Citation Nr: 1612219 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 09-47 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from October 1970 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the claims file is currently held by the RO in Indianapolis, Indiana. The Veteran testified at a hearing before a hearing officer at the Indianapolis RO (DRO hearing) in March 2010. A transcript of this hearing is associated with the claims file. This matter was previously remanded by the Board in August 2014 to provide a VA neurological examination. It has now returned to the Board for further appellate action. Of note, service connection for type II diabetes mellitus was subsequently granted in an October 2014 rating decision, a fact which markedly affects the disposition of this appeal, as noted below. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the bilateral lower extremities is etiologically related to service-connected diabetes mellitus. 2. The Veteran has not been diagnosed with or experienced peripheral neuropathy of either upper extremity at any point during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to service-connected diabetes mellitus, are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 2. The criteria for establishing service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus, are not met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including organic neurological disorders, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran contends that service connection is warranted for peripheral neuropathy of the upper and lower extremities because it is secondary to his service-connected diabetes mellitus. To establish compensation for a present disability secondary to a service-connected disability, a veteran must demonstrate the existence of (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). The first element requires a current disability. The September 2015 VA examination revealed that the Veteran has diabetic peripheral neuropathy of the bilateral lower extremities and notes symptoms he experiences, including severe intermittent pain and severe paresthesias and/or dysthesias. The VA examination also revealed that the Veteran does not have peripheral neuropathy of either upper extremity. This diagnosis of peripheral neuropathy in only the lower extremities is consistent with the medical and lay evidence of record. In the September 2015 VA examination the Veteran reports burning in the soles of his feet since 2009 but denies similar symptoms in his arms. May 2009 treatment records from the Indianapolis VA Medical Center (VAMC) report mild diffuse peripheral neuropathy in the bilateral lower extremities but do not reference upper extremity peripheral neuropathy. In addition, the Veteran testifies at the March 2010 DRO hearing that he is claiming only lower-extremity peripheral neuropathy. Thus, the Board finds that the record demonstrates a current disability of peripheral neuropathy in the lower extremities but does not support a diagnosis of peripheral neuropathy in either upper extremity. Continuing with the analysis as it pertains to the Veteran's lower-extremity peripheral neuropathy claim, the Board finds that the record clearly demonstrates a service-connected disability and provides evidence linking it to the current disability. The September 2015 VA examiner opines that the peripheral neuropathy of the lower extremities is at least as likely as not caused by the Veteran's service-connected diabetes mellitus, citing the Veteran's long history of type II diabetes mellitus and the characteristic symptoms he experiences. Thus, the medical evidence supports a link between lower-extremity peripheral neuropathy and the Veteran's service-connected diabetes mellitus. In sum, the Board concludes that service connection is not appropriate for peripheral neuropathy of the upper extremities because the record does not demonstrate the existence of such a disability. In contrast, the Board finds secondary service connection is warranted for peripheral neuropathy of the bilateral lower extremities because it is a result of his service-connected diabetes mellitus. Finally, should the Veteran be diagnosed with peripheral neuropathy of the upper extremities in the future, he may apply to reopen his claim for service connection for that disability. Duties to Notify and Assist VA has certain duties to notify and assist a claimant in the substantiation of a claim. VA must also inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran received notice regarding the disability-rating and effective-date elements of the claim in a June 2008 letter. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The June 2008 letter also provided notice fulfilling the requirements of 38 C.F.R. § 3.159(b) for direct service-connection claims; notice regarding secondary service connection, however, was not included. Thus, the Veteran has not received proper notice with respect to his claims for secondary service connection, but the Board notes that he also has not alleged any prejudice resulting from this lack of notice. Prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Mayfield v. Nicholson, 19 Vet. App. 103 116, 122 (2005). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective; (2) what evidence the appellant would have provided or requested that VA obtain had VA fulfilled its notice obligations; and (3) how the lack of notice and evidence affected the essential fairness of the adjudication. Id; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful). Although the notice did not address secondary service connection, the Board finds this did not prejudice the Veteran because one claim is being granted and the other has been denied for an element of service connection shared between direct and secondary theories of entitlement. The Veteran's claim regarding the upper extremities is being denied because there is no evidence of current peripheral neuropathy, and he was fully notified that evidence of a current disorder was a required service connection element in the June 2008 letter. Thus, the lack of VCAA notice regarding service connection on a secondary basis did not result in any prejudice to the Veteran. In addition, VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, he was provided a proper VA examination in September 2015 that opined as to the extent and etiology of his peripheral neuropathy. The Board also finds that VA has complied with the Board's August 2014 remand instructions. In response to the remand, VA provided a VA examination in September 2015 that addressed the existence and etiology of peripheral neuropathy in the Veteran's upper and lower extremities. The case was then readjudicated in a September 2015 supplemental statement of the case (SSOC). The Board therefore finds that VA has complied with the August 2014 remand orders. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements; to the extent the notice was noncompliant, the Board finds that the deficiency did not prejudice the Veteran. ORDER Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs