Citation Nr: 22015486 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-02 092 DATE: March 17, 2022 ORDER Entitlement to service connection for type II diabetes mellitus (diabetes) is granted. Entitlement to service connection for right lower extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. REMANDED Entitlement to service connection for a right upper extremity neurological disorder is remanded. Entitlement to service connection for a left upper extremity neurological disorder is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's diabetes is of a compensable degree and is presumptively related to his exposure to herbicide agents in service. 2. The Veteran's right lower extremity peripheral neuropathy is proximately due to his diabetes. 3. The Veteran's left lower extremity peripheral neuropathy is proximately due to his diabetes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1967 to December 1973. His decorations include the Combat Action Ribbon and the Vietnam Service Medal with one Bronze Star. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. 1. Entitlement to service connection for diabetes is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure include diabetes, if manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. See 38 C.F.R. § 3.307(d). Here, the Veteran is currently diagnosed with diabetes, requiring use of an oral hypoglycemic agent and restricted diet, which is consistent with at least a 10 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7913. See August 2020 private treatment record. In August 2021, VA conceded the Veteran's exposure to herbicide agents based on his nautical service in the offshore eligible waters defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Board notes that there is insufficient evidence to rebut the presumption that the Veteran's diabetes is related to his in-service exposure to herbicide agents, as there is no competent medical opinion of record clearly attributing the same to intercurrent causes. Accordingly, presumptive service connection for diabetes is established. 2. Entitlement to service connection for right lower extremity peripheral neuropathy is granted. 3. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. As secondary service connection under 38 C.F.R. § 3.310(a) is warranted, the Board need not address the Veteran's contentions on direct service connection. Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310(a). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998). The Veteran is currently diagnosed with bilateral lower extremity peripheral neuropathy (see March 2021 private treatment record) and is now service-connected for diabetes, as discussed above. Thus, the first two elements of secondary service connection are established. Regarding the last element, nexus, bilateral lower extremity peripheral neuropathy associated with diabetes is identified in the Veteran's treatment records. See April 2017 private treatment record (noting diabetes with mild peripheral neuropathy); November 2019 VA treatment record (foot exam for diabetes, monofilament testing shows decreased sensation in bilateral feet and Veteran noted to have long-standing neuropathy); March 2021 private treatment record (noting diabetes with neuropathy; notes significant peripheral neuropathy with limited sensation in feet). These findings are demonstrative of an etiological relationship between the Veteran's diabetes and his bilateral peripheral neuropathy, and there is no competent opinion to the contrary. Accordingly, secondary service connection for right and left lower extremity peripheral neuropathy is granted. REASONS FOR REMAND 4. Entitlement to service connection for a right upper extremity neurological disorder is remanded. 5. Entitlement to service connection for a left upper extremity neurological disorder is remanded. The Veteran has not yet been afforded a VA examination for his bilateral upper extremity neurological disorder and the duty to obtain one is triggered based on his testimony and the evidence of record. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran was last afforded an examination for his service-connected bilateral hearing loss in October 2018, and the record indicates that his hearing loss may have worsened since that time. See Board Hearing Transcript at 13. Accordingly, a remand is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, VA treatment records indicate that audiological evaluations were conducted during the relevant period on appeal. However, the audiogram results are not viewable in the records currently available. Thus, the audiogram results should be obtained on remand, as well as any outstanding treatment records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to specifically include a copy of the May 5, 2016 and August 30, 2018 audiogram results (viewable using the using the "AudiogramDisplay" option under the "Tools" menu) and the August 27, 2021 audiogram results (available in "CPRS under TOOLS-AUDIOGRAM DISPLAY"). Also, to the extent possible, seek clarification as to whether the evaluations utilized the Maryland CNC speech discrimination test. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. All findings should be reported in detail. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral upper extremity neurological disorder. The entire claims file should be made available to the examiner. All findings should be reported in detail. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right and/or left upper extremity neurological disorder: (a) had its onset in service or is otherwise related to service, to include as a result of conceded herbicide agent exposure therein; (b) is proximately due to service-connected diabetes; or (c) has been aggravated (worsened beyond natural progression) by service-connected diabetes. Please do not rely solely on negative service treatment records and/or the fact that presumptive service connection is not available for the condition in question. In answering questions (2) and (3), please note there is no temporal requirement that the primary condition (diabetes) be service-connected, or even diagnosed, at the time the secondary condition (upper extremity neurological disorder) is incurred. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.