Citation Nr: 1323353 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-30 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1967, and April 1970 to May 1974, including honorable service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the issues on appeal. The Veteran testified Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2013. A transcript of the hearing is associated with the claims file. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's peripheral neuropathy of the right upper extremity and his service-connected diabetes mellitus. 2. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's peripheral neuropathy of the left upper extremity and his service-connected diabetes mellitus. 3. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's peripheral neuropathy of the right lower extremity and his service-connected diabetes mellitus. 4. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's peripheral neuropathy of the left lower extremity and his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, his peripheral neuropathy of the right upper extremity was caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. Resolving all doubt in the Veteran's favor, his peripheral neuropathy of the left upper extremity was caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 3. Resolving all doubt in the Veteran's favor, his peripheral neuropathy of the right lower extremity was caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 4. Resolving all doubt in the Veteran's favor, his peripheral neuropathy of the left lower extremity was caused or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision herein as to the issues on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis The Veteran contends that he has peripheral neuropathy of the bilateral upper and bilateral lower extremities secondary to his service-connected diabetes mellitus. He does not allege direct service connection for his peripheral neuropathy. By way of background, the Veteran was originally diagnosed as having diabetes mellitus around January 2005. The RO awarded service connection for diabetes mellitus on a presumptive basis in an April 2005 rating decision. The record reflects that the Veteran experienced a work-related motor vehicle accident (MVA) in May 2004, following which he had significant neck problems. Treatment records document multiple neck surgeries and fusions. The Veteran has sought workers' compensation benefits for injuries sustained during the 2004 MVA. These workers' compensation records are associated with the claims file and have been reviewed. The evidence also shows a history of carpal tunnel syndrome of the right hand/wrist and subsequent release. Private treatment records also show a diagnosis of obstructive sleep apnea. The Veteran's treating physician submitted a prescription sheet stating that the Veteran has "diabetic neuropathy which may be service related." No rationale was provided or other discussion of the pertinent evidence of record. The Veteran was afforded a VA peripheral nerves examination in September 2005, at which time he was diagnosed as having peripheral neuropathy of the upper and lower extremities. The examiner opined that the Veteran's peripheral neuropathy was less likely than not related to his diabetes mellitus. In reaching this conclusion, the examiner indicated that the Veteran reported his symptoms of peripheral neuropathy had their onset approximately one month after his diagnosis of diabetes mellitus, but diabetic neuropathy is usually a result of a year or more of poorly controlled diabetes. The examiner indicated that the Veteran's history of ethanol dependence was the likely cause of his current peripheral neuropathy. The Veteran also submitted a July 2006 statement from his treating neurologist. The neurologist indicated that the Veteran is currently suffering from diabetic neuropathy-including his feet and hands. He stated that it seemed to be related to his diabetes. Workers' compensation treatment records show diagnoses including cervical radiculopathy, lumbar radiculopathy and diabetic peripheral neuropathy. The Veteran was afforded another VA examination of the peripheral nerves in April 2012, during which he was diagnosed as having peripheral neuropathy. The examiner opined that his current peripheral neuropathy is less likely than not due to his diabetes mellitus. In reaching this conclusion, the examiner pointed to the Veteran's work-related MVA with history of neck and back injuries, history of heavy alcohol usage, and morbid obesity as the cause of his peripheral neuropathy. The examiner did not, however, provide an opinion as to aggravation. Private EMG records, dated in June 2012, show a diagnosis of peripheral neuropathy of the bilateral lower extremities secondary to diabetes mellitus. Also noted was bilateral median sensory and right motor neuropathy consistent with carpal tunnel syndrome. The Veteran presented his treating neurologist with a Disability Benefits Questionnaire (DBQ) and requested that he provide a description of the Veteran's claimed peripheral neuropathy. In March 2013, the neurologist indicated that the Veteran currently has polyneuropathy secondary to diabetes mellitus, restless leg syndrome, and cervical spondylosis. The neurologist specifically indicated that the Veteran had diabetic peripheral neuropathy of the bilateral upper and bilateral lower extremities. The neurologist found that the EMG testing in June 2012 was abnormal and the Veteran had bilateral median sensory and motor neuropathy of the upper and lower extremities. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed peripheral neuropathy of the bilateral upper and bilateral lower extremities was caused or aggravated by his service-connected diabetes mellitus. The Board has reviewed both the positive and negative evidence of record, and is aware that the Veteran had a work-related MVA in 2004. The record shows that the Veteran was diagnosed as having diabetes mellitus in 2005 and was subsequently diagnosed as having peripheral neuropathy of the upper and lower extremities. Indeed, two VA examiners opined that his neuropathy was secondary to his MVA, obesity, and/or history of alcohol dependence, and unrelated to his diabetes mellitus. Also of record, however, are statements made by the Veteran's treating neurologist and physician finding that his neuropathy is diabetic in nature, and they have not found the neuropathy was caused or aggravated by other factors. The Board finds that the differing medical opinions are of equal probative value in this case. Both sets of opinions were offered by competent medical professionals. They were based on reviews of the pertinent records and treatment history of the Veteran. They provided well-reasoned rationales, albeit conflicting ones. Overall, the Board finds that equipoise has been reached. When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the competing opinions described above, the Board resolves all doubt in the Veteran's favor and finds that his peripheral neuropathy of the bilateral upper and bilateral lower extremities was caused or aggravated by his service-connected diabetes mellitus. ORDER Service connection for peripheral neuropathy of the right upper extremity is granted. Service connection for peripheral neuropathy of the left upper extremity is granted. Service connection for peripheral neuropathy of the right lower extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. REMAND Upon preliminary review of the evidence of record, the Board finds that further evidentiary development is necessary regarding the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. The Veteran contends that his currently diagnosed hypertension is secondary to his service-connected diabetes mellitus. Again, service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran was afforded a VA examination in September 2005 to determine the etiology of his claimed hypertension. The examiner opined that the Veteran's hypertension was not caused by his diabetes mellitus as the hypertension diagnosis predated the diabetes mellitus diagnosis. Additionally, the Veteran has a family history of hypertension and has sleep apnea, both of which contribute to his hypertension. This examiner did not, however, provide an opinion as to whether the Veteran's diabetes mellitus has chronically aggravated his hypertension. The Board finds that the September 2005 VA opinion is inadequate inasmuch as it does not include an opinion with rationale as to whether the Veteran's hypertension is aggravated by his service-connected diabetes mellitus. Based on the foregoing, the Board finds that a further VA examination and opinion must be requested prior to a resolution of this appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the Veteran why one will not or cannot be provided). Finally, it appears that the Veteran has not been provided notice compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) with respect to his service connection claim for hypertension. Upon remand, the Veteran should be provided this notice. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice with respect to the initial-disability-rating and effective-date elements of a service-connection claim as required under Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Perform any development deemed necessary. 2. Obtain any outstanding and relevant treatment records and associate them with the claims file. 3. Then, schedule the Veteran for another VA examination with an examiner with the appropriate expertise to determine the etiology of his hypertension. The examiner is asked to review the entire claims file (including any relevant treatment records on Virtual VA) and address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current hypertension, was: a) caused by, or b) aggravated (i.e., permanently worsened) by the service-connected diabetes mellitus. All opinions must be supported by a complete rationale in a typewritten report. 4. Then, readjudicate the claim with consideration of all new evidence as well as any evidence, included in Virtual VA. If the determination of this claim remains less than fully favorable to the Veteran, he and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs