Citation Nr: 1340404 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 08-05 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, including as due to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, including as due to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from January 1967 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The case was most recently remanded in December 2011 for further development. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, peripheral neuropathy of the bilateral lower extremities is caused by his diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes mellitus, type II have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes mellitus, type II, which constitutes a complete grant of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veteran seeks service connection for peripheral neuropathy of his left and right lower extremities that he claims is due to his service-connected diabetes mellitus, type II. Service connection for diabetes mellitus, type II, was granted by the RO in a May 2006 rating decision that awarded a 20 percent disability evaluation Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, 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). A disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. When aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. See Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. As the Veteran's claim was not pending prior to the effective date of the revised 38 C.F.R. § 3.310, the revised version of the regulation is for application in this case. The facts of this case may be briefly summarized. Service treatment records are negative for complaints, treatment, or diagnoses related to diabetes mellitus or peripheral neuropathy of the bilateral lower extremities. Service personnel records reflect that the Veteran had Vietnam service from June 1967 to June 1968. VA treatment records reflect that the Veteran was initially diagnosed with diabetes mellitus, type II on June 24, 2004. A May 2006 rating decision granted service connection for diabetes mellitus, type II rated as 20 percent disabling, effective June 24, 2004 based on a presumptive basis as related to Agent Orange exposure during his Vietnam service. A review of VA out-patient treatment records showed complaints, treatments, and the issuance of medications for peripheral neuropathy. In January 2007, the Veteran underwent VA examination and was diagnosed with peripheral neuropathy. The examiner noted that the Veteran had a long history of type II diabetes and reported that his lower extremity pain and numbness started after he was diagnosed with the type II diabetes. According to the VA examiner, the Veteran also had a history of alcohol abuse in the past that "could have" also had some contribution to the lower extremity neuropathy. In a February 2007 Addendum, a VA physician-examiner said that the Veteran reported that, after he was diagnosed with diabetes, he developed lower extremity pain and numbness. As to whether the Veteran's lower extremity peripheral neuropathy was due to his service-connected diabetes mellitus, type II, the VA examiner said he was "unable to resolve this issue without resorting to speculation". According to the examiner, the Veteran was diagnosed with type II diabetes and reported lower extremity pain and numbness that started after he was diagnosed with type II diabetes also around 2004. The Veteran also had a long history of alcohol abuse that can cause neuropathy. The VA examiner said diabetic neuropathy was typically a complication of longstanding diabetes. As the Veteran's history of neuropathy was not typical for diabetes neuropathy with its symptoms started in the same year that he was diagnosed with diabetes, and there being another possible etiology to his neuropathy with his alcohol abuse, the VA examiner was unable to resolve this issue without speculating. In January and April 2012 a VA examiner reported that the Veteran had longstanding history of alcohol abuse and that diabetes and alcoholism were the most common etiologies of peripheral neuropathy in adults. The examiner noted that it was not always easy to pinpoint the cause of peripheral neuropathy, because a number of factors could cause neuropathies; some of these factors included: diabetes, alcoholism, and exposure to toxins. The examiner considered that the Veteran's EMG/NCS of upper extremities 10/27/98 indicated that he had peripheral neuropathy consistent alcohol use (axonal damage), at least half of all people with diabetes develop some type of neuropathy patients with type II diabetes mellitus may present with distal polyneuropathy after only a few years of known poor glycemic control and sometimes, these patients already have neuropathy at the time of diagnosis. Although the Veteran has the three major risk factors for PN, i.e alcohol use, Agent Orange exposure and DM, based on HGBA1Cs (normal) dating back to 2001 his glycemic control was good and 1998 EMG/NCS indicated alcohol induced neuropathy. Therefore, the examiner opined that the Veteran's bilateral lower peripheral neuropathies were less likely to be solely due to diabetes mellitus and more likely related to excessive alcohol use combined with other risk factors of diabetes mellitus and Agent Orange exposure. The examiner opined that it was less likely as not that the Veteran's peripheral neuropathy was aggravated by his service connected diabetes mellitus. In light of the above, the Board finds that the while the examiner determined that the Veteran's diabetes mellitus did not solely cause the Veteran's peripheral neuropathy, the Board has interpreted that VA examiner's findings to mean that the Veteran's diabetes mellitus at least contributed to his peripheral neuropathy of the bilateral lower extremities, along with his Agent Orange exposure and alcohol use. There is no evidence to the contrary. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for peripheral neuropathy of the bilateral lower extremities is warranted on a secondary basis. The appeal is granted. ORDER Service connection for peripheral neuropathy of the right lower extremity, including as due to service-connected diabetes mellitus, type II, is granted. Service connection for peripheral neuropathy of the left lower extremity, including as due to service-connected diabetes mellitus, type II, is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs