Citation Nr: 21027250 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-59 017 DATE: May 5, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to and/or aggravated by service-connected diabetes mellitus, type II, and/or due to exposure to an herbicide agent, is remanded. Entitlement to an increased disability evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, to include whether separate ratings should be established for right-upper-extremity and left-upper-extremity diabetic neuropathies of both the radial and ulnar nerves, is remanded. Entitlement to an initial compensable disability evaluation for service-connected bilateral hearing loss is remanded. Entitlement to a separate compensable evaluation for erectile dysfunction, currently as associated with service-connected diabetes mellitus, type II, is remanded. Entitlement to an earlier effective date for service connection for erectile dysfunction and for entitlement to special monthly compensation (SMC) at the K rate based on loss of use of a creative organ is remanded. Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 through October 1969, during part of which service he was deployed to the Republic of Vietnam. 1. Entitlement to service connection for hypertension, to include as secondary to and/or aggravated by service-connected diabetes mellitus, type II, and/or due to exposure to an herbicide agent. The Veteran was afforded a VA examination for hypertension in January 2014, In which the VA examiner did not provide an opinion for secondary service connection of hypertension caused by diabetes mellitus and concluded that , because of the lack of documentation in the record, secondary causation "cannot be determined without mere speculation." Later in January 2014, an addendum opinion was requested of a different VA examiner who was asked to provide only an opinion addressing aggravation of hypertension by service-connected diabetes mellitus. His opinion was negative and explained in his rationale. The April 2021 Appellate Brief, submitted on the Veteran's behalf, asserts that the December 2015 VA examiner for diabetes mellitus stated that it was at least as likely as not that diabetes mellitus aggravated the Veteran's hypertension and further asserts that service connection should be granted on the basis of this statement. However, the December 2015 VA examiner provided no rationale to explain her conclusion. Moreover, in the October 2010 VA examination for diabetes mellitus, the Veteran reported his medical history as hypertension having preceded his diabetes. The November 2017 VA examiner for diabetes mellitus, although finding erectile dysfunction was due to diabetes, did not make the same finding for hypertension, nor did he make a finding of aggravation of hypertension by diabetes. What remains clear from the record is that there has been no opinion rendered for direct service connection of hypertension, for hypertension as secondary to diabetes mellitus, for hypertension as due to exposure to an herbicide agent, regardless of hypertension not being included in the relevant regulation for those diseases eligible for presumptive service connection, or for hypertension secondary to and/or aggravated by the Veteran's service-connected psychiatric disorder, to include post-traumatic stress disorder (PTSD) and chronic sleep impairment, a basis for service connection put forth in the April 2021 Appellate Brief. The Board requires opinions addressing all possible avenues of service connection, supported by rationales informing the Board exactly how and on what bases conclusions were reached. For these reasons, the record for this claim must be reviewed by a VA examiner and several specific opinions rendered. The claim is remanded. 2. Entitlement to an initial disability evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, to include whether separate ratings should be established for right-upper-extremity and left-upper-extremity diabetic neuropathies of both the radial and ulnar nerves. 3. Entitlement to an initial compensable disability evaluation for service-connected bilateral hearing loss. 4. Entitlement to a separate compensable evaluation for erectile dysfunction, currently as associated with service-connected diabetes mellitus, type II. 5. Entitlement to an earlier effective date for service connection for erectile dysfunction and for entitlement to SMC at the K rate based on loss of use of a creative organ. 6. Entitlement to TDIU. The Board's review of the record shows that the Veteran was informed that the current appeal was certified to the Board by a letter sent in March 2017. However, after that date, the record has been expanded with no less than 6 more VA examinations and 2 opinions addressing diabetes mellitus, diabetic peripheral neuropathy, erectile dysfunction, hearing loss, as well as PTSD, not part of this appeal, but the findings of which would be necessarily considered for the claim of TDIU. Moreover, the record has been supplemented with multiple VA medical records comprised of approximately 2100 pages, a cursory review of which shows at the very least hundreds of references to the issues on appeal. It appears that development of these claims has continued after certification to the Board, indicated particularly by the numerous treatment records now associated with the file. In order that the Veteran be apprised of information additional to that contained in the two November 2016 Statements of the Case, further development is needed. 38 C.F.R. § 19.31 (b). The Agency of Original Jurisdiction (AOJ) has yet issued no Supplemental Statement of the Case indicating review of these examinations and records, nor the necessary adjudication of the claims, to provide the Board the basis on which it can establish its jurisdiction and proceed with this appeal, as well as inform the Veteran that the claim is now fully developed. Additionally, as the issue of entitlement to TDIU remains inextricably intertwined with the remanded claims, the Board defers appellate consideration of the TDIU claim pending completion of the action directed below, when it will be returned to the Board. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment hypertension at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for the review of the claims file by a VA examiner other than the January 2014 VA examiner for hypertension, with an appropriate specialty for producing findings for hypertension. The complete electronic claims file must be made available to the examiner in conjunction with the review. The examiner should detail all findings. Should the examiner determine that a VA examination for hypertension is necessary, the AOJ should arrange for that examination. The examiner for hypertension, after identifying the diagnosis, as well as the nature, extent and severity of the claimed disorder, is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that hypertension was incurred during active service or was caused by an event, injury, or illness during active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that hypertension was proximately due to, the result of, or made worse beyond its natural progression by (secondary to and/or aggravated by) diabetes mellitus. (c) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that hypertension was caused by exposure to an herbicide agent. Although hypertension does not appear among those diseases listed in VA regulations which might be afforded presumptive service connection due to exposure, the examiner nonetheless is requested to give an opinion on causation or lack thereof by such exposure. (d) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that hypertension proximately due to, the result of, or made worse beyond its natural progression (secondary to and/or aggravated by) the Veteran's service-connected psychiatric disorder, to include particularly PTSD and sleep impairment. The Board directs the examiner's attention to the research citations and summary of research on the above opinion questions in the April 2021 Appellate Brief at pages 8 through 13. The opinions rendered by the examiner must be accompanied by a rationales, by which conclusions are supported by references to and discussion of findings on examination (if an examination is deemed necessary), to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationales on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss any lay statements of the Veteran in the record, as well as the Veteran's reports to treatment providers, as they appear throughout the record, and all lay evidence of other persons as it pertains to hypertension. The Board urges the examiner to note that findings or opinions rendered without addressing and discussing the lay evidence of the Veteran and others will be deemed insufficient for purposes of VA adjudication 3. Review the evidence added to the record since certification of this appeal to the Board on March 1, 2017, to include the above opinions and findings for hypertension and VA medical records. To the extent that the benefits sought are not granted, issue a Supplemental Statement of the Case outlining all pertinent evidence and discussing adjudication of the claims, to include the claim for TDIU. Allow an appropriate opportunity for the Veteran's response before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.