Citation Nr: 22012833 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 18-42 574A DATE: March 7, 2022 ORDER Entitlement to a rating in excess of 10 percent for tinnitus is dismissed. Entitlement to service connection for dry eyes, as secondary to service-connected diabetes mellitus, is granted. REMANDED Entitlement to service connection for lumbar spine condition is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. During a December 2021 virtual hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal with respect to his claim of entitlement to a rating in excess of 10 percent for tinnitus. 2. The Veteran's dry eyes are associated with his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran regarding his claim of entitlement to a rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for dry eyes, as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1965 to May 1967, to include service in Vietnam. In December 2021, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Withdrawal and Dismissal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. Here, during the December 2021 virtual hearing, prior to the promulgation of a Board decision in the appeal, the Veteran expressed his intention to withdraw his appeal with respect to his claim of entitlement to a rating in excess of 10 percent for tinnitus. See December 2021 Hearing Transcript, p. 2. Accordingly, the Board finds that the appeal with respect to this issue has been withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). As there are no allegations of errors of fact or law for appellate consideration at this time, the Board does not have jurisdiction to review the appeal, and the claim of entitlement to a rating in excess of 10 percent for tinnitus is dismissed. Service Connection 1. Entitlement to service connection for dry eyes, as secondary to service-connected diabetes mellitus, is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, the record shows that the Veteran has been diagnosed with bilateral dry eyes. See October 2021 CAPRI, p. 3. Therefore, the first element of secondary service connection has been met. Wallin, 11 Vet. App. at 512. Second, the Veteran is service connected for diabetes mellitus; thus, the second element of secondary service connection is met. Wallin, 11 Vet. App. at 512. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed dry eye syndrome and his service-connected diabetes mellitus. As to this matter, the evidence conflicts. The Veteran underwent a VA examination in June 2018, in which the examiner noted that the Veteran did not currently have an eye condition. However, she also noted that the Veteran had dry eyes, both eyes, most likely associated with lagophthalmos. The examiner ultimately did not provide an etiological opinion with the "at least as likely as not" standard. She explained that there was no diabetic cause for visual impairment or disability and that the Veteran was noted to have mild lagophthalmos, which is incomplete closure of the eyelids. Neither lagophthalmos or dry eyes associated with lagophthalmos are caused by or the result of diabetes. Finally, she found that there was no cataract cause for visual impairment and that there was no evidence-based study showing that diabetes mellitus is a cause of cataract. A private December 2021 treatment note from Dr. A.B. reflects that he evaluated the Veteran due to concerns about dry eye symptoms in both eyes. He concluded that diabetes has been associated with an increased risk of dry eye syndrome in patients. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of secondary service connection is established. Wallin, 11 Vet. App. at 512. Thus, service connection for dry eye syndrome is warranted. REASONS FOR REMAND Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 2. Entitlement to service connection for lumbar spine condition is remanded. First, a remand is necessary to obtain missing VA and private treatment records. The Veteran testified that he received care of his back at Durham VAMC in the 1970's, as well as current treatment from a private chiropractor from Winston-Salem. However, no such records have been associated with the Veteran's claims file. On remand, the Veteran should be requested to identify and to authorize the release of those records, and the RO must make reasonable efforts to obtain the records including an initial request and at least one follow-up request if necessary. See 38 C.F.R. § 3.159(c)(1). All efforts to obtain private medical records must be documented. Second, the Veteran has not been afforded a VA examination with respect to his claim of service connection for a lumbar spine condition. VA's duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran's medical records reflects that he has been diagnosed with degenerative disc disease, spondylolytic spondylolisthesis, and degenerative joint disease of lumbar spine. See May 2021 CAPRI, p. 998. He has asserted that his lumbar spine condition is related to service. He contends that he injured his back after hitting the ground hard from parachuting and landing. As there is insufficient evidence of record to decide the claims, remand for an examination and etiology opinion is warranted. See McLendon, 20 Vet. App. at 83-86; Locklear v. Nicholson, 20 Vet. App. 410 (2006). 3. Entitlement to a rating in excess of 30 percent for PTSD is remanded. 4. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. 5. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is remanded. The Veteran contends that he is entitled to increased ratings for his PTSD and bilateral lower extremity peripheral neuropathy. The Veteran last underwent a PTSD VA examination and a peripheral neuropathy VA examination in November 2017. Since that time, the record reflects that his symptoms may have worsened. Specifically, he testified that he has daily panic attacks and gets paranoid while driving. He further testified that he has tingling and pain in his bilateral lower extremities while the November 2017 VA examination reflects that the Veteran did not have constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness, and that the Veteran's sciatic and femoral nerves were normal. Accordingly, the Board finds that updated VA examinations are necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a claimant is entitled to a new VA examination where there is evidence that the condition has worsened since that last examination). The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify any relevant medical records. Thereafter, with the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims file the entirety of the Veteran's VA and private medical records, to include from Durham VAMC from the 1970's and the chiropractor from Winston-Salem. All attempts to obtain these records pursuant to 38 C.F.R. § 3.159(c) must be documented. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and likely etiology of his lumbar spine condition. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination and this review should be acknowledged in the report. Based upon a review of the relevant evidence of record, the VA examiner should offer the following opinion: (a.) Obtain a detailed history of the Veteran's lumbar spine condition, to include any and all symptomatology. (b.) Determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's lumbar spine condition had its onset in or is related to service, to include hard landing on the ground after parachuting. The examiner must specifically discuss the Veteran's December 2021 Board hearing testimony, to include using over-the-counter medications. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of the Veteran's service-connected PTSD. The claims file should be made available to the examiner for review in connection with the examination. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's PTSD and specify the degree of occupational and/or social impairment. In addition to those symptoms elicited at the examination, the examiner must consider additional symptoms, if any, noted during the December 2021 Board Hearing. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity and manifestations of his service-connected peripheral neuropathy of the bilateral lower extremities. The claims folder must be made available to the examiner for review in connection with the examinations. The examination report must reflect that such a review was conducted. All necessary testing must be performed. The examiner should assess the severity of peripheral neuropathy in each extremity and address the functional effects of the Veteran's peripheral neuropathy of the lower extremities. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.