Citation Nr: 1320920 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 11-07 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for peripheral neuropathy of the upper extremities, claimed as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Teena Petro, Agent ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1970 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Peripheral neuropathy of the upper extremities was not manifested in service or for many years thereafter; and is not shown to be related to the Veteran's service or to have been caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW Service connection for peripheral neuropathy of the upper extremities, including as secondary to service-connected diabetes mellitus, is not warranted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An August 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in September 2009 and February 2011; the Board finds those examinations adequate for rating purposes; that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 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. See Allen v. Brown, 7 Vet. App. 439 (1995). Furthermore, because the Veteran served in Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicides (Agent Orange) in service. If a Veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption includes acute and subacute peripheral neuropathy. Note 2 to 38 C.F.R. § 3.309(e) defines acute and subacute peripheral neuropathy as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset." When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file and in the "Virtual VA" electronic records storage system. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. The Veteran contends that he developed peripheral neuropathy of his upper extremities as secondary to his service-connected type II diabetes mellitus. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of peripheral neuropathy. On September 1971service separation examination, his upper extremities were normal on clinical evaluation. In an associated report of medical history, he specifically denied neuritis. Private postservice treatment records note peripheral neuropathy was diagnosed in 2006; it was unspecified whether this diagnosis refers to the upper or lower extremities. Peripheral neuropathy of both lower extremities is service-connected. Medical records considered in connection with the Veteran's claim for Social Security Administration (SSA) disability benefits show notations of numbness and neuropathies of the lower extremities. There is no mention of upper extremity neuropathy. On April and July 2004 medical evaluations (for SSA purposes), it was noted that motor strength was 5/5 in all four extremities, muscle strength and tone were normal, and there were no atrophy or muscle spasms. Deep tendon reflexes were normal and symmetric, sensory was intact, grip strength was 5/5 in both hands and fine finger skills were normal. On September 2009 VA examination, the Veteran denied neurologic symptoms, such as loss of strength, tingling or numbness of his arms and hands. Neurologic examination of the upper extremities was normal, with no evidence of neuritis, neuralgia, or paralysis. A radiology report associated with the report of this examination notes a diagnosis of peripheral neuropathy; it was unspecified whether the reference was to the lower or upper extremities. In December 2009, the Veteran stated that there were errors in the September 2009 examination report; specifically, he indicated that he had reported symptoms such as loss of strength, tingling, and numbness of his arms and hands. An addendum to the examination report was provided in February 2009 [sic]; however, this addendum only noted that findings of bilateral lower extremity peripheral neuropathy were omitted. March 2010 electromyography (EMG) revealed mild neuropathy with mild bilateral carpal tunnel syndrome. On February 2011 VA examination, the Veteran reported "funny feelings in both hand[s] over on[e] year ago." He described mild tingling in the fingers and hands with mild burning on occasion. He stated that he does not have "pins and needle feeling." A sensory examination was normal for the upper extremities and a detailed motor examination revealed active movement against full resistance. A February 2011 EMG study performed in conjunction with the examination showed bilateral median sensory nerve neuropathy. The examiner also reviewed the March 2010 EMG report and noted that it indicated the left ulnar motor nerve had a significantly low ampliture; however, she stated that this nerve was well within the normal range on present examination. Bilateral median peripheral neuropathies (subacute carpal tunnel syndrome) were diagnosed. The examiner opined that this disability was less likely than not caused by or a result of service-connected diabetes mellitus. The examiner explained that subacute carpal tunnel syndrome is not related to the neuropathy of diabetes, as only the median nerve is involved with carpal tunnel and diabetes does not single out one nerve in an extremity and then not affect the others. The examiner also stated that the latency of the Veteran's current disability indicates an entrapment neuropathy and not the polyneuropathies of diabetes. She noted the left ulnar low applitude result, which was normal on EMG, and also that the Veteran's service records are silent for hand injuries or treatment. As peripheral neuropathy of the upper extremities was not manifested in service (and the Veteran does not allege otherwise), service connection for such disability on the basis that it became manifest in service, and persisted, is not warranted. Although there is evidence that the Veteran served in Vietnam and thus is presumed to have been exposed to herbicides, his peripheral neuropathy of the upper extremities does not meet the regulatory description of "acute or subacute," and therefore is not among the listed diseases enumerated under 38 C.F.R. § 3.309(e). Specifically, it did not appear within weeks or months of his exposure to Agent Orange, (and resolve within two years). Consequently, it does not fall within the purview of 38 U.S.C.A. § 1116, and service connection for neuropathy of the upper extremities on a presumptive basis, as due to Agent Orange exposure in service is not warranted. Furthermore, the Veteran has presented no evidence that shows or suggests that his peripheral neuropathy of the upper extremities is directly related to service/exposure to herbicides therein. See Combee v. Brown 34 F.3d 1039, 1042 (Fed. Cir.1994). The Veteran's theory of entitlement to the benefit sought is one of secondary service connection, i.e., that his peripheral neuropathy of the upper extremities was caused or aggravated by his service-connected diabetes mellitus. The threshold requirements that must be met to substantiate a claim of secondary service connection are: (1) Competent evidence of a current (claimed) disability. This requirement is met as bilateral median peripheral neuropathies (subacute carpal tunnel syndrome) is diagnosed. (2) Evidence of a service-connected disability. This requirement is also met, as the Veteran's diabetes mellitus is service-connected. (3) Competent evidence of a nexus between the disability for which secondary service connection is claimed and the service-connected disability. See 38 C.F.R. § 3.310. The competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's upper extremity peripheral neuropathy and his diabetes consists of the February 2011 VA examiner's opinion. The opinion, with citation to supporting factual data (i.e., March 2010 and February 2011 EMG findings), indicates that diabetes is unrelated to carpal tunnel syndrome, as diabetes does not single out one nerve in an extremity and not affect the others. The examiner further stated that the latency of the Veteran's current disability indicates an entrapment neuropathy and not the polyneuropathies of diabetes. This opinion is by a physician, who expressed familiarity with the factual background, and the opinion included adequate explanation of rationale. The opinion is probative evidence in this matter; because there is no competent evidence to the contrary, it is persuasive. The Board notes the Veteran's own statements relating his peripheral neuropathy of the upper extremities to his service-connected diabetes mellitus; however, he is a layperson. Whether a disability such as the service-connected diabetes mellitus is an etiological factor for development of peripheral neuropathy is a medical question beyond the realm of lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent (medical opinion/textual) evidence in support of his theory of entitlement. Consequently, his opinion in this matter is not competent evidence. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule does not apply; the claim must be denied. ORDER The appeal seeking service connection for peripheral neuropathy of the upper extremities, including as secondary to service-connected diabetes mellitus type II, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs