Citation Nr: 1014095 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 06-36 412 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities, claimed as secondary to the service connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, claimed as secondary to the service connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Daniels, Law Clerk INTRODUCTION The Veteran served on active duty from October 1967 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the RO. In a January 2010 letter, the Veteran cancelled his hearing before a Veterans Law Judge that had been scheduled in response to his request. FINDINGS OF FACT 1. The currently demonstrated sensory neuropathy of the upper extremities is shown as likely as not to be due to the service-connected diabetes mellitus. 2. The currently demonstrated sensory neuropathy of the lower extremities is shown as likely as not to be due to the service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by sensory neuropathy of the upper extremities is proximately due to or the result of a service connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by sensory neuropathy of the lower extremities is proximately due to or the result of the service connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, the degree of disability, and the effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of the VCAA notice is harmless if the defect is not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a December 2005 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for compensation based upon an additional disability that was caused or aggravated by a service-connected disability, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of or submit any further evidence that pertained to the claim. Furthermore, in a March 2006 letter, the Veteran was advised of how disability ratings and effective dates were assigned. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post service private and VA treatment records, and the Veteran's statements. The Veteran has been specifically notified of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process and responded to VA's requests for information. Any defect in notice is not shown to have disrupted the essential fairness of the adjudication. Id. To the extent that the action taken hereinbelow is favorable to the Veteran, there is no prejudice to the Veteran. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran asserts that his peripheral neuropathy is caused by his service connected diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in the line of duty or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. The Board notes that the peripheral neuropathy, bilateral upper and lower extremities was not diagnosed during the Veteran's active service nor was it noted on any medical treatment record until December 2005, eighteen years after separation from service. Hence, the peripheral neuropathy of both upper and lower extremities is not shown to have been manifested during active service or to be causally related to any event of incident of his active service. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, 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 current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187-89 (1993). In the present case, the service-connected disability consists of diabetes mellitus. Moreover, he has a diagnosis of very mild sensory neuropathy, primarily in the lower extremities. The Veteran's treating doctor opined that he suffered from mild diabetic neuropathy causing sensory symptoms as shown by accompanying medical studies. While these testing results indicated that mild sensory neuropathy was unlikely related to the history of diabetes mellitus, the basis for this statement is not clear from the record. Although the Veteran may feel that his peripheral neuropathy, bilateral upper and lower extremities is caused by his service-connected diabetes, he is not, as noted above, shown to have the requisite medical training or credentials needed to render a competent opinion on this matter. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Board finds the medical evidence to be in relative equipoise in this case by showing the current sensory neuropathy of the upper and lower extremities as likely as not is due to the only generalized disease process identified in the record. In resolving all reasonable doubt in the Veteran's favor, service connection for sensory neuropathy of the upper and lower extremities is warranted. ORDER Service connection for sensory neuropathy of the upper extremities is granted. Service connection for sensory neuropathy of the lower extremities is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs