Citation Nr: 1331008 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 13-00 482 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to the service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the RO. The Board notes that a written statement from the Veteran and private treatment records were received by the Board without initial review by the RO. The Board has determined that the benefit to which the evidence relates will be fully allowed and therefore referral to the agency of original jurisdiction is not necessary. 38 C.F.R. § 20.1304(c). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file shows that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The currently demonstrated peripheral neuropathy of the lower extremities is shown as likely as not to be caused by the service-connected diabetes mellitus. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by peripheral neuropathy of the lower extremities is proximately due to or the result of the service-connected diabetes mellitus. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that the action taken herein below is favorable to the Veteran, further discussion of VCAA is not required at this time. Legal Principles and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current peripheral neuropathy of the lower extremities is due to his service-connected diabetes mellitus. A review of the Veteran's VA treatment records dated from December 2009 to July 2010, private treatment records dated from May 2010 to June 2013, and the July 2010 VA peripheral nerves and diabetes mellitus examinations, show the Veteran currently has peripheral neuropathy of the lower extremities. The Board notes that the RO granted service connection for diabetes mellitus, type II associated with herbicide exposure by rating decision in August 2010. What remains to be established is whether the Veteran's current peripheral neuropathy of the lower extremities is caused or aggravated by his service-connected diabetes mellitus. The VA treatment records from December 2009 to July 2010 showed that the Veteran had peripheral neuropathy of the lower extremities, noted as being diabetic neuropathy. The Veteran was afforded a VA peripheral nerve examination in July 2010. After an examination of the Veteran and a review of his medical records, the VA examiner opined that the etiology of the Veteran's peripheral neuropathy of the lower extremities was the diabetes mellitus. The Veteran was also afforded a VA diabetes mellitus examination in July 2010. The examiner opined that the Veteran's peripheral neuropathy of the lower extremities was not a complication of his diabetes mellitus because its onset predated his diagnosis of diabetes mellitus. The examiner added that diabetes mellitus was a known cause of peripheral neuropathy and his symptoms of peripheral neuropathy of the lower extremities had worsened since he was diagnosed with diabetes mellitus. The Veteran's private treatment records dated from May 2010 to July 2013 showed that he sought treatment and evaluation of his peripheral neuropathy of the lower extremities. After an examination, the treating physician opined that the Veteran's peripheral neuropathy of the lower extremities was due to his diabetes mellitus. In a written statement dated July 2013, the Veteran indicated that he received his first routine physical and blood test at VA in August 2009 when he was diagnosed with diabetes mellitus. His statements in this regard are competent and credible. As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise is showing that the current peripheral neuropathy of the lower extremities as likely as not was caused by the service-connected diabetes mellitus. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. Gilbert, 1 Vet. App. at 53. ORDER Service connection for peripheral neuropathy of the lower extremities, as secondary to the service-connected diabetes mellitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs