Citation Nr: 21027187 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-24 958 DATE: May 4, 2021 ORDER Entitlement to service connection for residuals of a lower back injury is dismissed. Entitlement to service connection for traumatic brain injury (TBI) is dismissed. Entitlement to service connection for type II diabetes mellitus (diabetes) is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, secondary to diabetes, is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity, secondary to diabetes, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, secondary to diabetes, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, secondary to diabetes, is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for residuals of a neck injury is remanded. Entitlement to service connection for erectile dysfunction, as secondary to diabetes, is remanded. Entitlement to service connection for peripheral vascular disease, as secondary to diabetes, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the January 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his attorney knowingly testified that he wished to withdraw the claims of entitlement to service connection for residuals of a lower back injury and TBI. 2. The Veteran's diagnosed diabetes is presumptively associated with his herbicide agent exposure during his active service in the Republic of Vietnam. 3. The Veteran's right upper extremity peripheral neuropathy was caused by his service-connected diabetes. 4. The Veteran's left upper extremity peripheral neuropathy was caused by his service-connected diabetes. 5. The Veteran's right lower extremity peripheral neuropathy was caused by his service-connected diabetes. 6. The Veteran's left lower extremity peripheral neuropathy was caused by his service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant as the claims of entitlement to service connection for residuals of a lower back injury and TBI have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 (re-designated as 38 C.F.R. § 19.55 at 84 FR 138, 177, Jan. 18, 2019, effective Feb. 19, 2019.) 2. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for right upper extremity peripheral neuropathy, secondary to diabetes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for left upper extremity peripheral neuropathy, secondary to diabetes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for right lower extremity peripheral neuropathy, secondary to diabetes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for left lower extremity peripheral neuropathy, secondary to diabetes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to October 1969. He is presumed to have been exposed to herbicide agents based on his United States Naval Support Activity, Danang, from August 1966 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran waived RO consideration of any additional evidence added to his file. Dismissal 1. Service connection for residuals of a low back injury is dismissed 2. Service connection for TBI is dismissed The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204 (legacy; re-designated as 38 C.F.R. § 19.55 at 84 FR 138, 177, Jan. 18, 2019, effective Feb. 19, 2019), § 20.205 (the Appeals Modernization Act (AMA)). In the present case, the Veteran, at his January 2021 Board hearing and in consultation with his representative, explicitly, unambiguously, and with a full understanding of the consequences, requested to withdraw the claims seeking service connection for residuals of a lower back injury and TBI. The undersigned clearly identified the withdrawn issues, and the Veteran and his representative both affirmed that the Veteran was requesting a withdrawal as to these claims. The Veteran's full understanding of the consequences is shown based on the fact that, on the record during the hearing, the consequences of withdrawal of these claims were fully discussed by the undersigned, the Veteran and his representative. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Therefore, there remain no allegations of errors of fact or law for appellate consideration regarding the appeals seeking service connection for residuals of a lower back injury and TBI. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 3. Service connection for diabetes is granted For diabetes, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The law and applicable regulatory provisions pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The law and regulations further stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Type II diabetes mellitus is associated with herbicide agent exposure. See 38 C.F.R. § 3.309(e); see also 38 U.S.C. § 1116(f). However, the provisions of 38 C.F.R. § 3.307(a)(6) must be met and the rebuttable presumption provisions 38 C.F.R. § 3.307(d) must be satisfied. Type II diabetes mellitus must become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6). A 10 percent rating is warranted for diabetes mellitus that is manageable by a restricted diet only. 38 C.F.R. § 4.119, Code 7913. As to the first requirement for service connection, a current disability, the Board finds the Veteran was diagnosed with diabetes during the appeal period. Specifically, although an August 2018 VA diabetes examination report notes there is no diagnosis of diabetes because the Veteran does not meet the criteria for a diagnosis of diabetes (and more recent January 2021 VA treatment records noting the Veteran has "prediabetes not diabetes"); April 2018 VA treatment records, 3 weeks prior to his May 2018 claim for service connection for diabetes, show the Veteran's "chronic medical problems" included "new onset DM [diabetes mellitus]" based on fasting sugars of 126 or more on two separate occasions. It is noted the Veteran declined medications and the plan was to "continue low CHO [carbohydrate] diet and limit simple sugars." Thus, the first requirement of service connection, a present disability, for diabetes is met. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). With respect to the second requirement of service connection, the Board will separately discuss in-service disease (to include the one-year presumptive period after service) and injury. The Veteran's service treatment records do not reflect a diagnosis of diabetes. Moreover, diabetes was not diagnosed until many years after his separation from active duty service. Therefore, the preponderance of the competent evidence shows that there was no diagnosis of diabetes in service or during the one-year presumptive period. An August 2019 rating decision (in connection with unrelated claims) includes the Favorable Findings that the Veteran was exposed to Agent Orange during military service and his military personnel records show he served in Vietnam. The Veteran's service personnel records show he participated in (and received a unit commendation for) the Naval Support Activity, Danang, during the Tet Offensive from August 1966 to December 1967. See, also, July 2018 Initial Psychological Evaluation report, which notes the Veteran recalled he was "deployed to Vietnam in November 1967 to 1968" and "completed a second tour on an aircraft carrier [off] the coast of Vietnam in 1968 to 1969." Thus, as he is presumed to have been exposed to herbicide agents based on his Vietnam service, the second requirement for service connection, in-service injury, is established on a presumptive basis. Turning to the third requirement for service connection, medical nexus, when a Veteran is presumed exposed to an herbicide agent, a presumption of service connection arises under 38 C.F.R. § 3.309(e) if that Veteran develops one of several enumerated conditions associated with herbicide agent exposure, to include diabetes. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 309(e). Nonetheless, diabetes has to be manifested to a degree of 10 percent or more for the presumption of service incurrence to apply. The August 2018 VA diabetes examination report shows that the Veteran's diabetes was managed by restricted diet and weight loss (essentially, this examination report shows the Veteran does not meet the criteria for diagnosis of diabetes because it is managed by diet and weight loss). In addition, the April 2018 VA treatment report notes the Veteran declined medications and the plan was to "continue low CHO [carbohydrate] diet and limit simple sugars." As such, the record shows the Veteran's diabetes was severe enough that a restricted diet was required for its management (and a May 2019 VA treatment report notes the Veteran's "blood sugar [was] much better since losing weight.") Accordingly, the evidence is in equipoise as to whether the Veteran's diabetes is manageable by a restricted diet only. Finally, there is no affirmative evidence to support a conclusion that the Veteran's diabetes was not incurred in service. Accordingly, the third requirement for service connection, medical nexus, is established on a presumptive basis. As the Board finds that reasonable doubt may be resolved in the Veteran's favor with regard to the question of whether he has diabetes diagnosed during the appeal period, service connection for diabetes presumptively associated with his presumed herbicide agent exposure during his active duty service is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Service connection for peripheral neuropathy of the right upper extremity is granted. 5. Service connection for peripheral neuropathy of the left upper extremity is granted. 6. Service connection for peripheral neuropathy of the right lower extremity is granted. 7. Service connection for peripheral neuropathy of the left lower extremity is granted. The Veteran also seeks service connection for peripheral neuropathy of the bilateral upper and lower extremities on the basis that they are secondary to his diabetes. An August 2018 VA diabetes examination report includes the finding that the Veteran has diabetic peripheral neuropathy. An August 2018 VA peripheral nerves examination report includes a diagnosis of idiopathic peripheral neuropathy (sensory) and findings of bilateral upper extremity paresthesias and/or dysesthesias and bilateral lower extremity numbness. It is also noted the Veteran had trophic changes attributable to peripheral neuropathy, described as loss of hair on lower legs. Given the Board's determination of service connection for diabetes, and the relationship between the Veteran's diabetic peripheral neuropathy of the upper and lower extremities, service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities is also warranted. Accordingly, service connection for peripheral neuropathy of the bilateral upper and lower extremities secondary to diabetes is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 8. An increased rating for PTSD is remanded 9. Service connection for residuals of a neck injury is remanded Initially, it is noted that review of the record suggests that the medical evidence available for review is incomplete with respect to the claims of service connection for residuals of a neck injury and increased rating for PTSD. The potentially missing evidence is not relevant to the service connection claims decided above and, as the decisions are fully favorable, there is no prejudice to the Veteran. Specifically, during his August 2018 VA PTSD examination, the Veteran reported he "currently sees a therapist at the VA in Brick every other week, which has been reduced from once weekly" and, during his January 2021 Board hearing, he reported PTSD treatment with "Dr. Florek and Dr. Walter from Lakewood" and group therapy at the VA in Bricktown (he had not received VA PTSD treatment since April 2019). Although updated VA treatment records through March 2021 have been associated with the claims file, there are no VA mental health treatment records since the Veteran's initial September 2017 referral for mental health assessment and PTSD diagnosis. Similarly, although the August 2018 VA neck disorders examination report notes "there is no diagnosis because there is no pathology to render a diagnosis," the examination report also shows the Veteran reported having received chiropractic treatment in January 1971 (when he was told he had a compression injury), 1982-1983 (when he was treated by Dr. Buchard, Queens, NY) and December 1992 (when he underwent X-ray examination and was told he had an old compression fracture.) Although an October 2018 Formal Finding on the Unavailability of treatment records certifies that treatment records from January 1972 to the present from the VA Medical Center (VAMC) in Brooklyn, NY and East Orange (Brick, NJ Clinic) do not exist; VA has not attempted to obtain the records of treatment identified by the Veteran during his VA neck examination. Accordingly, adjudication of the claims for service connection for residuals of a neck injury and increased rating for PTSD are deferred pending development to obtain the treatment records identified by the Veteran. 10. Service connection for erectile dysfunction is remanded 11. Service connection for peripheral vascular disease is remanded The Veteran claims service connection for erectile dysfunction secondary to his now service-connected diabetes. Although the Veteran is competent to describe his erectile dysfunction, he is not competent to provide an opinion as to the cause of this condition and has not been afforded VA examination to evaluate his symptoms. In addition, although the August 2018 VA diabetes examination report notes the Veteran has peripheral vascular disease due to diabetes, the examination report includes no additional details as to this condition and he has not been afforded VA arteries and veins examination (although the examination report instructed the examiner to complete such an examination). As such, the Board has no way to determine the extremity affected by the Veteran's peripheral vascular disease. Accordingly, remand to obtain evaluations for erectile dysfunction and peripheral vascular disease is required. 12. Entitlement to a TDIU is remanded The Veteran's August 2018 VA PTSD examination report shows he was "not working currently and does not feel able to work due to neuropathy and concentration difficulties." As such, although the Veteran has not claimed entitlement to TDIU, this claim is raised by the record in connection with his PTSD increased rating claim and now service connected peripheral neuropathy of each extremity. Accordingly, the matter of entitlement to a TDIU rating is deferred resolution of the PTSD increased rating claim remanded herein and implementation of the above grants of service connection for diabetes and bilateral upper and lower extremity peripheral neuropathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for symptoms related to his neck injury residuals since his October 1969 separation from service and for mental health symptoms since his May 2018 claim for service connection for PTSD. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records. The attention of the AOJ is specifically directed to the following: Records of chiropractic treatment for neck complaints in January 1971, when he was told he had a compression injury. Records of treatment from Dr. Buchard, Queens, NY, from 1982-1983. December 1992 treatment, when he underwent X-ray examination and was told he had an old compression fracture. Complete updated VA mental health treatment records, including records of individual and group therapy at VA facilities in Brick, NJ and Lakewood, NJ since 2017. 2. After the development in paragraph 1 has been completed to the extent possible, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his erectile dysfunction. After interview and, if feasible, examination of the Veteran and review of his claims file, the examiner should respond to the following: a.) The examiner is asked to determine if the Veteran has a current diagnosis (or has had at any time proximate to the appeal period since his May 2018 claim for service connection) of erectile dysfunction. b.) If so, the examiner must state: (i) whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current erectile dysfunction is proximately due to diabetes? And (ii) whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current erectile dysfunction is proximately due to diabetes The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the development in paragraph 1 has been completed to the extent possible, please schedule the Veteran for a VA arteries and veins examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature of his peripheral vascular disease. After interview and, if feasible, examination of the Veteran and review of his claims file, the examiner should respond to the following: The Veteran has been diagnosed with peripheral vascular disease due to diabetes. See August 2018 VA diabetes examination report. The examiner is asked to conduct a complete arteries and veins examination and identify the affected extremity with a description of the associated symptoms. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion in order to provide information as to his employment and education. 5. After the grants of service connection for diabetes and bilateral upper and lower extremity peripheral neuropathy have been implemented, the above ordered development is completed and the remanded claims have been readjudicated; please readjudicate the matter of TDIU. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kshama Hughes 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.