Citation Nr: 21015541 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-01 835 DATE: March 17, 2021 ORDER New and material evidence not having been submitted, a claim for entitlement to service connection for bilateral hearing loss is not reopened, and the claim remains denied. Service connection for type II diabetes mellitus is denied. Service connection for bilateral upper extremity neuropathy of the 4th and 5th fingers, to include as due to coronary artery disease and/or type II diabetes mellitus, is denied. Service connection for bilateral lower extremity peripheral neuropathy, to include as due to type II diabetes mellitus, is denied. Service connection for a peripheral vascular disease of the lower extremities is granted. Service connection for erectile dysfunction is granted. REMANDED Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is remanded. FINDINGS OF FACT 1. The claim for service connection for bilateral hearing loss was previously denied in a November 2011 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received by VA within one year from the date notice of the decision was mailed to the Veteran; the additional evidence received since the final November 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim. 2. Neither type II diabetes nor any peripheral neuropathy of an extremity began during service or within a year of service, or is related to service, or a service-connected disability, in any other way. 3. The Veteran’s current peripheral vascular disease of the lower extremities and erectile dysfunction are, at least in part, the result of his in-service hyperlipidemia. CONCLUSIONS OF LAW 1. The additional evidence presented since the November 2011 rating decision is not new and material, and the claim for service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral upper extremity neuropathy of the 4th and 5th fingers, to include as due to coronary artery disease and/or type II diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for bilateral lower extremity peripheral neuropathy, to include as due to type II diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for peripheral vascular disease of the lower extremities are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.9. 6. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to September 1991. This appeal is before the Board of Veterans’ Appeals (Board) from March 2015 and October 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office. It was remanded by the Board in October 2018 and July 2019. New and Material Evidence Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. New and material evidence not having been submitted, a claim for entitlement to service connection for bilateral hearing loss is not reopened, and the claim remains denied. The agency of original jurisdiction (AOJ) denied service connection for bilateral hearing loss in a November 2011 rating decision. This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the AOJ mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of that decision. Therefore, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103; see also 38 C.F.R. § 3.156(b), (c). The basis of the November 2011 denial was that there was no nexus between the Veteran’s current hearing loss and in-service noise exposure, or service, generally. Specifically, the rating decision stated that “[m]edical expertise is needed to establish a link between your current hearing loss and in-service military noise exposure,” but that, “to this date, we have received no medical records showing that your hearing loss is due to service.” Therefore, “[a]lthough you currently have a hearing loss for VA purposes, there is no medical link between your hearing loss and service. In the absence of such a link, service connection may not be granted.” At the time of the decision, the evidence included a November 2011 audiology note and VA examination report, which contain the Veteran’s report that he had a “history of loud noise exposure in the military service” as an electronic technician, a diagnosis of a hearing loss disorder, and a negative etiology opinion from the VA examiner. Evidence received since the November 2011 decision includes the Veteran’s September 2014 claim, which reiterates his assertions that he currently had hearing loss, and that he was exposed to loud noise in service as an electronic technician. It also includes VA treatment records including a May 2018 record noting that the Veteran reported left ear hearing loss since about 2 years prior, which was slowly improving, and that the Veteran would like a referral for hearing aids. While such records reiterate the Veteran’s assertion of in-service noise exposure and evidence of a current hearing loss disability, neither they nor any other new evidence address the question of nexus between a current hearing loss disability and in-service noise exposure—the unestablished fact that was the basis of the November 2011 denial, and which is necessary to substantiate the Veteran’s claim. Therefore, such new evidence does not raise a reasonable possibility of substantiating the Veteran’s previously denied service connection claim for hearing loss, and cannot be considered material. Under these circumstances, the Board finds that new and material evidence has not been submitted to reopen the Veteran’s claim of service connection for bilateral hearing loss. Accordingly, the claim is not reopened and remains denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness is for application in a service connection claim where there is “evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service.” Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service; the claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection can be warranted where such a defect is subject to a superimposed disease or injury during military service that results in increased disability. VAOPGCPREC 82- 90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). In addition, for certain chronic diseases, such as type II diabetes, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 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) caused by or (b) aggravated by a service-connected disability. Id. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 2. Service connection for type II diabetes mellitus is denied. Service connection for bilateral upper extremity neuropathy of the 4th and 5th fingers, to include as due to coronary artery disease and/or type II diabetes mellitus, is denied. 4. Service connection for bilateral lower extremity peripheral neuropathy, to include as due to type II diabetes mellitus, is denied. The Veteran is current service-connected for coronary artery disease (CAD), status post coronary artery bypass graft (CABG) and myocardial infarction, with scar, rated 100 percent, effective October 13, 2014. As reflected in his September 2014 claim, the Veteran asserts that his diabetes is directly related to service, and that he was diagnosed with diabetes in 1992, approximately 9 months after his separation from service, and was treated for episodes of dizziness while in service. He further asserted that his neuropathy is either directly related to service or secondary to his diabetes. On March 2015 VA examination, the Veteran reported being diabetic since 1992, that he was diagnosed with diabetes within a year of getting out of service, and that he remembered urinating a lot and “spilling sugar in the urine.” In a June 2015 brief, the Veteran’s attorney reiterated that, regarding his diabetes, the “Veteran was diagnosed 9 months after separation and has been insulin dependent ever since.” The brief also asserted that neuropathy was a “common result from the [CABG]” and that a VA medical examiner should consider neuropathy as secondary to CAD. However, the evidence in this case does not reflect that diabetes began within a year of service or is otherwise related to service, or that neuropathy is related to service or to the Veteran’s service-connected CAD in any way. Service treatment records reflect that, in April 1989, the Veteran complained of dizziness, shortness of breath, and numbness of the left arm. In November 1989, he reported a several-week history of sharp pains intermittently to various body parts, including hands, feet, forehead, and chest, stating that his arms felt numb and hands weak; the Veteran attributed the symptoms possibly to starting Tagamet, as the symptoms coincided with his beginning the medication, and the assessment was possible anxiety. In December 1989, he complained of episodic shock-like sensation behind left eye, sometimes in left upper extremity, and sometimes in right lower extremity, sharp pains in head, and brief loss of balance; he was assessed with rule out neurologic diagnosis, and possible anxiety. In March 1991, he was treated for complaints of dizziness for 2 days, along with nausea and vomiting, which was felt to be due to virus. Pursuant to the Board’s July 2019 remand instructions, the AOJ requested all of the Veteran’s VA treatment records beginning 1992, and specifically from the Grand Island Nebraska VA Medical Center. However, the earliest VA treatment record is dated December 31, 1996; no earlier VA treatment records appear to exist. Furthermore, there is no indication in the medical records beginning in 1996 of any prior history of diabetes. On the contrary, at the time of treatment on December 31, 1996, the Veteran’s past medical history was noted to include high cholesterol, a smoking history, and a history of jaundice at 13; it did not include diabetes. It was also noted at the time of that treatment that the Veteran had no current medications, which contradicts the assertion that the “Veteran was diagnosed 9 months after separation and ha[d] been insulin dependent ever since.” It was further noted on December 31, 1996, treatment that the Veteran would be seen again the next week, and that a series of lab tests, including urinalysis, would be performed. Subsequent 1997-2000 VA records reflect type II diabetes, noted to have first been recorded on January 7, 1997, approximately one week after the initial December 31, 1996, treatment. On August 2000 treatment, it was noted in past medical histories that the Veteran had had type II diabetes “for 2 [years],” and that diabetes mellitus had been diagnosed “2 [years] ago.” The existing treatment records thus provide strong evidence that diabetes was not diagnosed or treated within a year of service, but rather was first diagnosed and treated in 1997. They therefore undermine the credibility of any lay evidence of diabetes first being treated in 1992. Regarding his claimed neuropathy, the record does not reflect, and the Veteran has not directly asserted, that his upper or lower extremity peripheral neuropathy began during service; rather as reflected on VA examinations discussed below, the Veteran has reported that his neuropathy began decades later, in 2014. Private and VA treatment records beginning in 2014 note past medical history and diagnoses of peripheral neuropathy, generally noted to be secondary to, associated with, or a complication of, the Veteran’s diabetes. Also, the medical evidence suggests that the Veteran’s peripheral neuropathy is not related to any complaints or conditions for which he was treated in service, or to service generally; or to his CAD or CABG surgery, as asserted by the Veteran. On VA examination in December 2014, in giving a history of his peripheral nerve condition, the Veteran reported that, after surgeries in 2014 for his heart condition, he noticed numbness in the 4th and 5th fingers bilaterally, and that it was now hard to pick up things, open caps of jars or grip things. A diagnosis of neuropathy, 4th and 5th fingers bilaterally, was noted. In a March 2015 addendum opinion, the examiner, noting VA treatment records of occasional shock like sensation in the left upper and right lower extremities in December 1989, pain in hands, feet, chest in November 1989, and left arm numbness in April 1989, stated that the Veteran’s upper and lower extremity neuropathy was unlikely to be related to service or any incident therein. The examiner explained that the Veteran reported he did not have any problem with his upper extremities after active service, prior to surgery in May of 2014, and that he developed bilateral 4th and 5th finger numbness after May of 2014 (he also, at the time of examination, denied problems with nerves of his lower extremities). He did not have residuals of the in-service problems noted, including “shock” sensation in left arm, pain in hands, and left arm numbness, and there was no association of any current problem to those notations in service. The March 2015 examiner further opined that the Veteran’s neuropathy was not related to his May 2014 CABG surgery, as there was no clinical evidence to support this. According to the examiner, while surgical procedures such as vein harvesting can result in a neurological complication, the vein harvested with the CABG was from the lower leg; the Veteran reported that his neuropathy of the 4th and 5th fingers bilaterally were the result of the CABG surgery. An upper extremity neuropathy would be unlikely to occur with such a surgical procedure of the lower extremity. Additionally, those neurological complications are also usually unilateral; the Veteran’s reported neuropathy was bilateral. In an August 2015 addendum, the examiner further opined that the Veteran’s neuropathy was less likely than not proximately due to or aggravated by his CAD directly, as CAD does not affect nor contribute to peripheral neuropathy conditions, per the medical literature. The Board finds the VA medical opinions persuasive in this case, as they were based on consideration of the record, examination of the Veteran, and consideration of his reported history, and were supported by plausible rationales. Also, there is no competent evidence, such as a medical opinion, that contradicts these VA opinions. In light of the above, a preponderance of the evidence is against a finding that type II diabetes or any peripheral neuropathy began during service or within a year of service, or is related to service, or a service-connected disability, in any other way. Accordingly, service connection for type II diabetes mellitus and bilateral upper and lower extremity peripheral neuropathy must be denied. As a final matter, the Board notes that, in a June 2015 brief, the Veteran’s attorney argued that VA had a heightened duty to consider the benefit of the doubt in this case, as it had been unable to locate the Veteran’s service treatment records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, while VA was initially unable to locate such records, the Veteran appears to have submitted his complete service treatment records to VA for consideration by September 2011. There is no indication that such records are incomplete, or any explanation as to what relevant records might be missing, or how any missing records might support any of the Veteran’s claims for his disabilities of diabetes and neuropathy, which he has himself asserted were first diagnosed and treated after service. The Board therefore finds that the service treatment records in this case are not missing or incomplete, and that all appropriate consideration has been given under 38 U.S.C. § 5107. 5. Service connection for a peripheral vascular disease of the lower extremities is granted. 6. Service connection for erectile dysfunction is granted. As reflected in his September 2014 claim, the Veteran asserts that his bilateral lower extremity vascular disability is either directly related to service, or secondary his either his CAD or his diabetes; he stated that his reduced blood flow to his legs resulted in vascular surgery in August 2014. In a June 2015 brief, the Veteran’s attorney also suggested that the Veteran’s vascular disability is due to his high cholesterol level noted in service. Service treatment records reflect that, on September 1985 entrance examination, no high cholesterol or other cholesterol-related problems were noted. On September 1989 reenlistment examination, the Veteran’s cholesterol was measured at 286, and his triglycerides were 588 mg/dL; he was noted to have had increased lipids and decreased high-density lipoprotein, and it was recommended that the Veteran quit smoking and have a high-fiber diet. On September 1991 examination for separation from service, the Veteran’s cholesterol was measured at 413, and his triglycerides were 2315 mg/dL; hyperlipidemia was noted, and it was recommended that the Veteran follow up with his physician. Given the above, the presumption of soundness applies to the Veteran’s cholesterol levels and hyperlipidemia in service, and he is presumed to have been in sound condition with respect to his cholesterol at the time of entry into service. Peripheral vascular disease was noted beginning in 2014; in July 2014, the Veteran was admitted to the hospital due to peripheral vascular disease requiring extensive workup. VA medical opinions dated in December 2014, March 2015, and October 2019 attribute the Veteran’s peripheral vascular disease and/or erectile dysfunction to his extensive smoking history, diabetes, and very high cholesterol levels, among other things. As explained by the October 2019 VA examiner, the Veteran’s cholesterol problem was due to the congenital condition of familial, or hereditary, hyperlipidemia, described as “an inherent disease that began many years prior to any military service.” The examiner stressed that the risk factor of familial hyperlipidemia had been noted throughout the record, and such hyperlipemia was clearly noted in the records as being “heterozygous familial.” The medical record confirms the October 2019 VA examiner’s assessment that the Veteran’s cholesterol problems were the result of familial or “mixed” hyperlipidemia. This includes VA and private treatment records noting a history of familial or mixed hyperlipidemia dated in 1997, 2000, 2016, and 2018. However, the Board nonetheless finds that service connection is warranted for peripheral vascular disease of the lower extremities and erectile dysfunction, based on the medical nexus—established in VA opinions—of each to the Veteran’s in-service high cholesterol levels. The Board finds this regardless of the fact that his familial hyperlipidemia—the cause of his high cholesterol and resulting health problems—is a congenital disease or defect. While the October 2019 VA examiner referred to the Veteran’s hyperlipidemia as a “disease,” it is not entirely clear whether, for VA compensation purposes, such would be considered a congenital disease or a congenital defect under 38 C.F.R. §§ 3.303(c) and 4.9. However, the Board would find service connection warranted in this case regardless of which it was. If considered a congenital disease, pursuant to the relevant VA General Counsel Opinion, familial hyperlipidemia could form the basis for service connection. See VAOPGCPREC 82-90. That Opinion makes it clear, however, that when a congenital or familial disease is the basis for a service-connection claim, “VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted the claimant’s military service.” Id. In this regard, moreover, the October 2019 VA examiner clearly stated that the Veteran’s familial, hyperlipidemia was “an inherent disease that began many years prior to any military service,” that it was “very likely the hyperlipidemia was present prior to service,” and that his “lipid issues were likely lifelong and very progressive.” However, neither the October 2019 VA examiner’s opinion nor any other evidence of record would be sufficient to rebut the presumption of soundness in this case. The examiner’s assessment that “lipid issues were likely lifelong and very progressive,” and that it was “very likely the hyperlipidemia was present prior to service”—while probative on the question of whether the Veteran had cholesterol problems prior to service—does not rise to the level of clear and unmistakable evidence that cholesterol problems preexisted service. Moreover, even if the Veteran’s cholesterol issues did preexist service, there is not clear evidence that they were not aggravated therein. In this regard, the Veteran’s cholesterol was measured at 286, and his triglycerides were 588 mg/dL, in September 1989, but had increased to 413 and 2315 mg/dL, respectively, by separation two years later. Furthermore, if considered a congenital defect, the Board would find that his in-service increased cholesterol levels, resulting from this chromosomal defect, constitute an in-service “superimposed disease or injury” that could provide the basis for service connection for the resultant disabilities of peripheral vascular disease and erectile dysfunction. See VAOPGCPREC 82-90; see also Medline Plus Medical Encyclopedia, https://medlineplus.gov/ency/article/000392.htm (last visited Feb. 16, 2021) (familial hypercholesterolemia is a genetic disorder caused by a defect on chromosome 19 that makes the body unable to remove low density lipoprotein (LDL, or bad) cholesterol from the blood, which results in a high level of LDL in the blood). Thus, regardless of whether the Veteran’s familiar hyperlipemia is considered a congenital disease or a congenital defect for VA service-connection purposes, resolving reasonable doubt in his favor, service connection is warranted for his current peripheral vascular disease and erectile dysfunction resulting from his in-service hyperlipidemia. Accordingly, service connection is granted for peripheral vascular disease of the lower extremities and erectile dysfunction.   REASONS FOR REMAND Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is remanded. The record reflects that the Veteran has undergone below the knee amputations of each lower extremity in 2015 and 2017. However, to what extent these amputations, or any other impairment or symptoms for which the Veteran may be compensated, are due to his peripheral vascular disease of the lower extremities, service-connected in this decision, is a matter that has not yet been addressed by the AOJ in the first instance. Therefore, the matter of eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, must be remanded for the AOJ to address in the first instance. The matters are REMANDED for the following action: After effectuating the Board’s decision, to include the grant of service connection for a peripheral vascular disease of the lower extremities, readjudicate the issue remaining on appeal. R.R. Watkins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.