Citation Nr: 1312621 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 07-05 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a neurological impairment of the right upper extremity, however diagnosed to include peripheral neuropathy and right carpal tunnel syndrome, to include on a secondary basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In an April 2012 decision, the Board denied service connection for peripheral neuropathy of the bilateral lower extremities, and peripheral neuropathy of the left upper extremity, with each to include as a result of in-service herbicide exposure and as secondary to the service-connected diabetes mellitus type II. Also, the Board remanded the issues of service connection for peripheral neuropathy of the right upper extremity and erectile dysfunction, with each to include as a result of in-service herbicide exposure and as secondary to the service-connected diabetes mellitus type II. In November 2012, the Appeals Management Center (AMC) issued a rating decision granting the Veteran's claim of entitlement to service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus type II. Since the grant of service connection for this condition fully resolved the appeal of that issue, the issue of service connection for erectile dysfunction is longer a part of the current appeal. Based on review of the records and in light of the most recent opinions it indicates the Veteran has a neurological impairment of the right upper extremity to include carpal tunnel syndrome. Therefore, the Board has expanded this issued as characterized above. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that the Board must consider the scope of a claim as encompassing all disabilities that may be reasonably described by the claimant's description of the claim, reported symptoms, and the other information of record). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, the neurological impairment of the right upper extremity, however diagnosed to include peripheral neuropathy and right carpal tunnel syndrome, is proximately related to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for neurological impairment of the right upper extremity, however diagnosed to include peripheral neuropathy and right carpal tunnel syndrome as secondary to service-connected diabetes mellitus are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for service connection for a neurological impairment of the right upper extremity, however diagnosed to include peripheral neuropathy and right carpal tunnel syndrome as secondary to service-connected diabetes mellitus disability has been granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial II. Merits of the Claim The Veteran contends that his neurological impairment of the right upper extremity is related to his service with the United States Army from February 1970 to October 1971. He also contends that these disorders are secondary to his service-connected diabetes mellitus, type II. Governing Law and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence on in-service incurrence 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. 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of evidentiary showing of continuity of symptomatology. If the condition noted during service (or within the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Certain chronic diseases, such as other organic diseases of the nervous system, may be presumed to have been incurred in service if manifested to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102 (2012). Factual Background and Legal Analysis In August 2004, the Veteran submitted a claim for service connection for diabetes. In support of this claim, he was afforded a VA examination in July 2005, which reflects that the Veteran was first diagnosed with diabetes in October 2003. The VA examiner also confirmed the diagnosis of diabetes mellitus, type II. By an October 2005 rating decision, the RO granted service connection for diabetes mellitus, type II, effective from June 9, 2004. The grant of service connection for this disability was based on the Veteran's presumed exposure to herbicides during his military service. The Veteran's service treatment records reveal no complaints, treatment, or diagnosis of peripheral neuropathy or carpal tunnel syndrome of the right upper extremity. In March 2006 the Veteran submitted, in relevant part, a claim for service connection for neurological impairment of the right upper extremity to include as secondary to the service-connected diabetes mellitus type II. A July 2007 NCVs (nerve conduction velocity tests) revealed prolonged median distal latencies. No additional abnormalities were noted. A needle examination of the right upper extremity showed no spontaneous activities. The motor unit potential was normal. The Veteran was diagnosed with bilateral median nerve entrapment at the wrists, which was more commonly known as carpal tunnel syndrome. The Veteran was afforded a VA neurological examination in December 2010. During this examination, the examiner detected no motor or sensory findings of polyneuropathy. The examiner acknowledged that while the NCVs in 2007 showed bilateral carpal tunnel syndrome the Veteran had sensory loss of ulnar neuropathies for which he underwent ulnar transposition. NCVs at that time indicated no finding of diabetic neuropathy. The examiner noted that a repeat study and screening lab was needed. A January 2011 addendum to the December 2010 report shows that EMG (electromyography) was poorly tolerated and incomplete. Only a right median MAP was obtained. Distal latency was prolonged and conduction velocity was mildly slowed. The examiner was unable to make a diagnosis of polyneuropathy. The electro-physiology indicated a possible right median neuropathy. The examiner noted that this finding could be due to diabetes or other causes, but he was unable to make a determination as to the cause without resorting to speculation. In June 2012, a supplemental VA medical opinion was obtained. After review of the evidence of record, the examiner opined that the "claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner also opined that the "claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The examiner explained in his rationale, "[t]here is no evidence of a median neuropathy in the [service medical records]. [Electromyography] showed a distal medial latency delay on the right side in [January 2011] and bilaterally in [July 2007]. On my examination in December 2010 he had no motor or sensory deficits referable to either median nerve." However, the examiner further stated: Electrophysiology is the gold standard in diagnosis of [carpal tunnel syndrome (CTS)]. As such he had CTS in [July 2007]. Compressive neuropathy (in this case CTS) is caused by compression of a peripheral nerve by some structure (in this case the median nerve by other carpal tunnel contents). It is presumed caused by compression of vascular structures (the vasa nervorum) which supply the peripheral nerve, impairing metabolism of the compressed segment, and leading to a focal conduction block. In extreme case[s], frank infarction of the segment can occur. Typically once compression is removed, nerve function returns to normal (the phenomenon of one's arm falling asleep when one lies on it and recovers once position is changed). Diabetes causes vascular disease and affects the vasa nervorum making the nerve more susceptible to compression. However, diabetes does not cause the compression. I can only speculate if the patient would have symptoms of compression neuropathy in the absence of diabetes, or to what degree diabetes might increase those symptoms. Given the above evidence of record, the Board finds that service connection for a neurological impairment of the right upper extremity is warranted. The Board notes that while a clear diagnosis of peripheral neuropathy of the right upper extremity has not been established, the Veteran does have a current neurological impairment of the right upper extremity. Here, a diagnosis of right carpal tunnel syndrome was first shown in July 2007, and in January 2011 a possible right median neuropathy was noted which may be due to diabetes or other causes (the cause was speculative). The Board recognizes that the June 2012 examiner opined that the Veteran's neurological impairment of the right upper extremity was less likely as not due to an incident during service or proximately due to or the result of the Veteran's service connected condition. However, despite the examiner's negative nexus opinions, the rationale explains that while the Veteran's service connected diabetes mellitus is not the cause of the compression itself, it does make the peripheral nerve more susceptible to (or it may increase) the symptoms of compression neuropathy. As such, after careful review of the June 2012 rationale and the evidence of the record, the Board will resolve all reasonable doubt in the Veteran's favor. The Board finds that the Veteran's neurological impairment of the right upper extremity, however diagnosed to include peripheral neuropathy and right carpal tunnel syndrome cannot be reasonably disassociated from his service connected diabetes mellitus. Accordingly, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for neurological impairment of the right upper extremity as secondary to his service connected diabetes mellitus. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to service connection for a neurological impairment of the right upper extremity, however diagnosed to include peripheral neuropathy and right carpal tunnel syndrome, to include on a secondary basis, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs