Citation Nr: 1007137 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-35 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2009. A transcript of those proceedings has been associated with the Veteran's claims file. FINDINGS OF FACT 1. The Veteran's service treatment records are void of any reference to treatment for or a diagnosis of neuropathy. 2. The first neuropathy diagnosis of record is in 2003, more than 30 years after the Veteran's discharge from service. 3. The Veteran's neuropathy diagnosis predates his diabetes mellitus diagnosis. 4. There is no medical evidence that neuropathy has increased in severity due to diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the upper and lower extremities have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With regard the duty to notify, VA's notice requirements were fulfilled by a letter dated in November 2004, which was sent prior to the issuance of the rating decision on appeal and which advised the Veteran of the criteria for establishing service connection. Regarding VA's duty to assist, the Board finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issues on appeal has been obtained. The Veteran's service, private, and VA treatment records have been obtained. Moreover, the Veteran has not identified any relevant, available evidence that is not of record. The Veteran also testified at a hearing before the undersigned Veterans Law Judge, and he was examined for VA purposes in connection with his claim, with a medical opinion provided. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran contends that peripheral neuropathy of his bilateral upper and lower extremities is attributable to his service-connected diabetes mellitus. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2008). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service- connected disorder, or to the extent a non-service connected disability is increased in severity by a service connected disability. 38 C.F.R. § 3.310(a) (2009). Additionally, service connection for certain diseases, including acute and subacute peripheral neuropathy (meaning transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset), may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to a herbicide applies for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. While the Veteran served in Vietnam, since this is now many decades after his presumed exposure to herbicides, the presumptive service connection provisions regarding acute and subacute peripheral neuropathy are not applicable. The Veteran's service treatment records are void of any reference to peripheral neuropathy, and the first neuropathy diagnosis of record is reflected in a private June 2003 EMG/nerve conduction study. This followed a May 2003 private treatment record reflecting the Veteran's report of bilateral upper extremity numbness. The June 2003 EMG study performed in conjunction with his complaints was interpreted to reveal various upper extremity neuropathies. The report further states that the Veteran's multiple mononeuropathies suggest that a more generalized process of peripheral polyneuropathy could be occurring. Thereafter, an August 2004 private treatment record reflects an assessment of probably peripheral neuropathy. The Veteran underwent a VA diabetes mellitus examination in February 2005, and the examiner noted his review of the Veteran's claims file in conjunction with the examination. During the examination, the Veteran reported experiencing peripheral neuropathy for more than three years prior to the time of the examination (in approximately 2002) and that an EMG study performed two years prior to the time of the examination (in approximately 2003) was positive for neuropathy. The Veteran further reported having been diagnosed with diabetes mellitus in August 2004 by his private physician and that he had been successfully regulating his diabetes mellitus with Metformin since that time, with excellent control. The Veteran reported right arm numbness and a previous carpal tunnel release, and he complained of left shoulder pain, but no numbness in that arm. On physical examination, the Veteran's upper extremity sensory examination was intact, but the Veteran demonstrated shoulder impingement. The Veteran's lower extremities revealed normal sensory testing with the exception of Weinstein filament test on the plantar surface of the Veteran's feet, which produced limited recognition. The examiner subsequently diagnosed the Veteran with idiopathic neuropathy, which he characterized as quite mild in nature. The examiner further stated that the onset of the neuropathy was three years prior to the time of the examination (based on the Veteran's report), and that because the Veteran's peripheral neuropathy predated his diabetes mellitus, his peripheral neuropathy was therefore not secondary to his diabetes mellitus. In letters dated in August and October 2005, the Veteran's private physician stated his understanding that the VA had denied the Veteran's service connection claim based on well- documented evidence that the Veteran's peripheral neuropathy predated his diagnosis of diabetes mellitus, thereby suggesting that the Veteran's peripheral neuropathy may not be caused by his diabetes mellitus. However, the physician questioned why diabetes mellitus, diagnosed many years after in-service herbicide exposure, could be deemed attributable to in-service herbicide exposure, whereas peripheral neuropathy must be diagnosed within a short period of time after herbicide exposure to be deemed service-connected. Finally, the physician stated that while it is well-known that peripheral neuropathy is associated with diabetes mellitus, there are cases of peripheral neuropathy in the absence of diabetes mellitus. Turning first to the issue of direct service connection, there is no evidence of record suggesting that the Veteran's neuropathy is directly related to his period of service, as his service treatment records are void of any reference to sensory impairment or a diagnosis of neuropathy. Moreover, the Veteran himself does not contend that his neuropathy began in or is directly attributable to service, and he was first diagnosed with neuropathy more than 30 years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (stating that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Turning next to the Veteran's claimed theory of entitlement, that his peripheral neuropathy is secondary to his service- connected diabetes mellitus, the Board notes that the VA medical examiner opined that the Veteran's neuropathy was unrelated to his diabetes mellitus, as his neuropathy predated his diabetes mellitus. The Board finds this evidence consistent with the evidence of record, which includes the Veteran's report of experiencing the symptoms of neuropathy in approximately 2002, his treatment for and diagnosis of neuropathy in 2003, and his diagnosis of diabetes mellitus in 2004. Furthermore, the medical evidence of record does not suggest that the Veteran's neuropathies have been thought to be associated with his diabetes mellitus, as his recent VA treatment records refer to diagnoses of diabetes mellitus, without known complications, as well a unspecified idiopathic peripheral neuropathy. Likewise, the Veteran's prior carpel tunnel release suggests that another etiology of his extremity pain and numbness was suspected. Furthermore, the letters from the Veteran's private treating physician do not suggest that the Veteran's neuropathy is secondary to or aggravated by his diabetes mellitus, but rather state that in addition to neuropathy associated with diabetes mellitus, there are cases of neuropathy in the absence of diabetes mellitus. Accordingly, the Board finds that the VA examiner's medical opinion is probative as it was definitive, based upon a review of the Veteran's claims file, and supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Moreover, the Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Additionally, the Board notes that there is no medical evidence of record suggesting that the Veteran's neuropathy is aggravated by his service-connected diabetes mellitus, and neither the Veteran nor his representative have asserted aggravation as a theory of entitlement. Thus, a basis for granting service connection as secondary to or aggravated by the Veteran's service-connected diabetes mellitus has not been presented. The Board specifically acknowledges its consideration of the lay evidence of record when promulgating this decision, including the Veteran's belief that his neuropathies are related to his service-connected diabetes mellitus. However, while the Veteran is competent to report the onset of his neuropathic symptoms, including numbness, several years before he was diagnosed with diabetes mellitus, he is not medically qualified to relate his neuropathy to his diabetes mellitus. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons, such as the Veteran, are not medically qualified to prove a matter requiring medical expertise, including opinion regarding a diagnosis or medical causation). Furthermore, there are no medical opinions of record relating the Veteran's neuropathy to his service- connected diabetes mellitus. In sum, the evidence of record fails to relate the Veteran's neuropathy to service or a service-connected disability or provide a basis for granting service connection based on presumed herbicide exposure. Thus, the Board concludes that a basis for granting service connection for peripheral neuropathy of the upper and lower extremities has not been presented, and the Veteran's appeal is therefore denied. ORDER Service connection for peripheral neuropathy of the upper and lower extremities, to include as secondary to service- connected diabetes mellitus, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs