Citation Nr: 21075943 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-14 610 DATE: December 21, 2021 ORDER Entitlement to service connection for right lower extremity peripheral neuropathy secondary to type 2 diabetes mellitus is denied. Entitlement to service connection for right upper extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is denied. Entitlement to service connection for left lower extremity peripheral neuropathy secondary to type 2 diabetes mellitus is denied. Entitlement to service connection for left upper extremity peripheral neuropathy secondary to type 2 diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction (ED) secondary to type 2 diabetes mellitus is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has or had peripheral neuropathy of his upper or lower extremities at any time since the filing of these claims or proximate or contemporaneous to that, including owing to his already determined to be service-connected type 2 diabetes mellitus. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral (so left and right) upper and lower extremity peripheral neuropathy including secondary to the service-connected type 2 diabetes mellitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to November 1966. In January 2019, the Veteran testified in support of these claims during a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In April 2021, the Board, in part, granted the Veteran's claim for service connection for type 2 diabetes mellitus but, instead, remanded back to the RO these claims for the additionally alleged bilateral upper and lower extremity peripheral neuropathy, hypertension, and ED so they could be further developed including for needed medical opinions concerning these other claimed conditions. As well, the Board remanded as still additional claim for service connection for posttraumatic stress disorder (PTSD). In a September 2021 rating decision since issued on remand, however, the claim for service connection for PTSD was granted. If the Veteran disagrees with the initial 30 percent rating assigned for this now service-connected disability and/or the effective date of October 17, 2014, he must separately appeal these "downstream" issues. The same is true of the initial 20 percent rating and that same effective date assigned for his type 2 diabetes mellitus in the April 2021 decision implementing the Board's grant of service connection for this disease. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection 1., 2., 3. & 4. Entitlement to service connection for bilateral (left and right) upper and lower extremity peripheral neuropathy as secondary to the type 2 diabetes mellitus The Veteran contends that he has bilateral upper and lower extremity peripheral neuropathy as a complication of, so secondary to, his service-connected type 2 diabetes mellitus. So, in essence, his claim is for "diabetic" peripheral neuropathy as opposed to the "early-onset" peripheral neuropathy that is presumptively associated with exposure to the dioxin in Agent Orange and that formed the basis of granting his claim for service connection for his type 2 diabetes mellitus. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). In any event, there is not the required indication of "early-onset" peripheral neuropathy within a year of his last exposure to Agent Orange to, in turn, warrant presuming it was incurred during his service owing to that exposure. Thus, the focus of this analysis, instead, will address the alternative notion that he has peripheral neuropathy secondary to his type 2 diabetes mellitus, i.e., as a complication of it ("diabetic" peripheral neuropathy). Service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Here though, unfortunately, the Veteran has not established that he has peripheral neuropathy of his upper and lower extremities or that he has at any time since the filing of these claims or proximate to the filing of them. Only if determined he does would the Board then need to also decide whether it is secondary to his service-connected type 2 diabetes mellitus. Simply put, there is no current diagnosis of peripheral neuropathy of the extremities in the evidence in the file upon which to predicate a claim for service connection. According to VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible (i.e., probative) evidence of the present existence of the disability being claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer, 3 Vet. App. at 225 ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability, and that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Moreover, the Board remanded these claims in April 2021 for further development that included having the Veteran undergo a VA compensation examination for a medical opinion concerning whether he has this claimed bilateral upper and lower extremity peripheral neuropathy and, if he does, whether it is caused or aggravated by his service-connected type 2 diabetes mellitus. But, during the September 2021 VA peripheral nerves condition examination that he subsequently had pursuant to this remand directive, peripheral neuropathy of the extremities was not diagnosed, either as concerning the upper or lower extremities. That notwithstanding, a precedent case clarified that a diagnosis is not always required to meet the current disability requirement and that as an example, pain, alone, may constitute a ratable disability if it causes impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Here, though, there is no such indication of consequent functional impairment of earning capacity owing to the Veteran's bilateral upper and lower extremity pain. The Federal Circuit Court's earlier decision in Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001), which vacated the lower Court's (CAVC's) decision that had been cited for years for the erroneous "pain alone is not disability" concept, is still valid in that it said the Board need not address the interesting, indeed perplexing, question of whether pain alone can constitute disability, but the Board still needs to see disability due to disease or injury in service for the Veteran, in turn, to establish entitlement to service connection. While the Veteran believes he has peripheral "neuropathy" (not just pain) of his upper and lower extremities, he is not competent to ascribe his pain to a particular diagnosis or even to establish consequent functional impairment in his earning capacity owing to his pain to, in turn, warrant considering his pain as a ratable disability even absent any underlying diagnoses. This issue is medically complex, not merely simple, since it requires specialized medical education and training, including to interpretate the results of diagnostic testing and evaluation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). See also 38 C.F.R. § 3.159(a)(1) and (2). Consequently, the Board gives more probative weight to the competent medical evidence. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether medical versus lay evidence is needed to support a claim is fact specific (i.e., a case-by-case judgment), based on the specific type of condition being claimed, including in terms of whether it is simple or instead complex). For these reasons and bases, these claims are denied. The evidence for versus against these claims is not in relative balance (equipoise), so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension as secondary to the type 2 diabetes mellitus is remanded. 2. Entitlement to service connection for ED as secondary to the type 2 diabetes mellitus also is remanded. The Veteran also contends that his hypertension and ED are secondary to his service-connected type 2 diabetes mellitus. Pursuant to the Board's prior April 2021 remand directive, the Veteran was afforded VA examinations in September 2021. The VA examiner concluded the Veteran's ED and hypertension were less likely than not proximately due to or the result of his service-connected type 2 diabetes mellitus. However, the examiner did not additionally address the aggravation aspect of the posited secondary service connection theory of entitlement, and this, too, must be considered. See, e.g., El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a medical opinion focusing solely on causation is inadequate to address whether a service-connected disability alternatively aggravates the condition being additionally claimed). Thus, supplemental medical comment is needed since VA must ensure the adequacy of a VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the Board has conceded that the Veteran served in Vietnam during the Vietnam War Era, so it is presumed that he was exposed to herbicides (including especially the dioxin in Agent Orange) while there. And, while hypertension is not currently on the list of diseases in 38 C.F.R. § 3.309(e) that are presumed to be due to exposure to herbicides in Vietnam, during the course of this appeal The National Academies of Sciences, Engineering, and Medicine (NASEM), in the Veterans and Agent Orange Update: Update 11 (2018) (VAO Update), acknowledged "sufficient evidence of an association" between exposure to herbicide agents and hypertension (upgraded from the previous finding of a "limited or suggestive" relationship). The Board consequently also is obtaining an advisory medical opinion considering this concession. Accordingly, these remaining claims are again REMANDED for the following still additional development and consideration: 1. Obtain supplemental comment (addendum opinion) concerning the etiology of the Veteran's hypertension and ED. All relevant evidence, including a complete copy of this decision and remand, must be reviewed by the examiner. The examiner is asked to specifically respond to the following: (a) Is it as likely as not (50 percent or greater probability) the Veteran's hypertension onset during his service from July 1963 to November 1966, or within a year of his discharge so by November 1967, or is otherwise etiologically related or attributable to his service, including especially to his presumed exposure to herbicides in Vietnam? *The rationale for the opinion must discuss the NASEM's VAO Update findings indicating there now is "sufficient evidence of an association" between exposure to herbicide agents and hypertension. See Veterans and Agent Orange: Update 11 (2018). (b) Is it as likely as not (a 50 percent probability or greater) that the Veteran's hypertension alternatively was caused OR is aggravated by his service-connected type 2 diabetes mellitus. (c) Is it as likely as not (a 50 percent or better probability) that his ED was caused OR is aggravated by his service-connected type 2 diabetes mellitus. *The opinions must address both causation and aggravation. The prior, September 2021, opinion only addressed causation (not also aggravation). *The examiner must also remain mindful that a rather recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.