Citation Nr: 1328089 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-20 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of the legs and feet, to include as due to exposure to Agent Orange or as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in August 2009, March 2011 and February 2012, at which times it was remanded for additional development of the record and/or to ensure due process. The Board notes that the Veteran's claims file was lost, and rebuilt. He was advised by June 2013 letter that his claims folder could not be located and was asked to provide any pertinent evidence in his possession. FINDING OF FACT It is reasonably shown that during the pendency of this claim the Veteran has had peripheral neuropathy of the legs and feet which was related by competent medical evidence to his service-connected type II diabetes mellitus. CONCLUSION OF LAW Service connection for peripheral neuropathy of the legs and feet as secondary to service-connected diabetes is warranted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.310 (a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies in this case. However, as the benefit sought is being granted, there is no need to belabor the impact of the VCAA on the claim, as any VCAA-mandated notice or duty to assist omission is harmless. Factual background, legal criteria and analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence received be discussed in detail. Rather, the evidence will be summarized, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In June 2005 the Veteran was seen by a private physician for evaluation of complaints of burning hypesthesia of both feet. He reported he had been experiencing a burning and somewhat dysesthetic sensation in both feet for the previous 15 years. He denied a history of diabetes, but apparently was recently checked for such. An electromyogram revealed some chronic distal neurogenic change isolated to the foot musculature. The impression was that the Veteran's clinical history, physical examination and electrodiagnostic testing were all compatible with a diagnosis of a mild axonal motor sensory neuropathy, the exact etiology of which was unclear. The examiner stated it was conceivable it could be related to Agent Orange exposure. On April 2011 VA examination it was noted that the Veteran had type 2 diabetes mellitus diagnosed in November 2009. He stated he had had burning and stinging sensations with occasional pain in both feet for the previous 10 years. It was noted he had seen a neurologist five years earlier and was told he had peripheral neuropathy of both feet, and that it was not related to diabetes. The diagnosis was peripheral neuropathy of both feet. The examiner opined it was less likely than not that the peripheral neuropathy was related to diabetes since it had preceded such diagnosis by 10 years. In March 2012, a VA physician reviewed the Veteran's VA and private medical records. He noted the Veteran had had peripheral neuropathy of the lower extremities since 1997. The examiner concluded the etiology of the Veteran's peripheral neuropathy was entirely unknown/unclear at that time. He concluded it was less likely as not that the Veteran's peripheral neuropathy was related to his exposure to herbicides during service, or was otherwise related directly to service. It was also less likely as not that the Veteran's peripheral neuropathy was either caused or aggravated by diabetes mellitus. In June 2013, a VA physician provided an opinion regarding the etiology of the Veteran's peripheral neuropathy of the lower extremities. Based on review of the Veteran's claims folder and his electronic VA medical record, VA examinations, and a limited review of literature, he concluded that the Veteran's claimed peripheral neuropathy, diagnosed as bilateral lower extremity peripheral neuropathy with moderate incomplete paralysis involving the sciatic and deep peroneal nerves, was less likely than not incurred in or caused by service, to include exposure to Agent Orange. He also concluded that the Veteran's claimed peripheral neuropathy, diagnosed as bilateral lower extremity neuropathy with moderate incomplete paralysis involving the sciatic and deep peroneal nerves was at least as likely as not proximately due to or the result of the Veteran's service-connected diabetes mellitus type II. The physician acknowledged the Veteran's peripheral neuropathy did not have its onset for more than 25 years after the Veteran returned from Vietnam. He summarized an article that noted diabetic neuropathy occurs in nearly 50 percent of patients with diabetes, and further stated that it is a late finding in type 1 diabetes, but can be an early finding in type 2 diabetes. The primary types of diabetic neuropathy are sensorimotor and autonomic. Patients may present with only one type of diabetic neuropathy or they may develop combinations of neuropathies. The physician observed that the Veteran had only one type of diabetic neuropathy, the autonomic type. He also observed that no other cause had been identified for the Veteran's neuropathy. Service connection has been established for type 2 diabetes mellitus, rated 20 percent. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3)evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). Peripheral neuropathy was not manifested in, and is not shown to be directly related to, the Veteran's active duty service. It is not in dispute that symptoms of the Veteran's lower extremity peripheral neuropathy had their onset prior to his diagnosis of type 2 diabetes mellitus. There are conflicting medical opinions in the record regarding the etiology of the peripheral neuropathy. As noted above, a VA examiner concluded in April 2011 that since peripheral neuropathy was present before diabetes, it was less likely that it was related to his service-connected diabetes mellitus. A similar conclusion was reached by a VA physician in March 2012, who also believed the peripheral neuropathy of the lower extremities was unrelated to herbicide exposure or to diabetes mellitus type 2. However, a contrary conclusion was reached by a VA physician who reviewed the claims folder in June 2013. This physician reviewed medical literature and pointed out that peripheral neuropathy can be an early finding in type 2 diabetes. Under the circumstances, the Board finds the evidence is, at least, in equipoise. Accordingly, resolving reasonable doubt in the Veteran's favor as required, the Board concludes that secondary service connection for peripheral neuropathy of the legs and feet is warranted. ORDER Service connection for peripheral neuropathy of the legs and feet is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs