Citation Nr: 22017440 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-00 833 DATE: March 25, 2022 ORDER Entitlement to service connection for peripheral neuropathy, right upper extremity, as secondary to diabetes mellitus type II is granted. Entitlement to service connection for peripheral neuropathy, left upper extremity, as secondary to diabetes mellitus type II is granted. Entitlement to service connection for peripheral neuropathy, right lower extremity, as secondary to diabetes mellitus type II is granted. Entitlement to service connection for peripheral neuropathy, left lower extremity, as secondary to diabetes mellitus type II is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 27, 2017, is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's bilateral upper extremity peripheral neuropathy is secondary to his service-connected diabetes mellitus type II. 2. The evidence is in relative equipoise as to whether the Veteran's bilateral lower extremity peripheral neuropathy is secondary to his service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. Resolving any doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy, right upper extremity, as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Resolving any doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy, left upper extremity, as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Resolving any doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy, right lower extremity, as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. Resolving any doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy, left lower extremity, as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to April 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and a witness (M.R.) testified at a teleconference hearing held before the undersigned Veterans Law Judge in November 2021. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for peripheral neuropathy, right upper extremity, as secondary to diabetes mellitus type II is granted. 2. Entitlement to service connection for peripheral neuropathy, left upper extremity, as secondary to diabetes mellitus type II is granted. 3. Entitlement to service connection for peripheral neuropathy, right lower extremity, as secondary to diabetes mellitus type II is granted. 4. Entitlement to service connection for peripheral neuropathy, left lower extremity, as secondary to diabetes mellitus type II is granted. The Veteran contends that peripheral neuropathy in his bilateral upper and lower extremities are secondary to his service-connected diabetes mellitus type II. See November 2021 Board hearing transcript at 2, 8. 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 be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's VA and private examinations show a diagnosis of peripheral neuropathy in his bilateral upper and lower extremities. He is service-connected for diabetes mellitus type II. Thus, the question for the Board is whether a nexus between his current peripheral neuropathy and his diabetes has been shown. There are competing medical evidence in this is regard. In a February 2013 private diabetes mellitus disability benefits questionnaire (DBQ), the Veteran was diagnosed with diabetes mellitus type II; the clinician noted the Veteran has diabetic peripheral neuropathy as a complication of his diabetes. In a February 2013 private diabetic sensory-motor peripheral neuropathy DBQ, the Veteran was diagnosed with peripheral sensory neuropathy. The clinician noted that the Veteran's diabetes mellitus was diagnosed in 2012 but that he had pre-existing pre-diabetes for the past 30 years. He also noted that the Veteran had longstanding neuropathy in the lower extremities since 1966 and in the upper extremities for 10 years. In an August 2013 VA examination for diabetes, he was diagnosed with diabetes mellitus type II; a complication of his diabetes was identified as diabetic peripheral neuropathy. In the August 2013 VA examination for diabetic sensory-motor peripheral neuropathy, the Veteran was diagnosed with peripheral/diabetic neuropathy. The examiner noted that the Veteran was diagnosed with diabetic neuropathy about two years ago, and that he complained of progressively worsening numbness and occasional tingling sensations in his fingers, hands, toes, and bottom of the feet. The Veteran exhibited numbness and paresthesias/dysesthesias in his bilateral upper and lower extremities. On the question of whether the Veteran's peripheral neuropathy of bilateral upper and lower extremities was secondary to his diabetes, the examiner rendered an inconclusive opinion that she "cannot resolve this issue without the resort of mere speculation due to the fact that in addition to diabetes mellitus[,] the veteran has other medical conditions that can be associated with neuropathy," as the Veteran "has long history of Vit[amin] B12 deficiency which can present with peripheral neuropathy, and lumbar spinal stenosis which can cause neuropathy symptoms in the lower extremities." The Veteran's VA treatment records in 2017 intermittently note "Hx [history] of DM [diabetes mellitus] with peripheral neuropathy"; a February 2018 VA record noted NIDDM [noninsulin-dependent diabetes mellitus] with neuropathy; a May 2018 VA physical therapy record noted "Diabetic Neuropathy." At the November 2021 Board hearing, the Veteran indicated that the peripheral neuropathy in his arms and legs started after he was diagnosed with diabetes. After reviewing the record, resolving any doubt in the Veteran's favor, the Board finds that the evidence is in least in relative equipoise as to whether the Veteran's peripheral neuropathy is secondary to his service-connected diabetes. The February 2013 private DBQ shows the Veteran has diabetic peripheral neuropathy as a complication of his diabetes; the August 2013 VA examination report shows a diagnosis of peripheral/diabetic neuropathy, and that the neuropathy was a complication of his diabetes. The Veteran's VA records intermittently note diabetes with neuropathy, and a May 2018 VA record noted diabetic neuropathy. The Veteran indicated at the Board hearing that he experienced neuropathy in his arms and legs after being diagnosed with diabetes. While the August 2013 VA examiner stated that "in addition to diabetes mellitus[,] the veteran has other medical conditions that can be associated with neuropathy," she did not negate the association between his diabetes and neuropathy. Taken as a whole and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is secondary to his service-connected diabetes mellitus type II. Accordingly, entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities, as secondary to service-connected diabetes, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. At an August 2013 VA examination for male reproductive system conditions, the Veteran was diagnosed with erectile dysfunction of 40 years. The Veteran reported he has had problems with erectile dysfunction since his early 20s and believed that it is due to psychological reasons. The examiner opined that the Veteran's erectile dysfunction is less likely than not 'related to' his service-connected diabetes because the onset of the Veteran's erectile dysfunction was many years prior to the onset of diabetes in 2010. She also noted that the Veteran's erectile dysfunction has a significant psychologic component, which is not typical for diabetes-related erectile dysfunction. The U.S. Court of Appeals for Veterans Claims has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). At the November 2021 Board hearing, the Veteran and his wife testified that the Veteran had erectile dysfunction prior to entering active service. The Veteran asserted, however, that his erectile dysfunction was aggravated by his PTSD. See November 2021 Board hearing transcript at 11-13. As the evidence of record does not address aggravation of erectile dysfunction by his service-connected diabetes mellitus, and as the evidence newly raises aggravation by his service-connected PTSD, a remand is required for an addendum opinion. 2. Entitlement to a rating higher than 50 percent for PTSD is remanded. The Veteran asserted at the November 2021 Board hearing that his PTSD has gotten worse over the years, especially in the last two years because of the pandemic lockdown and inability to attend face-to-face therapy. See November 2021 Board hearing transcript at 2. The record shows that the Veteran was last examined in 2013. See August 2013 VA examination for PTSD. VA's duty to assist requires affording the Veteran a new VA examination to accurately assess the current level of impairment when there is evidence that the disability may have worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The claim is thus remanded for an examination to assess the current severity of his PTSD. 3. Entitlement to a TDIU prior to July 27, 2017, is remanded. In September 2018, the RO granted a TDIU effective July 27, 2017. The Veteran contends that he is entitled to a TDIU prior to that date considering his service-connected disabilities. See November 2021 Board hearing transcript at 14-15. This matter is inextricably intertwined with the now service-connected peripheral neuropathy of the bilateral upper and lower extremities and the effective dates and initial ratings to be assigned. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. 2. Obtain addendum opinions from an appropriate clinician regarding whether the Veteran's erectile dysfunction is at least as likely as not aggravated beyond its natural progression by his service-connected diabetes mellitus and/or PTSD. The need for an examination is left to the discretion of the clinician. The opinions and rationales must separately address whether there is proximate causation AND whether there is aggravation as it relates to each service-connected disability of diabetes and PTSD. The examiner is further advised that secondary service connection does not require permanent worsening of the claimed secondary condition. Rather, it requires consideration of whether there has been any worsening, no matter how incremental, beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). A complete must be provided for any opinions rendered. 3. Following the effectuation of the peripheral neuropathy awards, and any other necessary development, readjudicate the matter of entitlement to a TDIU prior to July 27, 2017. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.