Citation Nr: 1313286 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-35 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in January 2011. A copy of the transcript of this hearing has been associated with the Veteran's physical VA folder and has been reviewed. FINDING OF FACT There is at least an approximate balance of positive and negative evidence regarding whether the Veteran experiences symptoms of peripheral neuropathy involving the lower extremities, as secondary to service-connected diabetes mellitus. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Veteran, service connection for peripheral neuropathy of the lower extremities secondary to diabetes mellitus is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits, it is noted that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Board herein grants in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist as it pertains to this issue, such error was harmless and will not be discussed. The Board notes that following the June 2010 Statement of the Case, VA medical records, available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Veteran's electronic Virtual VA folder in December 2012. Under applicable law, the Board may not consider newly-submitted evidence in the first instance unless the claimant has waived initial consideration by the appropriate agency of original jurisdiction (here, the RO). See 38 C.F.R. §§ 19.37, 20.1304(c) (2012). Review of the record reveals that the Veteran was not issued a Supplemental Statement of the Case (SSOC) after VA medical records were added to Virtual No waiver was submitted along with this evidence. However because of the Board's favorable decision herein granting service connection for peripheral neuropathy of the lower extremities secondary to service-connected diabetes mellitus, there is no prejudice to the Veteran in adjudicating this claim without first remanding it so that the RO can consider the additional evidence. Law and Analysis The Veteran seeks service connection on a secondary basis for peripheral neuropathy of the lower extremities that he believes was caused, or made worse, by his service-connected diabetes mellitus. See VA Form 21-4138 received in June 2009 and January 2011 hearing transcript (Tr.) at pages 4-6. He does not otherwise contend that his peripheral neuropathy began in service, or is directly related to his military service, nor is this shown by the record to be the case. As the Veteran has limited his argument to principles of secondary service connection, the Board will proceed to consider this limited aspect of his appeal. In this regard, the Board notes that service connection is currently in effect for type II diabetes mellitus and peripheral neuropathy of both upper extremities associated with type II diabetes mellitus. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). With respect to whether the Veteran has a current disability, the Board recognizes that the medical evidence of record is conflicting as to whether the Veteran has peripheral neuropathy of the lower extremities. For instance, an April 2006 VA examination report is completely absent for any diagnosis of peripheral neuropathy involving the lower extremities. At that time the Veteran's complaints of tingling, numbness, and abnormal sensation were confined to the left upper extremity. Neurological examination of the lower extremities showed motor and sensory function were within normal limits. Reflexes revealed knee and ankle jerk were 3+ bilaterally. An October 2009 VA examination report similarly reveals that the Veteran was not diagnosed with peripheral neuropathy of the lower extremities at the time of the examination. During the examination, the Veteran reported experiencing a tingling sensation in his toes and that his feet were cold at night. He also reported leg pain, numbness, abnormal sensation, anesthesia, and weakness. The symptoms occur intermittently as often as 3-4 times a week and last 15 minutes. Neurological examination of the lower extremities showed motor and sensory function were within normal limits. Reflexes revealed knee and ankle jerk were 1+ bilaterally. The examiner concluded there was no peripheral nerve involvement evident during the examination. In other words there was no pathology to render a diagnosis. However, since the October 2009 VA examination, the Veteran has submitted a private physician's statement dated in February 2011 wherein it was noted that the Veteran had neurological complications that were directly due to diabetes mellitus including burning and tingling in his legs. Clinical findings at that time consisted of impaired pin prick sensation as well as decreased deep tendon reflexes in both lower extremities. The clinical assessment was polyneuropathy in diabetes. The Veteran was prescribed Lyrica for neuropathy. Indeed, the Physician's Desk Reference specifically notes that Lyrica is used to treat pain caused by nerve damage due to diabetes (diabetic neuropathy). In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that the evidence is in relative equipoise with respect to the issue of whether peripheral neuropathy was caused by diabetes mellitus. The Board acknowledges that in the October 2009 VA examination report the examiner determined that the Veteran did not have peripheral neuropathy of the lower extremities. The conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991); however, the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds the February 2011 diagnosis of polyneuropathy in diabetes persuasive, as it was supported by an objective clinical finding, albeit a very mild one, of impaired pin prick sensation. The fact that he was also prescribed a medication that is dedicated to treat symptoms of diabetic neuropathy is also telling. Moreover, the Veteran and his spouse have offered competent and credible statements regarding the nature his neurological symptoms of the lower extremities. They are both competent to testify as to observable symptoms such as burning, tingling, difficulty walking. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Further, while not outcome determinative, there is probative value to the Veteran's testimony as to the symptoms he experiences (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In light of the above, the Board finds that the Veteran has a current diagnosis of peripheral neuropathy of the lower extremities. The only remaining inquiry is whether the Veteran's peripheral neuropathy of the lower extremities is proximately due to his service-connected diabetes mellitus. In reviewing the medical evidence of record, the Board observes that there is no specific medical opinion, in terms of probability, as to whether the Veteran's peripheral neuropathy of the lower extremities is related to his service-connected diabetes mellitus. The February 2011 physician's assessment indicates that the Veteran's neurological complications, currently diagnosed as peripheral neuropathy, are directly due to diabetes mellitus. No rationale is given for this finding, which is also at odds with earlier VA records. However, given the Veteran's competent and credible statements with respect to his symptoms and that his peripheral neuropathy of the lower extremities has been medically attributed to his diabetes mellitus, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise as to whether the peripheral neuropathy of the lower extremities is related to his service-connected diabetes mellitus. The Board finds no adequate basis to reject the competent lay testimony and medical evidence of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). While the evidence in this case is not unequivocal, it has nonetheless placed the record in relative equipoise. The Board resolves the benefit of the doubt in the Veteran's favor and finds that the requirements for secondary service connection for peripheral neuropathy of the lower extremities are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for peripheral neuropathy of the lower extremities secondary to service-connected diabetes mellitus is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs