Citation Nr: 1314122 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-19 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to service connection for a right upper extremity nerve disability, to include peripheral neuropathy. 2. Entitlement to service connection for a right lower extremity nerve disability, to include peripheral neuropathy. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active military duty from October 1968 to October 1970. These issues come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating action of the Department of Veterans Affairs Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied claims for service connection for peripheral neuropathy of the feet and of the hands, including as secondary to herbicide and service-connected diabetes mellitus. In December 2010, the Board remanded this case. In October 2012, the Board granted entitlement to service connection for a left upper and lower extremity nerve disability, to include peripheral neuropathy and sensory loss. The remaining issues were again remanded for additional development. FINDINGS OF FACT 3. Resolving all doubt in the Veteran's favor, right upper extremity nerve disability is proximately due to the service-connected diabetes mellitus. 2. Resolving all doubt in the Veteran's favor, right lower extremity nerve disability is proximately due to the service-connected diabetes mellitus. CONCLUSION OF LAW 1. Right upper extremity nerve disability is secondary to the service-connected diabetes mellitus. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.310 (2012). 2. Right lower extremity nerve disability is secondary to the service-connected diabetes mellitus. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for right upper and lower extremity nerve disability. The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting his service connection claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2011), would serve no useful purpose. Service connection - laws and regulations Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. The purpose of the regulation was to apply the Court's ruling in Allen. The regulation specifies that VA will not concede that a nonservice-connected disability was aggravated by a service-connected disability unless the baseline level of severity of the nonservice-connected disability is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disability. 38 C.F.R. § 3.310 (2012). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background The Veteran contends that he has peripheral neuropathy of the right upper and lower extremities secondary to diabetes mellitus. The Board notes that the Veteran has been service-connected for diabetes mellitus, type II at a 20 percent disability rating since July 2001, and for a stroke associated with his service-connected diabetes mellitus, type II at a 10 percent disability rating since August 2008. In an October 2012 decision, the Board found that left upper and lower extremity sensory loss was etiologically related to service-connected diabetes mellitus and stroke residuals, and granted entitlement to service connection for these disabilities. Service treatment records do not reflect any findings of peripheral neuropathy. An August 1970 separation examination was negative for extremity problems. Private medical records show that the Veteran complained of right arm pain in January 1999, and was diagnosed with tendonitis. He was diagnosed with diabetes mellitus in April 1999. VA medical records show that an April 2004 diabetes foot examination reflected a normal right foot. In October 2004, the Veteran reported pain in both arms for one month, with associated neck pain. There was no numbness in his arms, but he had some burning in his neck. A March 2005 magnetic resonance imaging study (MRI) of the Veteran's neck revealed disc bulging and no narrowing of canal or compression of the spinal cord. April 2005 and February 2006 diabetes visual examinations of the foot were normal. In December 2007, the Veteran reported pain and swelling in his hands. X-rays did not reveal any abnormality or significant arthritis. He reported continuing hand pain, swelling and redness in his hands in January 2008. He also reported intermittent throbbing, shooting pains, and burning-stinging sensations. A February 2008 private medical record shows that the Veteran's motor strength to all extremities was strong and equal, and he had no paresthesias. In March 2008, a VA examiner noted that the Veteran had worked as a meat cutter for forty years, and that there was some enlargement of his knuckles likely due to cold injury. On examination, his lower extremities were normal, but he did have some swelling of the proximal interphalangeal (PIP) joints. An August 2008 VA neurological examination report shows that the Veteran was diagnosed with diabetes in the late 1990s. The examiner found that, based on his symptoms, there appeared to be peripheral neuropathy involving the hands, but there were also findings of cold injury that made a diagnosis unclear. Additionally, the examiner noted that there was mild sensory loss in the feet that was possibly related to diabetes; however, nerve conduction tests were normal and the examiner concluded that there was no electrophysiological evidence of a large fiber polyneuropathy as would be expected to be present with diabetes. Therefore the examiner was not able to make a diagnosis of diabetic neuropathy. A January 2011 examination report shows that the Veteran was diagnosed with diabetes in 1998, and that he had normal lower extremity sensations when he began treatment in May 2001. The examiner noted that diabetic neuropathy was typically distal and symmetrical, and that electromyography (EMG) showed no evidence of large fiber polyneuropathy, which was typical for diabetes. However, the examiner also noted that earlier examination of the Veteran showed impaired vibration sensation and absent ankle jerks which would be due to large fiber polyneuropathy. Therefore, he found that there was conflicting evidence that he had polyneuropathy. Other risk factors for polyneuropathy included alcohol abuse and hypothyroidism. The examiner acknowledged that the Veteran had no evidence of any kind of neuropathy in service or for many years thereafter, making it unlikely that service caused or contributed to his upper and lower extremity disabilities. The examiner opined that it was as likely as not that he had mild incomplete sensory loss due to alcohol or diabetes and/or hypothyroidism, but that the relative contributions of each could not determines without resort to speculation. A November 2012 VA examination report noted that the Veteran's service treatment records did not reflect any diagnosis, treatment or symptoms of carpal tunnel syndrome, stroke, or peripheral neuropathy. The examiner opined that the Veteran did not have diabetic peripheral neuropathy. The Veteran indicated that he had pain in the soles of his feet, and that he was unable to walk, but that he had walked from the waiting room back to the examination room without difficulty. The examiner noted that the Veteran had a normal gait and station with good heel/toe/tandem walk. Cranial nerves II-XII were normal except decreased temperature sense in the left V2, right V3. EMG tests of the right upper and lower extremities had abnormal results. The examiner found that the Veteran did not have any symptoms attributable to diabetic peripheral neuropathy in his upper or lower right extremities and that an August 2008 EMG showed no electrophysiological evidence of a larger fiber peripheral neuropathy. The examiner found that, on examination, the Veteran had mild incomplete sensory loss in the hands, right lower extremity, and in the face on the left V2 and right V3 distributions. This pattern of loss was not evident in the service, or on his prior examinations. Hence it was not service related or exacerbated by service due to the intervening time between service and now. The examiner added that diabetic neuropathy was typically distal symmetrical polyneuropathy and that the current pattern of sensory loss was not consistent with this diagnosis. Nerve conduction tests revealed some mild slowing in conduction velocity, possibly due to diabetes, hypothyroidism, or cold residuals. However, the examiner could only speculate to what degree, if any, diabetes might aggravate whatever the cause of his unusual pattern of sensory loss. There was no evidence of any kind of neuropathy in service or for many years thereafter. The examiner found that this made it unlikely that service caused or contributed to his upper and lower sensory loss. The examiner noted that the Veteran had no evidence of carpal tunnel syndrome (CTS), and that compressive neuropathy, such as CTS, was caused by compression of a peripheral nerve by some structure-in this case, the median nerve by other contents of the carpal tunnel in the wrist. Typically, once compression is removed, nerve function returns to normal. The examiner noted that diabetes causes vascular disease and affects the vasa nervosa vasa nervorum making the nerve more susceptible to compression. Diabetes does not cause the compression. The examiner noted that he could only speculate as to whether the Veteran would have symptoms of compression neuropathy in the absence of diabetes, or to what degree diabetes might increase those symptoms if he still had CTS. On prior examination his sensory loss suggested a lacunar infarct with hemisensory loss. This was no longer evident on examination and the pattern was not consistent with other ischemic lesion, making it unlikely to be vascular and in turn was unrelated to diabetes. MRI of the brain showed some microvascular ischemic changes but these did not correlate with his findings and were hence unrelated. Age, diabetes, hypertension and dislipidemia are all risk factors for microvascular ischemic changes on MRI. Analysis Clearly the most probative evidence in this respect is the November 2012 VA examination report. The examiner gave a complete neurological work-up and addressed, at length, the nature and etiology of the right upper and lower extremity loss. After examination of the Veteran and review of the medical evidence in the record, the VA examiner concluded that the Veteran did not exhibit diabetic peripheral neuropathy. He noted that the type of peripheral neuropathy associated with diabetes mellitus was large fiber polyneuropathy. While the examiner found that the symptoms endorsed by the Veteran raised the possibility of this type of peripheral neuropathy, it was not found on EMG or nerve conduction studies. The examiner did note that the Veteran had some mild sensory loss in his right upper and lower extremities; however, he could not provide a link between this loss and his diabetes mellitus, beyond a mere possibility or speculation. He did add however, that diabetes, along with a number of other possible factors, could have contributed to the onset of this disability. With regard to compressive neuropathy (which the Veteran did not currently have either) diabetes mellitus does not cause the disability but could make the nerve more susceptible to compression. On prior examination, the pattern was suggestive of a lacunar infarct with hemisensory loss. This was not the case on the current examination (though diabetes mellitus was a risk factor for this also). In essence, the examiner was unable to eliminate diabetes mellitus as a causal factor in the peripheral neuropathy exhibited by the Veteran and it is evident from the discussion that diabetes mellitus was suspected as a risk, cause or aggravating factor regardless of the exact etiology of the peripheral neuropathy. Accordingly, resolving all doubt in the Veteran's favor, the Board finds that the right upper and lower extremity peripheral neuropathy is secondary to the service-connected diabetes mellitus. ORDER Service connection for a right upper extremity nerve disability, to include peripheral neuropathy, is allowed. Service connection for a right lower extremity nerve disability, to include peripheral neuropathy, is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs