Citation Nr: 1313290 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 12-17 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities as secondary to service-connected Type II Diabetes Mellitus. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities as secondary to service-connected Type II Diabetes Mellitus. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active military service from April 1960 to January 1979. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, because of the Veteran's advanced age, the Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is an approximate balance of positive and negative evidence concerning whether the Veteran has upper and lower extremity peripheral neuropathy as a consequence or complication of his service-connected Type II Diabetes Mellitus. CONCLUSION OF LAW Therefore, resolving this reasonable doubt in his favor, his upper and lower extremity peripheral neuropathy is proximately due to, the result of, or aggravated by his service-connected Type II Diabetes Mellitus. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA, which require that VA apprise the Veteran of the type of information and evidence needed to substantiate his claim, including insofar as the evidence he is responsible for providing versus that VA will obtain on his behalf. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Here, though, since the Board is granting his claims, there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist obligations. This is because even were the Board to assume, for the sake of argument, there has not been this compliance, so worst case scenario, this still ultimately would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102 (2012). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing this error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim). There simply is no such possibility in this instance. II. Analysis The Veteran's Type II Diabetes Mellitus already has been determined to be presumptively related to his military service, as it is presumptively associated with his exposure to Agent Orange during the Vietnam era, so it is an adjudicated service-connected disability. He is additionally claiming entitlement to service connection for upper and lower extremity peripheral neuropathy as a complication of his Type II Diabetes Mellitus, so his additional claims for the upper and lower extremity peripheral neuropathy are predicated on the notion that it is secondarily related to his military service and, in particular, caused or being aggravated by his service-connected Type II Diabetes Mellitus. Because the medical and other evidence is about evenly balanced for and against the claims on this determinative issue of whether there is indeed this cause-and-effect correlation, the Board must resolve this reasonable doubt in the Veteran's favor and grant his claims for this additional (derivative) disability. 38 C.F.R. § 3.102. Direct service connection is granted for disability directly resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.304, 3.306. Service connection also is permissible on a secondary basis, however, which, as mentioned, is the specifically claimed basis of entitlement in this particular instance, for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999). Whether medical versus lay evidence can establish this required cause-and-effect correlation depends entirely on the specific disability at issue in terms of whether it is a "simple" condition readily capable of even lay comment concerning its diagnosis and/or etiology (e.g., a separated shoulder, broken arm, varicose veins, pes planus (flat feet), tinnitus (ringing in the ears), etc.) or whether instead it is a medically complex condition requiring a certain measure of training and expertise (e.g., a form of cancer, rheumatic fever, so on and so forth)). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); and Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In deciding claims, the Board must assess the credibility and weight of all the evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson,21 Vet. App. 303 (2007) (the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); accord Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, he prevails. See Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996) (an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an as likely as not proposition. Turning now to the facts of this particular case. The Veteran does not allege and the evidence does not otherwise show that he has peripheral neuropathy of any extremity, upper or lower, which is related directly or presumptively to his active military service. Instead, as mentioned, the entire focus of his claims is on the notion this upper and lower extremity peripheral neuropathy is secondary to his already service-connected Type II Diabetes Mellitus, so a complication of it. He served on active duty from April 1960 to January 1979. According to his service treatment records (STRs), during his service he never reported complaints related to any of his extremities and there was no consequent diagnosis of peripheral neuropathy. During examinations performed for various purposes and on various occasions from 1963 to 1978, examiners consistently noted normal clinical evaluations of his upper and lower extremities. He first reported having numbness and tingling in his lower extremities in 2008. Since then, it has been confirmed he has peripheral neuropathy of all of his extremities, both upper and lower, though none of his doctors directly related this condition to his active military service. In addition, although it is presumed he was exposed to Agent Orange based on his service in Vietnam during the Vietnam era, given that his peripheral neuropathy first manifested years after his discharge from service, so years after that exposure, it may not be considered acute or subacute neuropathy as defined by VA regulation. 38 C.F.R. §§ 3.307(a), 3.309(e). As such, both direct and presumptive service connection are not viable possibilities, even had they been claimed. There still remains the possibility, however, that his upper and lower extremity peripheral neuropathy is a secondary complication of his already determined to be service-connected Type II Diabetes Mellitus. And, concerning this additional possibility, the evidence is about evenly balanced for and against the claims. According to private treatment records in the file, a physician diagnosed the Veteran with diabetes in his late 40s or early 50s (15 to 20 years prior to 2008, so approximately nine or more years after his discharge from service). The RO subsequently granted the Veteran service connection for diabetes and that award remains in effect. There is no evidence of record indicating he reported any sort of difficulty with his extremities during the first two decades of his struggle with diabetes. In 2008, however, he reported significant numbness and tingling in his feet. During treatment visits in 2008, V. N. B., M.D., the Veteran's endocrinologist, noted diminished peripheral pulses at the dorsalis pedis, indicated the numbness and tingling were suggestive of diabetic neuropathy, later noted the Veteran's diabetic complications included some neuropathy, and resultantly advised him to wear diabetic shoes. Others who more recently have had occasion to examine or evaluate the Veteran noted no evidence of peripheral neuropathy. For instance, in July 2009, Dr. B noted a history of neuropathy as a complication of the Veteran's diabetes, but no neurological abnormalities on his examination of him. In addition, in March 2012, the Veteran had a VA compensation examination during which he reported that, approximately five years prior to the examination, he began noticing intermittent numbness in his hands and feet, primarily in his fingers and toes, but never underwent any diagnostic testing to confirm these symptoms were caused by peripheral neuropathy. The VA compensation examiner, a physician's assistant (PA), purportedly reviewed the claims file, noted that the claims file was unremarkable regarding the claimed condition, also noted no neurological abnormalities other than decreased reflexes in the biceps, triceps, brachioradialis and both knees, and concluded the Veteran does not have diabetic peripheral neuropathy of any extremity. In June 2012, Dr. B and D. R. M., M.D., the Veteran's treating physician, wrote letters in response in support of his claim, in which they reaffirmed he has diabetes-related peripheral neuropathy in his extremities. Dr. B indicated that he had been treating the Veteran for diabetes since 2008 and noted that he has associated symptoms of peripheral neuropathy affecting both his upper and lower extremities attributable to poorly-controlled diabetes mellitus. This doctor explained that the onset of the neuropathic symptoms followed the diabetes diagnosis and improved significantly, but failed to resolve completely with improved glycemic control. Dr. M added that the Veteran has some decreased sensation and loss of proprioception in his extremities, which are manifested by a slow, wide gait and poor balance and represent a consequence of peripheral neuropathy, diabetic type. He explained there are no insults that could account for this condition. In deciding claims, the Board must assess the credibility and weight to be attached to a medical opinion. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Provided an opinion includes adequate statements of reasons or bases, the Board may favor one over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The unfavorable evidence of record on the matter of whether the Veteran has peripheral neuropathy related to his service-connected diabetes includes private outpatient treatment records dated in 2009 and the report of the VA examination performed in July 2012. The latter has limited probative value, however, as it is based on an inaccurate finding, namely, that there is no evidence of neuropathy of record (which calls into question whether this VA examiner actually reviewed the claims file, as alleged, since this is clearly documented in the file), and, aside from this, fails to explain the significance of the diminished reflexes in the Veteran's upper and lower extremities found even on her personal examination of him. Conversely, the favorable evidence of record includes private outpatient treatment records dated in 2008 and the June 2012 supporting medical opinions. According to the Veteran, he has manifested ongoing symptoms of peripheral neuropathy, albeit intermittently, since 2008. The 2008 and 2009 treatment records from these doctors substantiate this assertion by documenting his complaints of numbness and tingling in his extremities in 2008, though not also in 2009. The physicians' opinions also substantiate this assertion by describing the Veteran's peripheral neuropathy as a condition that manifests intermittently, or more specifically, as one that developed and then improved, but that never resolved completely and still has not. There is nothing in the claims file suggesting the Board should question the Veteran's credibility or, for that matter, his private physicians' opinions at least partly relying on the history of his symptoms, etc., he recounted to them. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence). Moreover, in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran. Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. And here, the Board is not rejecting, rather accepting, the Veteran's statements and reported history as credible. Therefore, these doctors' opinions do no consequently decline in probative value even to the extent they relied on this reported history. Given the nature of the Veteran's peripheral neuropathy (not inconceivable that the condition was evident during some visits/examinations, but not others), the fact that Dr. B noted neuropathy, albeit informally, in 2008, and now confirms that it is affecting all extremities, the fact that Dr. M also confirms the same, and because the evidence is in relative equipoise, the Board resolves this reasonable doubt in the Veteran's favor and concludes that peripheral neuropathy of his upper and lower extremities is related to his service-connected Type II Diabetes Mellitus since as likely as not shown to be a residual complication. ORDER The claims of entitlement to service connection for upper and lower extremity peripheral neuropathy secondary to service-connected Type II Diabetes Mellitus are granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs