Citation Nr: 1228544 Decision Date: 08/20/12 Archive Date: 08/30/12 DOCKET NO. 11-12 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to September 1969. This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied the Veteran's claim of entitlement to service connection for peripheral neuropathy of the right and left lower extremities, each to include as secondary to service-connected diabetes mellitus. In June 2012, the Veteran and a friend testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. At the time of the Board hearing, the VLJ agreed to hold the record open for 30 days to allow the Veteran an opportunity to supplement the record with additional evidence. To date, no additional evidence has been submitted. However, as the decision herein represents a complete grant of the benefits sought, there is no prejudice to the Veteran by issuing a decision without further consideration of whether there exists any outstanding relevant evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2011). FINDING OF FACT The probative evidence of record demonstrates that the Veteran's peripheral neuropathy of the bilateral lower extremities is causally related to his service-connected diabetes mellitus. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant In this decision, the Board grants service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his peripheral neuropathy of the bilateral lower extremities is secondary to his service-connected diabetes mellitus. It is undisputed that the Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities, and is service-connected for diabetes mellitus. At the time of his October 2009 VA examination, he was diagnosed with mild peripheral neuropathy of the bilateral lower extremities, and service connection for diabetes mellitus was granted by an October 2009 rating decision. Thus, the remaining issue is whether the Veteran's peripheral neuropathy of the bilateral lower extremities is secondary to, i.e., was caused or aggravated by, his service-connected diabetes mellitus. On this issue, there are four opinions of record. Private treatment records dated in September 2008 indicate that the Veteran complained of tingling toes and pain. His social history includes a notation that he did not drink. He was diagnosed with diabetes mellitus II neuropathy, uncontrolled. In an August 2009 statement to his Senator, the Veteran denied current alcoholism. He reported that he did not drink and had not since his time in service. He reported that none of his medical records include physical signs and symptoms of alcoholism, and that he has never had a traffic citation due to driving under the influence. VA treatment records dated in August 2009 indicate that the Veteran reported a history of consuming alcohol several times each year. On VA consultation for an unrelated disability in July 2010, the Veteran denied a history of substance abuse. On VA consultation for an unrelated disability in September 2010, when asked how often he had a drink containing alcohol in the past year, the Veteran responded "never." Private treatment records dated during the entire appellate period indicate that the Veteran denied a history of alcohol use on no fewer than 15 occasions of treatment. On VA examination in October 2009, the examiner reported that the Veteran was diagnosed with diabetes mellitus a few months prior. The examiner reported that when the Veteran was questioned about his alcohol use history, he stated that he consumed anywhere from 4-5 beers each day, with increased amounts consumed on weekends secondary to leisure activities such as boating. The Veteran reported that he stopped his alcohol consumption in 2002. The Veteran complained of paresthesias and dysesthesias of the feet, on a constant basis, without precipitating or alleviating factors, from one year prior. The Veteran was diagnosed with mild peripheral neuropathy of the bilateral lower extremities. The examiner concluded that it was less likely that the Veteran's disability was secondary to his service-connected diabetes mellitus, and reasoned that the Veteran was diagnosed with diabetes mellitus within the past year, not allowing enough time for progression of neuropathy as a secondary condition. The examiner also concluded that the Veteran's disability was secondary to his history of excessive alcohol consumption, per his own report. Private treatment records dated in June 2010 indicate that the Veteran's private physician reported that the Veteran had been diagnosed with diabetes mellitus in 2007. The physician reported that the VA had considered the Veteran's neuropathy to be due to alcoholism and reported that the Veteran had not used alcohol since service, in 1966 or 1967. The physician again diagnosed the Veteran with neuropathy in diabetes. On VA examination in September 2010, conducted to evaluate the severity of the Veteran's service-connected diabetes mellitus and its complications, the Veteran again reported his numbness and tingling of the feet, made worse with prolonged walking and standing. The examiner cited the prior VA opinion of record, that the Veteran's peripheral neuropathy of the bilateral lower extremities was less likely related to his service-connected diabetes mellitus. The examiner cited the prior VA examiner's reasoning provided for the opinion and reported that he concurred with the opinion. The Veteran underwent additional VA examination in March 2011, for the purpose of conducting electromyography (EMG) testing. The Veteran again reported his symptoms. The examiner reported that EMG testing revealed severe peripheral sensory motor neuropathy, however, it is unclear to which extremity or extremities such refers. The examiner cited the Veteran's prior medical history, specifically including the prior VA opinions of record as to the Veteran's alcohol use. The examiner concluded that as the onset of peripheral neuropathy symptoms was several years before diabetes mellitus was diagnosed, in addition to the previously diagnosed alcohol history, his disability was at least as likely as not related to his alcohol consumption. At the time of the Veteran's June 2012 Board hearing, he asserted that he answered VA's questions as to his alcohol use truthfully and reported that he didn't drink, but that drinking was necessary during service in the Republic of Vietnam. He reported that other than his time in service, he did not drink because he played sports. He asserted that he was never hospitalized for any alcohol problems, and that he never was cited for driving under the influence. He reported that VA doctors had attributed his peripheral neuropathy to his diabetes mellitus. He reiterated that he did not have any problems with alcohol after he left the service, and that even during service, he was not an alcoholic. At the time of the Veteran's June 2012 Board hearing, his friend asserted that he had known the Veteran for approximately 4 years and that he had not observed the Veteran consume an alcoholic beverage. It is clear that the VA opinions of record are each based upon the original October 2009 notation as to the Veteran's alcohol use. No VA examiner has considered the Veteran's subsequent denial of alcohol use. In this regard, the Veteran is competent to report his history of alcohol use. Further, the Board finds that he is credible. Dalton, 21 Vet. App. 23, at 38; Caluza, 7 Vet. App. 498, at 511, aff'd per curiam, 78 F.3d 604. While it remains unclear why the Veteran reported his alcohol history as he did on VA examination in October 2009, it remains possible that the examiner misunderstood the Veteran's response and recorded his report of in-service use as current use. It remains unclear why the Veteran reported that he used alcohol several times each year during VA consultation in August 2009. However, it remains that he denied a history of alcohol use on every other instance of VA treatment. He denied a history of alcohol use during each instance of private treatment dated during the appellate period. He has offered sworn testimony to the Board that he stopped drinking when he separated from service. His friend has sworn to the Board that he has not seen the Veteran consume alcohol. Based on the forgoing, the Board finds that there is competent and credible, and thus probative, evidence, that the Veteran's alcohol history, cited on VA examination in October 2009, was incorrectly recorded. Madden, 125 F.3d 1477, at 1481, cert. denied, 523 U.S. 1046; Wensch, 15 Vet. App. 362, at 367. As the Board has found that the October 2009 notation in the VA examination report as to the Veteran's alcohol use was incorrectly recorded, or in essence, refuted by the Veteran's competent and credible testimony, the VA opinions based on such, rendered in October 2009, September 2010, and March 2011, are not probative evidence in the present appeal. In this regard, while the VA examiner, in October 2009, reported that the Veteran had been diagnosed with diabetes mellitus a few months prior, the Veteran's private physician, his treating physician, reported that he had been diagnosed in 2007. The VA opinions dated in October 2009, September 2010, and March 2011, are each based on the premise that the Veteran did not develop diabetes mellitus until 2009. The opinions were thus based on inaccurate factual premises and thus of no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinions have no probative value when they are based on an inaccurate factual predicate, such as a self-reported and inaccurate history). As the VA opinions dated in October 2009, September 2010, and March 2011, are not probative evidence in the present appeal, only the June 2010 opinion of the Veteran's private physician remains. While there is no evidence that the physician had the opportunity to review the Veteran's claims file, such is not required. It is clear that the physician had treated the Veteran for a long time and was apprised of the Veteran's onset of both his diabetes mellitus and his peripheral neuropathy of the bilateral lower extremities, as well as the correct history of alcohol use, such limited to his time in service. See id. at 303-04. Further, while the physician did not specifically include a rationale for his opinion, it is clear by a reading of the Veteran's complete private treatment records that the physician based his opinion on the circumstances of the Veteran's complaints and diagnoses. Specifically, the Veteran was being treated, by the opining physician, for uncontrolled diabetes mellitus and demonstrated neurological abnormalities related to the lower extremities. Thus, the private opinion rendered in June 2010 remains the only probative medical opinion of record and such opinion supports the Veteran's claim. Based on the foregoing, giving the Veteran the benefit of the doubt, as is required by law, the Board concludes that service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, is warranted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs