Citation Nr: 21010875 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-35 720 hoDATE: February 25, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as a due to exposure to herbicides, is denied. REMANDED Entitlement to service connection for loss of use of creative organ is remanded. Entitlement to peripheral neuropathy of the left upper extremity, to include as a due to exposure to herbicides, is remanded. Entitlement to peripheral neuropathy of the right upper extremity, to include as a due to exposure to herbicides, is remanded. Entitlement to peripheral neuropathy of the bilateral lower extremities, to include as a due to exposure to herbicides, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had diabetes mellitus at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to June 1969, including service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2014, February 2015, and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes the Veteran initially requested a videoconference hearing before the Board, which was scheduled for June 21, 2018. The Veteran and his representative were notified of the date, time, and location of the hearing in correspondence mailed on May 22, 2018, and on June 8, 2018. They were also notified about how they could reschedule the hearing in those letters. According to the Veterans Appeals Control and Locator System (VACOLS), the hearing was canceled at the Veteran’s request. In the period prior to the hearing, neither the Veteran nor his representative informed VA the hearing needed to be rescheduled and did not provide good cause for not being able to attend the scheduled hearing. Further, in the fifteen days after the scheduled hearing, neither the Veteran, nor his representative, provided “good cause for such failure to appear and the impossibility of timely requesting postponement,” as required by VA regulation. See 38 C.F.R. § 20.704 (d). As such, the Board deems that the Veteran’s request for a hearing is withdrawn. 38 C.F.R. § 704 (d). The Board recognizes that a letter was dated and received by VA on January 4, 2021, from the Veteran’s representative requesting that the hearing be rescheduled. This request was submitted more than two years and six months after the canceled hearing date. There is no indication that a copy of this communication was received by VA within 15 days after the scheduled hearing date. There is a well-established presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that the Secretary properly discharged his official duties by properly handling claims submitted by the Veteran, including properly date-stamping and filing correspondence received. It must also be presumed that the United States Postal Service properly discharged its official duties by properly delivering correspondence sent by the Veteran to the addresses provided. No argument has been presented indicating that the request should be considered timely. As such, the Board finds this request to reschedule untimely and will proceed to the adjudication of the issues on appeal based on the evidence of record. The Board also notes that the Board sent a letter to the Veteran’s representative on January 8, 2021. The letter states that the representative, a Veteran Service Organization, had 120 days to submit an Information Hearing Presentation (IHP) prior to the Board’s adjudication of the appeals. Because the representative was previously notified of the opportunity to provide an IHP and failed to do so in a timely manner, the case was assigned to the Board for adjudication. 1. Entitlement to service connection for diabetes mellitus, to include as a due to exposure to herbicides The Veteran seeks service connection for diabetes mellitus, to include as due to exposure to herbicides. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of diabetes mellitus and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records are silent for any treatment for or diagnosis of diabetes. A VA treatment note submitted in December 2017 shows the Veteran was assessed to have diabetes mellitus. However, VA treatment records dated prior to May 2017 show the Veteran did not have a diagnosis of diabetes, and treatment records dated after May 2017 show the Veteran was listed as being “pre-diabetic.” The February 2018 VA examiner evaluated the Veteran and determined that he does not have a diagnosis of diabetes mellitus. The examiner explained that at times, pre-diabetes and diabetes are lumped together, thus creating confusion regarding the actual diagnosis. He stated that the primary and definitive information is that the Veteran has not had blood levels that establish he has diabetes, and noted that his most recent medical records list a diagnosis of pre-diabetes. While the Veteran believes he has a current diagnosis of diabetes, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, he has not provided medical evidence that verifies he has a diagnosis of diabetes, and not pre-diabetes. Consequently, the Board gives more probative weight to the competent medical evidence, which includes the February 2018 VA medical opinion. Accordingly, the claim of service connection for diabetes must be denied. REASONS FOR REMAND 1. Entitlement to service connection for loss of use of creative organ is remanded. The Veteran seeks service connection for loss of use of creative organ. Initially, the Veteran’s loss of use claim was assessed as being secondary to diabetes and was denied based on a negative VA medical opinion because the Veteran does not have a diagnosis of diabetes. The record shows the Veteran has erectile dysfunction. He is also service-connected for prostate cancer. The January 2018 VA examiner who assessed the Veteran’s prostate cancer stated that the Veteran has erectile dysfunction possibly due to peripheral neuropathy. The February 2019 VA examiner noted the Veteran’s erectile dysfunction may have a multifactorial etiology associated with his prostate cancer, peripheral neuropathy, and benign prostatic hyperplasia (BPH). Medical opinions with adequate rationale have not been obtained that assess whether the Veteran’s loss of use of creative organ is directly related to herbicide exposure during service, and/or secondary to or aggravated by service-connected prostate cancer. An opinion must also be obtained that addresses whether the loss of use of creative organ is related to peripheral neuropathy. Therefore, remand is necessary. 2. Entitlement to peripheral neuropathy of the left upper extremity, to include as a due to exposure to herbicides, is remanded. 3. Entitlement to peripheral neuropathy of the right upper extremity, to include as a due to exposure to herbicides, is remanded. 4. Entitlement to peripheral neuropathy of the bilateral lower extremities, to include as a due to exposure to herbicides, is remanded. The Veteran asserts that he has peripheral neuropathy of the bilateral upper and lower extremities that is related to exposure to herbicide agents during his military service. As previously noted, the record reflects that he served in Vietnam. The Veteran is presumed to have been exposed to herbicides during service. VA medical records show the Veteran was treated for and diagnosed with peripheral neuropathy. The Veteran submitted a statement in March 2017, and indicated he was diagnosed with peripheral neuropathy in 2008. Therefore, the RO denied presumptive service connection for early-onset peripheral neuropathy because it did not 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 service. See 38 C.F.R. §§ 3.307 (a), 3.309 (e). Although the Veteran is not entitled to presumptive service connection, he is not barred from establishing entitlement to service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). On remand, VA medical opinions must be obtained to determine the etiology of the Veteran’s peripheral neuropathy of the upper and lower extremities. 5. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues discussed above could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Obtain and associate with the record any outstanding VA medical records. 2. Schedule the Veteran for a VA medical examination and obtain a VA medical opinion regarding the nature and etiology of any genitourinary condition resulting in loss of use of creative organ. The entire claims file must be made available to the examiner for review, and the examiner should note in the examination report that a review was conducted. The examiner should respond to the following: (a.) The examiner should confirm the diagnosis of any genitourinary condition. Attention is drawn to prior VA examination reports showing the Veteran has erectile dysfunction. (b.) Provide an opinion as to whether any genitourinary condition is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service, to include his presumed herbicide exposure. (c.) Provide an opinion as to whether any genitourinary condition is at least as likely as not (50 percent or greater probability) the result of or aggravated by service-connected prostate cancer. (d.) Provide an opinion as to whether any genitourinary condition is at least as likely as not (50 percent or greater probability) the result of or aggravated by peripheral neuropathy. 3. Scheduled the Veteran for a VA medical examination and obtain a VA medical opinion regarding the nature and etiology of the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities. The entire claims file must be made available to the examiner for review, and the examiner should note in the examination report that a review was conducted. The examiner should respond to the following: (a.) The examiner should confirm the diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. (b.) Provide an opinion as to whether any current peripheral neuropathy disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service, to include his presumed herbicide exposure. 4. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any genitourinary or peripheral neuropathy disorders. The examiner is also advised that the supporting rationale cannot be based solely on the fact that VA has not included the Veteran’s diagnosed conditions on the list of presumptive conditions. 5. Readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.