Citation Nr: 1533597 Decision Date: 08/06/15 Archive Date: 08/20/15 DOCKET NO. 09-21 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to a compensable rating for bilateral diabetic retinopathy and cataracts and left eye maculopathy. 3. Entitlement to an initial compensable rating for peripheral neuropathy of the lower left peroneal nerve. 4. Entitlement to an initial compensable rating for peripheral neuropathy of the lower right peroneal nerve. 5. Entitlement to an initial compensable rating for peripheral neuropathy of the lower left sural (tibial) nerve. 6. Entitlement to an initial compensable rating for peripheral neuropathy of the lower right sural (tibial) nerve. (The issue of whether nonservice-connected pension is a greater benefit than VA compensation, from September 1, 2008, is the subject of a separate decision). REPRESENTATION Veteran represented by: James J. Perciavalle, Agent ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which, inter alia, denied service connection for peripheral neuropathy of the upper and lower extremities. As set forth above, the Veteran's case is currently in the jurisdiction of the RO in Pittsburgh, Pennsylvania. In a January 2014 decision, the Board granted service connection for peripheral neuropathy of the lower extremities and denied service connection for peripheral neuropathy of the upper extremities. In addition, the Board remanded the issue of entitlement to payment of nonservice-connected pension benefits for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). While the pension issue was in remand status, in January 2015, the VA Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania, issued a Statement of the Case, and the Veteran perfected a timely appeal in March 2015. Because the Veteran's pension claim arises from the Philadelphia ROIC and the instant appeal arises from the Pittsburgh RO, the pension claim is the subject of a separate Board decision. See BVA Directive 8430, Board of Veterans' Appeals, Decision Preparation and Processing, 14(c)(1) (where there are matters arising out of two or more agencies of original jurisdiction, separate decisions are required). The Veteran appealed the Board's January 2014 decision denying service connection for peripheral neuropathy of the upper extremities to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in April 2015, the Veteran's then-attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand. In an April 2015 order, the Court granted the motion, vacated that part of the Board's January 2014 decision denying service connection for peripheral neuropathy of the upper extremities, and remanded the matter for readjudication. FINDINGS OF FACT The evidence is in equipoise as to whether the Veteran has peripheral neuropathy of the upper extremities secondary to his service-connected diabetes mellitus. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, peripheral neuropathy of the upper extremities is causally related to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2014). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). In light of the favorable disposition below, the Board finds that any deficiency in VA's notice or development actions is harmless error with respect to the issue adjudicated in this decision. The Veteran claims that he has peripheral neuropathy of the upper extremities secondary to his service-connected diabetes mellitus. The record on appeal contains conflicting information regarding the nature and etiology of his upper extremity symptoms. For example, in pertinent part, VA clinical records show that in July 2000, the Veteran was seen for diabetes with poor control. It was noted that the Veteran had been diagnosed as having diabetes two years prior, although he had not been placed on oral agents until two months ago. It was noted that the Veteran had no symptoms of any diabetic complications and that examination was negative for diabetic neuropathy symptoms. In August 2000, the Veteran's VA physician made a note to the effect that he had started him on multivitamins to prevent further diabetic neuropathy. At a VA medical examination in February 2007, the Veteran's complaints included some hand stiffness and tingling of the right thumb over the years, which the examiner felt were probably due to pathology of the cervical spine. The examiner noted that the Veteran had denied symptomatology related to diabetic neuropathy of the upper extremities. On examination of the upper extremities, the Veteran's nerves were not identified as there was no symptomatology of diabetic neuropathy. The examiner explained that intermittent, atypical upper extremity complaints would not be the result of or caused by the diabetes. At an October 2007 VA medical examination, the examiner noted that the Veteran's neuropathy symptoms had not changed since the February 2007 VA medical examination. The Veteran continued to report hand stiffness and some tingling of the right thumb over the past years, as well as some rare intermittent tingling in the left hand. He also reported that if he put his arms above his head he would get a sensation of the arms falling asleep which the examiner noted would point to cervical spine pathology. The diagnoses included "symptoms are not typical of diabetic neuropathy. This is not neuropathy and not secondary to diabetes." In a June 2008 letter, the Veteran's VA treating physician indicated that the Veteran was under his care for diabetes mellitus. He noted that the Veteran had developed a painful neuropathy of his hands which the physician indicated was secondary to diabetes. In pertinent part, additional VA clinical records show that in June 2008, the Veteran continued to complain of shooting pains in his hands. A diagnosis of presumed diabetic neuropathy was rendered. At an August 2008 VA medical examination, the Veteran was noted to have a history of intermittent upper extremity positional tingling of the hands and fingers for the past 3 years which resolved with movement. The diagnosis was no peripheral neuropathy found of the upper extremities at this time. The examiner indicated that temporary intermittent paresthesias of the upper extremities are not consistent with diabetic peripheral neuropathy. He further explained that nerve conduction studies could only detect the presence or absence of large 7 fiber peripheral nerve dysfunction and could not include the smaller myeloid fibers which were affected first. Thus, he explained that a diagnosis is made based on clinical symptoms rather than testing with EMG/NCS since this would not provide any reliable information nor could it be utilized for the functional diagnosis. The diagnosis was peripheral neuropathy not found at this time. At a December 2008 VA medical examination, the examiner noted that the Veteran's complaints included positional hand numbness and tingling resolved with movement. He had no further symptoms or changes in symptomatology for the upper extremities. The examiner explained that the Veteran's symptoms were not in a stocking glove in distribution, but rather positional. The diagnosis was clinical symptoms of diabetic neuropathy to the upper extremities not secondary to diabetes. In September 2009, the Veteran underwent a neurology consultation at which it was noted that he had a history of upper extremity numbness and tingling. The neurologist treating the Veteran concluded that "[g]iven his long-standing history of poorly controlled diabetes, most likely etiology of this symptom is diabetic neuropathy." An electromyographical (EMG) study to confirm this diagnosis was recommended but there is no indication that such a study was conducted. More recent VA clinical records dated from 2009 to December 2014 show that the Veteran's active problem list continues to include diabetic neuropathies. At a neurology consultation in June 2012, the examiner noted that the Veteran had been followed in the neurology clinic for diabetic peripheral neuropathy. The neurologist noted that at the Veteran's last visit, he had been prescribed menthol Aquaphor cream in addition to Nortriptyline for relief of his neuropathy, although he had not been compliant with his medications. The Veteran indicated that he had had no change in his neuropathy, which he described as an occasional uncomfortable tingling sensation in his hands that is worse during the day. The impression was diabetic neuropathy, currently stable with respect to complaints. During a clinic visit in February 2013, the diagnoses again included diabetic neuropathy. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2014). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2014). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2014). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). 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 claimant. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After carefully reviewing the evidence, the Board finds that the evidence is in equipoise and that service connection for peripheral neuropathy of the upper extremities is also therefore warranted. As noted in more detail above, the record contains conflicting medical opinions regarding the nature and etiology of the Veteran's upper extremity neuropathy symptoms. For example, VA medical examiners have concluded that given the nature of the Veteran's described symptoms, they were not typical of diabetic neuropathy. On the other hand, the Veteran's VA treating physicians, including his VA neurologist, have concluded that he does have peripheral neuropathy of the upper extremities secondary to his service-connected diabetes mellitus. The Board has carefully reviewed these opinions, but finds no basis upon which to assign greater probative weight to one versus another. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). All of the medical professionals who offered opinions in this case possess the necessary medical expertise and all based their opinions on the Veteran's description of his history and symptoms, as well as a clinical evaluation. None conducted diagnostic testing such as an EMG. The Board concedes that the exact nature and etiology of the Veteran's upper extremity neuropathy symptoms has not yet been definitively established. Indeed, given the explanation by the August 2008 VA examiner that diagnostic testing with EMG/NCV testing would not be definitive in establishing or ruling out a diabetic neuropathy, it appears that the exact nature and etiology of the Veteran's upper extremity neuropathy symptoms cannot be known to a certainty. As set forth above, however, absolute certainty is not required in claims for VA benefits. As noted above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made in this case. In summary, in weighing all of the evidence of record, the Board concludes that there is at least an equal possibility that the Veteran currently has peripheral neuropathy of the upper extremities secondary to his service-connected diabetes mellitus. Under these circumstances, the Board finds that there is an approximate balance of positive and negative evidence, warranting an award of service connection for peripheral neuropathy of the upper extremities. ORDER Entitlement to service connection for peripheral neuropathy of the upper extremities is granted. REMAND In a February 2014 rating decision, the Pittsburgh RO effectuated the Board's January 2014 decision and granted service connection for peripheral neuropathy of the lower left and right peroneal nerves, and peripheral neuropathy of the lower left and right sural (tibial) nerves. The RO assigned each disability an initial zero percent rating, effective September 14, 2007. In March 2014, the Veteran submitted a notice of disagreement with the initial noncompensable ratings assigned by the RO. In addition, in a December 2014 rating decision, the RO denied a rating in excess of 20 percent for the Veteran's service-connected diabetes mellitus with bilateral diabetic retinopathy and cataracts and left eye maculopathy. In its decision, the RO concluded that compensable ratings were not warranted for the Veteran's service-connected bilateral diabetic retinopathy and cataracts and left eye maculopathy, and that such conditions were therefore to be considered part of the diabetes rating itself. Later that month, the Veteran indicated that he disagreed with the RO's determination that compensable ratings were not warranted for his service-connected bilateral diabetic retinopathy and cataracts and left eye maculopathy. The record currently available to the Board contains no indication that the RO has issued a Statement of the Case addressing the issues referenced above. This action is required on remand in order to afford the Veteran the opportunity to perfect his appeal of these issues, should he so desire. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the Agency of Original Jurisdiction (AOJ) is necessary). Accordingly, the case is REMANDED for the following action: Issue a Statement of the Case to the Veteran and his agent addressing the issues of entitlement to initial noncompensable ratings for peripheral neuropathy of the lower left and right peroneal nerves, and peripheral neuropathy of the lower left and right sural (tibial) nerves, as well compensable ratings for bilateral diabetic retinopathy and cataracts and left eye maculopathy. The Veteran must be advised of the time limit in which he may file a substantive appeal, if he so desires. 38 C.F.R. § 20.302(b) (2014). This issue should then be returned to the Board for further appellate consideration, only if an appeal is properly perfected. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs