Citation Nr: 1321634	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  06-11 719	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a bilateral neurologic disability of the upper extremities, to include peripheral neuropathy, to include as secondary to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and C.W.


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel
INTRODUCTION

The Veteran served on active duty from December 1967 to January 1970, which includes service in the Republic of Vietnam.  He received the Purple Heart Medal.

This matter initially came before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In that decision, the RO denied entitlement to service connection for bilateral peripheral neuropathy of the upper extremities.

The Veteran testified before the undersigned at an August 2012 hearing at the RO (Travel Board hearing).  A transcript of that hearing has been associated with his claims folder.

In January 2013, the Board remanded this matter for further development.

The Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for hypertension, and the Board had remanded that issue in January 2013 for further development.  In May 2013, the Appeals Management Center granted service connection for hypertension, and thereby resolved the appeal as to that issue.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.


FINDING OF FACT

The Veteran's current bilateral peripheral neuropathy of the upper extremities is the result of his service-connected hypertension.



CONCLUSION OF LAW

The criteria for service connection for bilateral peripheral neuropathy of the upper extremities are met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

As the Board is granting the claim of service connection for a bilateral neurologic disability of the upper extremities, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310.  VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met.  38 C.F.R. § 3.310(b).  As service connection for bilateral peripheral neuropathy of the upper extremities is not being granted on the basis of aggravation by a service-connected disability, it is not necessary to determine which version of 38 C.F.R. § 3.310 is applicable in this case.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012) (including organic diseases of the nervous system) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides.  38 C.F.R. §§ 3.307, 3.309 (2012).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).
Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a).

Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, a January 2005 VA examination report includes a diagnosis of bilateral peripheral neuropathy of the upper extremities.  Thus, a current neurologic disability of the upper extremities has been demonstrated.

The only medical opinion as to whether the current bilateral neurologic disability of the upper extremities is related to the now service-connected hypertension is that of the physician assistant who conducted an April 2012 VA examination.  The examiner opined that the Veteran's claimed neuropathies were likely ("at least as [likely] as not" related to his prolonged history of polysubstance abuse, Hepatitis C, and uncontrolled hypertension.  

While the examiner who provided the April 2012 opinion did not provide any specific rationale, the examiner nonetheless concluded that based upon examination of the Veteran and a review of his medical records and reported history that his current peripheral neuropathy of the upper extremities was caused, at least in part, by his diagnosed hypertension.  There are no medical opinions contrary to that of the April 2012 opinion with respect to whether a relationship exists between the current peripheral neuropathy of the upper extremities and hypertension.
In sum, the preponderance of the evidence reflects that the Veteran has a current bilateral neurologic disability of the upper extremities, namely peripheral neuropathy, and that this disability was caused, at least in part, by his now service-connected hypertension.  In light of the April 2012 opinion and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for bilateral peripheral neuropathy of the upper extremities have been met.  Hence, service connection is granted.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.


ORDER

Entitlement to service connection for bilateral peripheral neuropathy of the upper extremities is granted.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs