Citation Nr: 1328909 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-07 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right hand. 2. Entitlement to service connection for peripheral neuropathy of the left hand. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1966 to November 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). The development directed in the Board's July 2011 remand has been completed. FINDINGS OF FACT 1. Right hand peripheral neuropathy is proximately due to service-connected alcohol dependency. 2. Left hand peripheral neuropathy is proximately due to service-connected alcohol dependency. CONCLUSIONS OF LAW 1. The criteria for service connection of peripheral neuropathy of the right hand are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2013). 2. The criteria for service connection of peripheral neuropathy of the left hand are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claims of service connection for peripheral neuropathy of the right and left hands, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §§ 1110 (wartime service) and 1131 (peacetime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability that is proximately caused by, or is aggravated (permanently worsened in severity) by, a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 237 F.3d 1368 (Fed. Cir. 2001). To prevail on the issue of secondary service causation, the record must generally show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records do not document any complaint or finding of a neurological abnormality of either hand. After service on VA examination in July 1981, the Veteran complained of right hand numbness since 1976. Private records in December 1993 and VA records in December 2007, in February 2009 and in April document the Veteran's complaints of numbness in each hand. In a rating decision in August 1997, the RO granted service connection for posttraumatic stress disorder. In a rating decision in August 2008, the RO increased the rating for PTSD with secondary alcohol dependence to 50 percent, following the termination of a temporary total disability rating for hospitalization. In a rating decision in July 2009, the RO increased the rating for PTSD with secondary alcohol dependence to 70 percent, following the termination of a temporary total disability rating for hospitalization. On VA examination in January 2012, the diagnosis was bilateral peripheral neuropathy of the hands. The VA examiner expressed the opinion that peripheral neuropathy of the hands was likely due to the Veteran's excessive use of alcohol. The VA examiner explained that it was well known and documented in the medical literature that years of heavy alcohol consumption produced diffuse peripheral neuropathy. Analysis With the diagnosis of peripheral neuropathy of the hands on VA examination in January 2012 and as service connection for PTSD has been amended to include secondary alcohol dependence and as the bar to service connection for a disability due to alcohol under 38 U.S.C.A. § 105 and 38 C.F.R. § 3.301(c) does not apply, two elements of secondary service connection have been established, namely, evidence of a current disability and evidence of a service-connected disability. The remaining element to establish secondary service connection is evidence of a causal relationship between the current disability and the service-connected disability. Wallin, at 512. On VA examination in January 2012, the VA examiner expressed the opinion that peripheral neuropathy of the hands was related to alcohol use. The VA examiner explained that it was well known and documented in the medical literature that years of heavy alcohol consumption produced diffuse peripheral neuropathy. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent facts (medical history). The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). By these standards, the opinion of the VA examiner's is persuasive evidence in favor of the claim and as there is no other medical evidence against the claim, the Veteran prevails. Although the Veteran has advanced several theories of entitlement to service connection, as the claims are granted as secondary to service-connected PTSD with secondary alcohol dependence, the principles and theories of direct service connection and secondary service connection due to other service-connected disabilities need not be addressed. ORDER Secondary service connection for peripheral neuropathy of the right hand is granted. Secondary service connection for peripheral neuropathy of the left hand is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs