature despite that the Veteran's "blood sugars have normalized off the diabetic medications." This opinion fails to fully explain the suggested mechanism of etiology (that is, why diabetic neuropathy would persist notwithstanding normalized blood sugars), and therefore the Board will direct for an addendum opinion for further reasons and bases for the November 2018 opinion, or in the alternative, a discussion of a potential relation to the Veteran's now-service-connected hypothyroidism. Regarding the claims for bilateral hearing loss and tinnitus, there is not yet audiological testing or other sufficient evidence regarding whether any current hearing loss disability or tinnitus may be connected to the Veteran's decades-long service working on or near the flight line as an aircraft maintenance technician. The record reflects that though VA examinations were requested, the scheduler was unable to reach the Veteran. At the Board hearing, the Veteran stated he never received notice about the scheduling of his examinations, and it was suggested that he may need still need examinations. Thus, the Board will remand the claims for another attempt to schedule a VA examination for bilateral hearing loss and tinnitus. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of any condition manifesting in the Veteran's current numbness of the bilateral upper extremities, to include peripheral neuropathy. It is left to the clinician's discretion whether a new examination is needed. For any condition diagnosed, the clinician must opine on all of the following: (a) If the Veteran is diagnosed with peripheral neuropathy of the upper extremities, was the condition at least as likely as not incurred during the Veteran's active-duty service or within one year of his service in Vietnam (Vietnam service through January 1971)? The clinician must consider and discuss that on the Veteran's May 1975 separation report of medical history, he wrote that he had experienced periodic tingling in both hands. (b) Is any diagnosed condition at least as likely as not directly due to the Veteran's service, to include his exposure to herbicide agents? Consider and discuss the Veteran's May 1975 separation report of medical history on which the Veteran wrote that he had periodic tingling in both hands. (c) Is any diagnosed condition at least as likely as not either proximately due to or aggravated (worsened beyond the normal course of the disease) by the Veteran's service-connected hypothyroidism? 2. Obtain an opinion regarding the etiology of the Veteran's diagnosed peripheral neuropathy of the lower extremities. The clinician must opine on the following: (a) Is the peripheral neuropathy of the lower extremities at least as likely as not directly due to the Veteran's service, to include his exposure to herbicide agents? (b) Is the peripheral neuropathy of the lower extremities at least as likely as not either proximately due to or aggravated (worsened beyond the normal course of the disease) by the Veteran's service-connected hypothyroidism? 3. Schedule the Veteran for an examination regarding the nature and etiology of any bilateral hearing loss. The examiner must opine whether any current hearing loss at least as likely as not was incurred in or is otherwise related to the Veteran's service, to include his decades spent as an aircraft maintenance repairman. The examiner must consider and discuss that on the Veteran's May 1975 separation report of medical history he reported that he had been experiencing hearing loss, as well as his testimony that his difficulty hearing people began during his service. 4. Schedule the Veteran for an examination regarding the nature and etiology of any tinnitus. The examiner must opine whether any current tinnitus at least as likely as not was incurred in or is otherwise related to the Veteran's service, to include his decades spent as an aircraft maintenance repairman. The examiner should consider and discuss the Veteran's testimony that he had "high pitched screaming" in his ears during service. 5. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.