Citation Nr: 21010886 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-00 046 DATE: February 26, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for headaches is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for erectile dysfunction is granted. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to a rating in excess of 20 percent for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for Parkinson’s disease is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection balanitis with phimosis is remanded. Entitlement to a rating in excess of 30 percent for anxiety disorder is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. FINDINGS OF FACT 1. In an August 2005 decision, service connection for headaches was denied. 2. The evidence associated with the claims file since the August 2005 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for headaches. 3. In a final September 2008 decision, service connection for erectile dysfunction was denied. 4. The evidence associated with the claims file since the September 2008 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for erectile dysfunction. 5. The Veteran’s diabetes mellitus does not require regulation of activities. 6. The Veteran has demonstrated, at worst, Level II hearing acuity in the left ear and Level VII in the left ear. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for headaches are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. The criteria for reopening a previously denied claim of service connection for erectile dysfunction are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 3. The criteria for a rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2019). 4. The criteria for a rating in excess of 20 percent for a bilateral hearing loss disability are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1966 to November 1968, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014, September 2015, and August 2017 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2020, the Veteran withdrew his request for a Board hearing. Claim to Reopen – Headaches In a final August 2005 decision, the RO denied service connection for headaches because the evidence did not show that the Veteran had a headache disability. The Board finds that new and material evidence has been received to reopen the claim of service connection for headaches. Private treatment records note that the Veteran had complaints and a history of headaches. The Board finds that evidence new and material. Therefore, the claim is reopened. Claim to Reopen – Erectile Dysfunction In a final September 2008 decision, the RO denied service connection for erectile dysfunction because the evidence did not show that the Veteran had erectile dysfunction. The Board finds that new and material evidence has been received to reopen the claim of service connection for erectile dysfunction. A September 2013 VA examination report noted that the Veteran had mild sexual dysfunction. The Board finds that evidence new and material. Therefore, the claim is reopened. Increased Rating – Diabetes Mellitus In June 2015, the Veteran filed a claim for an increased rating for diabetes mellitus. In a September 2015 rating decision, the RO continued a 20 percent rating for diabetes mellitus. The Veteran appealed, seeking a rating in excess of 20 percent. The Veteran’s diabetes mellitus has been evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a rating of 20 percent is warranted where diabetes requires one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A rating of 40 percent is warranted where diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities (defined within the diagnostic code as avoidance of strenuous occupational and recreational activities). 38 C.F.R. § 4.119, Diagnostic Code 7913. A VA examination report dated in July 2015, along with VA and private treatment records, indicate that the Veteran’s diabetes mellitus requires treatment with oral hypoglycemic agents and restricted diet, consistent with a 20 percent rating. The evidence does not indicate that his diabetes mellitus requires the regulation of activities. Therefore, the Board finds that a rating in excess of 20 percent for diabetes is not warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Bilateral Hearing Loss In June 2015, the Veteran filed a claim for an increased rating for bilateral hearing loss. In a September 2015 rating decision, the RO continued a 20 percent rating for bilateral hearing loss. The Veteran appealed, seeking a rating in excess of 20 percent. During a July 2015 VA audiology evaluation, audiometric testing results were as follows: 1000 2000 3000 4000 Avg. Hz. Right 45 65 90 85 71.25 Left 60 85 95 95 82.5 Speech recognition ability was measured at 94 percent in the right ear and 68 percent in the left ear. Using Table VI, the results of the July 2015 VA audiology evaluation equate to Level II in the right ear, and Level VII in the left ear. Using Table VII, those results warrant a 10 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. As the Veteran’s left ear hearing loss demonstrated 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), Table VIa may be applied. Using Table VIa, the results of the July 2015 audiology equate to Level VII in the left ear. The right ear has not demonstrated an exceptional pattern of hearing impairment and equates to Level II under Table VI. Using Table VII, those results warrant a 10 percent rating. The Board has carefully reviewed the remaining record during the appeal period but finds no other probative evidence of record showing that the Veteran’s bilateral hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluation discussed above. In addition, there is no basis for the assignment of staged ratings, as the criteria for a higher rating have not been met during the relevant time period. Hart, 21 Vet. App. at 505. In addition, the Board has considered the evidence of record showing that the Veteran has difficulty understanding speech and distinguishing sounds with background noise present. Although the Board finds his statements to be credible, it finds that those factors do not provide sufficient evidence on which to award a higher rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to no greater than a 10 percent disability rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 20 percent for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND The Board finds that additional development is necessary before the remaining claims on appeal are decided.   Service Connection – Parkinson’s Disease, Headaches, and Erectile Dysfunction The Board notes that the Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Parkinson’s disease is listed among the diseases presumed to be associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). In addition, 38 U.S.C. § 1116(a)(2) was recently amended to include Parkinsonism on that list. See The National Defense Authorization Act (NDAA) for Fiscal Year 2021, Pub. L. No. 116-283 § 9109. In this case, however, it is unclear whether the Veteran has Parkinson’s disease. In an April 2014 letter, a private neurologist, Dr. P.P., indicated that he had been treating the Veteran for Parkinson’s disease and private treatment records noted Parkinson’s disease on his problem list beginning in August 2013. In March 2014, a VA examiner, Dr. K.P., an internist, indicated that the Veteran did not have a diagnosis of Parkinson’s disease, noting that private neurology records were inconsistent and did not support a diagnosis. In April 2014, Dr. P.P. responded by noting that individuals with Parkinson’s disease may or may not exhibit all the cardinal symptoms of Parkinson’s disease and that they may have only a few symptoms. In December 2014, the VA examiner noted that Dr. P.P.’s own medical documentation failed to show bradykinesia, resting tremor, rigidity, and postural and gait impairment and that the Veteran’s symptoms did not meet the criteria established by medical literature for Parkinson’s disease. Based on the foregoing, the Board finds that a remand is necessary for an additional VA examination, by a neurologist, to determine the nature and etiology of the Veteran’s claimed disability. Regarding the Veteran’s claims for service connection for headaches and erectile dysfunction, the Board notes that there is some evidence suggesting that those symptoms are related to his claimed Parkinson’s disease. Therefore, a determination on those claims should be deferred pending a final disposition on the claim for service connection for Parkinson’s disease. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Service Connection – Balanitis/Phimosis The Veteran maintains that his balanitis with phimosis is secondary to his service-connected diabetes mellitus. In March 2014, a VA examiner opined that the balanitis/phimosis was less likely than not caused by diabetes; however, the examiner did not address whether diabetes mellitus aggravated balanitis/phimosis. Therefore, a remand is necessary for a supplemental VA medical opinion. Increased Rating – Anxiety Disorder A VA examination to assess the Veteran’s service-connected anxiety disorder was conducted in July 2015. Since then, an April 2016 VA treatment record indicated that he complained of feeling nervous about anything for three to four months, noting that little things made him nervous and irritable. He stated that he felt he had less control of his irritability. Because that record suggests that his service-connected disability may have worsened since he was last examined, the Board finds that a remand is necessary for an additional VA examination. Increased Rating – Lower Extremity Peripheral Neuropathy A VA examination to assess the Veteran’s service-connected lower extremity peripheral neuropathy associated with diabetes mellitus was conducted in March 2016. Since then, private treatment records have noted that he has had increased problems with gait and balance and that he requires a cane and/or walker to ambulate. Because those records suggest that his service-connected disability may have worsened since he was last examined, the Board finds that a remand is necessary for an additional VA examination. TDIU and SMC Claims The Veteran has raised the issues of entitlement to TDIU and SMC in connection with his claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the claims for TDIU and SMC are inextricably intertwined with the claims remanded herein. Action on those issues are therefore deferred.   The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by a neurologist with appropriate expertise to determine the nature and etiology of his claimed Parkinson’s disease. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran has Parkinson’s disease or Parkinsonism. If the Veteran does not meet the criteria for a diagnosis of Parkinson’s disease or Parkinsonism, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present neurological disability was incurred in or is etiologically related to service, to include exposure to herbicide agents. In rendering the above opinions, the examiner should address the April 2014 private medical opinion by Dr. P.P., and the VA examiner’s December 2014 opinion. A rationale for all opinions expressed must be provided. 3. Then, return the case to the VA examiner who conducted the March 2014 male reproductive system examination for an addendum opinion. After a review of the evidence of record, to include consideration of the newly received records, as well as the Veteran’s lay statements, the VA examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that balanitis/phimosis was/is aggravated by the Veteran’s service-connected diabetes mellitus. A rationale for all opinions expressed must be provided. If the March 2014 VA examiner is unavailable, the claims file should be forwarded to an examiner with appropriate expertise to provide the requested opinion. A VA examination should only be performed if determined necessary by the examiner providing the requested opinion. 4. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected anxiety disorder. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include a full description of the functional impact of the service-connected disability on the Veteran’s ordinary activity. 5. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right and left lower extremity peripheral neuropathy associated with diabetes mellitus. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include a full description of the functional impact of the service-connected disability on the Veteran’s ordinary activity. 6. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 7. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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.