Citation Nr: 21027893 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-39 850A DATE: May 7, 2021 REMANDED Entitlement to an evaluation in excess of 40 percent for chronic prostatitis is remanded. Entitlement to a compensable evaluation for erectile dysfunction is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cardiovascular disorder is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a rash in the groin area is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type 2 is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2015, August 2015 and February 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Entitlement to an evaluation in excess of 40 percent for chronic prostatitis is remanded. 2. Entitlement to a compensable evaluation for erectile dysfunction is remanded. 3. Entitlement to service connection for a cardiovascular disorder is remanded. 4. Entitlement to service connection for a rash in the groin area is remanded. 5. Entitlement to service connection for bilateral pes planus is remanded. 6. Entitlement to service connection for diabetes mellitus, type 2 is remanded. 7. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. 8. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Subsequent to issuance of the supplemental statement of the case (SSOC) in February 2018, but before transfer of the case to the Board in July 2019, additional relevant, non-duplicative evidence was added to the claims file: a VA male reproductive examination addressing the Veteran's erectile dysfunction and prostate claims; a June 2018 VA examination addressing the Veteran's heart disability; VA medical records associated in June 2018 which include treatment and diagnosis of the Veteran's claimed skin disability, a diabetic foot examination, diabetic neuropathy diagnoses, and diabetes mellitus treatment and diagnosis. The Board notes that the foregoing list of relevant evidence is not intended to be exhaustive. No supplemental statement of the case was issued after receipt of this evidence. The appellate scheme set forth in 38 U.S.C. § 7104(a) (2012) contemplates that pertinent evidence will first be reviewed by the agency of original jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ obtains additional evidence after it has issued an SOC or SSOC, but before transfer of the case to the Board, an SSOC must be furnished to the Veteran and his or her representative, if any, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. 38 C.F.R. § 20.1304(c). Therefore, the Board has no choice but to remand this claim so that the AOJ can consider the newly associated evidence in the first instance. In addition, the Board acknowledges that in an April 6, 2021 brief, the Veteran's representative submitted exhaustive evidence regarding the Veteran's alleged herbicide exposure during his service in Panama. This evidence includes the Veteran's own affidavit; an official Army Supply Bulletin indicative of herbicide presence and use in the Panama Canal Zone; a contemporaneous environmental sampling report reflective of herbicide presence; and a US Army Corps of Engineers report showing large scale testing of herbicides in the Panama Canal Zone. Furthermore, the brief contains legal argument in favor of the Veteran's claim. The Board notes that there are two separate administrative findings of record, in February 2015 and in August 2015, formally finding that there was a lack of information to verify herbicide exposure. However, the aforementioned documentation was not considered. Thus, on remand, the AOJ must consider this additional information in the context of determining the Veteran's exposure to herbicide agents. Finally, the Board notes that review of the Veteran's VA medical records, including treatment notes in April 2018, reflects that the Veteran has sought and continues to seek treatment for his disabilities, including but not limited to his hands, feet and diabetes mellitus, type 2 with one or more private providers. These records may be materially relevant to his claims and must be sought on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the claims on appeal. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms involving his claimed disabilities since service discharge. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Thereafter, request verification from the JSRRC or other indicated sources of the Veteran's exposure to herbicides in service, to include consideration of evidence provided by the Veteran and his representative after the August 2015 formal finding of lack of information. 3. Provide a supplemental statement of the case to the Veteran and his representative regarding the above claims, to include consideration of the relevant evidence received following the February 2018 SSOC. An appropriate period of time should be allowed for the Veteran and his representative to respond before the case is returned to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.