Citation Nr: 1609314	
Decision Date: 03/08/16    Archive Date: 03/15/16

DOCKET NO.  10-10 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to the Veteran's now-service-connected diabetes mellitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel





INTRODUCTION

The Veteran served on active duty from March 1968 to March 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's claim file is currently under the jurisdiction of the RO in New Orleans, Louisiana.

The Board remanded the Veteran's claims for entitlement to service connection for hearing loss, right ear, tinnitus, and peripheral neuropathy of the bilateral upper and lower extremities in August 2013 so as to allow the Veteran to testify before a Veterans Law Judge (VLJ).  The Veteran withdrew his hearing request in August 2014.  The Board further notes that all claims remanded by the Board, save for the issue on appeal, were granted.  As such, those claims are no longer in appellate status.

The issues of entitlement to service connection for a skin disorder and left knee disorder have been raised by the record (see Claim, December 2015), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).


FINDING OF FACT

Medical evidence of record indicates that the Veteran's diagnosed peripheral neuropathy, bilateral lower extremities, is related to his service-connected diabetes mellitus.





CONCLUSION OF LAW

Criteria for service connection for peripheral neuropathy of the bilateral lower extremities have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims that he is entitled to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to his now-service-connected diabetes mellitus.  To that end, the U.S. Court of Appeal for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See generally Hickson v. West, 12 Vet. App. 247, 253 (1999).

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Turning to the evidence of record, the Veteran has a current diagnosis of diabetic peripheral neuropathy, and he is currently service connected for diabetes.  While peripheral neuropathy of the bilateral upper extremities was granted, effective September 2009, it does not appear that service connection has been granted for the same condition in the lower extremities.  In a November 2015 VA examination report, a VA examiner clearly linked the Veteran's lower extremity complaints to a service-connected disability.  As such, the Board finds that the evidence favors the Veteran's claim.  Entitlement to service connection peripheral neuropathy of the bilateral lower extremities is granted.  

In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). 


ORDER

Service connection for peripheral neuropathy of the bilateral lower extremities is granted.


____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs