Citation Nr: 21008128 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-17 777A DATE: February 11, 2021 ORDER Service connection for left foot peripheral neuropathy is denied. Service connection for right foot peripheral neuropathy is denied. REMANDED Entitlement to service connection for erectile dysfunction, claimed as loss of use of a creative organ, to include secondary to service-connected diabetes mellitus type II, is remanded. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current disability of left foot peripheral neuropathy, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. 2. At no time during the pendency of the claim does the Veteran have a current disability of right foot peripheral neuropathy, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for right foot neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to February 1973, to include service in the Republic of Vietnam from April 1972 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018, the case was remanded for additional development and it now returns for further appellate review. 1. Entitlement to service connection for left foot peripheral neuropathy, to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for right foot peripheral neuropathy, to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus type II. The Veteran is seeking service connection for bilateral foot peripheral neuropathy, which he contends is related to his acknowledged exposure to herbicide agents coincident with his service in the Republic of Vietnam or, in the alternative, is caused or aggravated by his service-connected diabetes mellitus type II. In this regard, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. As relevant, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6). In the instant case, the record reflects that the Veteran served in Vietnam from April 1972 to October 1972 and, thus, he is presumed to have been exposed to herbicide agents. For those veterans who have been exposed to herbicide agents, certain diseases, to include early onset peripheral neuropathy, are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § § 3.309(e). The diseases listed at 38 C.F.R. § § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § § 3.307(a)(6)(ii). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). However, pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Upon a review of the record, the Board finds that the Veteran does not have a current diagnosis of left or right foot peripheral neuropathy at any point pertinent to the pendency of his claim. In this regard, the Veteran’s post-service treatment records show no complaints, treatment, or diagnosis referable to left or right foot peripheral neuropathy. Notably, while such records contain one reference to “pruritis, possibly secondary to developing neuropathy,” a diagnosis of left or right foot peripheral neuropathy was not rendered. In this regard, VA treatment records dated October 2014, May 2016, October 2017, April 2018, and April 2019 reflect normal sensation examinations and normal/intact monofilament testing. Further, in February 2013, September 2014, and October 2017, after a review of the record and/or physical examinations pertaining to the Veteran’s diabetes mellitus type II, VA examiners found the Veteran did not have a diagnosis referable to left or right foot peripheral neuropathy. However, as the Veteran testified at his March 2018 Board hearing that his bilateral feet were cold all the time and tingling, the Board remanded the case in November 2018 order to afford him a VA examination specific to his claimed bilateral foot peripheral neuropathy. Thus, in November 2019, after reviewing the record, interviewing the Veteran, and conducting a physical examination with diagnostic testing, the examiner found the Veteran did not have a diagnosis of left or right foot peripheral neuropathy. Specifically, while he was found to have mild numbness in his bilateral lower extremities, an electromyography (EMG) was normal. Furthermore, the examiner opined that the Veteran’s symptoms were not consistent with a symmetric polyneuropathy, and his sensation to light touch via monofilament testing, strength, and reflexes were intact on physical examination and his EMG was normal for all nerves tested. Thus, he found that there was insufficient evidence to warrant a diagnosis of any acute or chronic disorder or residual thereof in regard to peripheral neuropathy. Furthermore, no functional impairment was found in regard to the Veteran’s reported symptoms. Consequently, the examiner opined that the Veteran did not have a current diagnosis of bilateral foot peripheral neuropathy and there was no evidence that he experienced symptoms of early onset peripheral neuropathy within one year of his exposure to herbicide agents in 1972. Rather, hs reported symptoms appeared decades after his last exposure to such agents. Moreover, the Veteran, as a lay person, is not competent to offer a diagnosis of a right or left foot peripheral neuropathy as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the administration and interpretation of diagnostic tests, to include an EMG or nerve conduction study. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of right or left foot peripheral neuropathy. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran’s statements as to the presence of a current right or left foot peripheral neuropathy are afforded no probative weight. Therefore, based on the foregoing, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of left or right foot peripheral neuropathy, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. Consequently, service connection for left and right foot peripheral neuropathy is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable and service connection for left and right foot peripheral neuropathy must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 3. Entitlement to service connection for erectile dysfunction, claimed as loss of use of a creative organ, to include as secondary to service-connected diabetes mellitus type II. The Veteran is seeking service connection for erectile dysfunction, to include as secondary to his service-connected diabetes mellitus type II. As noted in the November 2018 Remand, while February 2013, September 2014, and October 2017 VA examiners found that the Veteran did not have a diagnosis referable to the male reproductive system, he reported that he had experienced erectile dysfunction for the past three years at the March 2018 hearing. Thus, the Board remanded the case in order to afford him a VA examination so as to determine the nature and etiology of his claimed erectile dysfunction. Upon examination in November 2019, a VA examiner diagnosed erectile dysfunction, but opined such disorder was less likely than not due to his military service due or his service-connected diabetes mellitus type II. In support of such opinion, she noted that the Veteran reported the onset of relevant symptoms three to four years ago, which was a 30+ year gap between his separation from service in 1973 and the onset of symptoms. The examiner further opined that the Veteran’s erectile dysfunction was less likely than not proximately due to or the result of his diabetes mellitus type II. In support of such opinion, she stated such disorder was more likely related to his risk factors of low testosterone, age, hypertension, and cardiomyopathy with bicuspid aortic valve disorder, which are not caused by or related to his diabetes or herbicide exposure. The examiner further observed that the Veteran’s renal dysfunction was normal and he did not have a diagnosis of neuropathy. Thus, she concluded that the Veteran’s erectile dysfunction was less likely as not proximately due to or the result of his diabetes. In September 2020, another VA examiner reviewed the record and checked the boxes indicating that the Veteran’s erectile dysfunction was less likely than not proximately due to, the result of, or aggravated by his service-connected diabetes mellitus type II, but stated he was unable to provide an opinion without resorting to mere speculation because he did not have the Veteran’s recent records pertaining to his treatment for diabetes. However, the Board finds that the foregoing opinions are inadequate to determine whether service connection for the Veteran’s erectile dysfunction on a secondary basis is warranted. In this regard, the November 2019 VA examiner did not explain the lack of a relationship between the Veteran’s erectile dysfunction and diabetes (rather, she found that other risk factors were present and noted the absence of diabetic neuropathy or nephropathy without explaining the significance of such finding), and did not address whether such condition was aggravated by his diabetes mellitus. Further, the September 2020 VA examiner indicated that he could not offer an opinion without resorting to mere speculation. Thus, a remand is necessary in order to obtain an addendum opinion addressing the etiology of the Veteran’s erectile dysfunction. The matter is REMANDED for the following action: Return the record, to include a copy of this Remand, to the VA examiner who conducted the November 2019 male reproductive examination. If she is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. After a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed erectile dysfunction is caused or aggravated by his diabetes mellitus type II. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should discuss the relationship, or lack thereof, between the Veteran’s erectile dysfunction and diabetes rather than relying on the presence of other risk factors, and, if he or she finds it pertinent that the Veteran does not have diabetic neuropathy or nephropathy, he or she should explain the significance of such finding. The examiner is also requested to offer opinions as to both causation and aggravation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.