Citation Nr: 1635201 Decision Date: 09/08/16 Archive Date: 09/20/16 DOCKET NO. 05-25 682 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for bilateral upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus. ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. The Veteran died in December 2012, and the appellant is the Veteran's surviving spouse. In December 2012, the appellant requested to be substituted as the appellant for purposes of processing the claims to completion. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015); see also 79 Fed. Reg. 52977-85 (Sept. 5, 2014). In May 2014, the RO notified the appellant that her status as the substituted claimant had been recognized and approved. Accordingly, the appellant is substituted. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the RO in Waco, Texas, which, in pertinent part, denied service connection for bilateral upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus. This case was previously before the Board in January 2016, where the Board denied service connection for hypertension, and remanded the bilateral upper extremity peripheral neuropathy issue on appeal for additional development. The matter has been properly returned to the Board for appellate consideration; therefore, the January 2016 Board remand has been complied with, so an additional remand to comply with the January 2016 directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In the August 2005 claim, the Veteran claimed service connection for the issue on appeal as secondary to service-connected diabetes mellitus. In the August 2009 substantive appeal, the Veteran indicated that he was only claiming entitlement to service connection as secondary to the service-connected diabetes. As such, the issue on appeal has been limited by the Veteran to a secondary service connection theory, and has been characterized on the title page of this decision to reflect the same; therefore, service connection on a direct or presumptive basis under 38 C.F.R. §§ 3.303, 3.307, and 3.309 (2015) has not been raised, so will not be addressed. FINDING OF FACT The Veteran's bilateral upper extremity peripheral neuropathy was not causally related to or permanently worsened by service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for bilateral upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In September 2005, VA issued a VCAA notice that informed the Veteran about the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. The September 2005 VCAA notice was issued to the Veteran prior to the March 2006 rating decision; therefore, there was no defect with respect to the timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus, the Board concludes that VA satisfied its duties to notify the Veteran. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file include service treatment records, post-service VA and private treatment records, VA examination reports from October 2005 and August 2009, VA medical opinions from February 2012, June 2014, May 2015, and March 2016, as well as various lay statements. The Veteran was afforded VA medical examinations in October 2005 and August 2009 in connection with the claim for service connection. 38 C.F.R. § 3.159(c)(4). In addition, VA medical opinions were obtained in February 2012, June 2014, May 2015, and March 2016. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations, together with the four VA medial opinions, are adequate with regard to the claim of service connection bilateral peripheral neuropathy as secondary to service-connected diabetes. The opinions expressed considered all the pertinent evidence of record, to include the statements of the Veteran, and provided sufficient rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues of service connection for bilateral upper extremity peripheral neuropathy as secondary to service-connected diabetes. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Service Connection for Bilateral Upper Extremity Peripheral Neuropathy as Secondary to Service-Connected Diabetes Mellitus Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Pertinent in this case, service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310(c). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. at 308-09. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. The Veteran has specifically advanced that service connection is warranted for bilateral upper extremity neuropathy as secondary to service-connected diabetes mellitus. See August 2005 statement; see also August 2009 substantive appeal. As such, the only question in this case is whether the bilateral neuropathy was caused or aggravated by the service-connected diabetes mellitus. 38 C.F.R. § 3.310(a). During the RO's development of this claim, the Veteran was evaluated at October 2005 and August 2009 VA examinations. Supplemental VA medical opinions were obtained in February 2012 and, after the Veteran's death, in June 2014, May 2015, and March 2016. In the May 2015 VA supplemental medical opinion, the VA examiner opined that the Veteran's upper extremity neuropathy was not caused by the service-connected diabetes. The VA examiner reasoned that "diabetic neuropathy always begins in the feet and many [years] later may begin in the hands." The VA examiner also reasoned that there was no evidence that the Veteran had peripheral neuropathy in the lower extremities, implying that the upper extremity neuropathy could not, therefore, be diabetic in nature. The VA examiner then indicated that diagnostic testing reflected that the upper extremity neuropathy was an entrapment neuropathy and likely originated in the cervical spine. The March 2016 VA addendum opinion reflects that the same VA examiner also opined that the bilateral upper extremity neuropathy was not aggravated by the service-connected diabetes. The VA examiner again reasoned that there was no evidence that the Veteran had peripheral neuropathy in the lower extremities, which indicates that the upper extremity neuropathy could not be diabetic in nature, and, therefore, the bilateral neuropathy was not aggravated by the service-connected diabetes. The May 2015 and March 2016 VA medical opinions are competent and probative medical evidence because they are factually accurate, and are supported by an adequate rationale. The VA examiner reviewed the claims file and fully articulated the opinions and rationale. For these reasons, the Board finds the May 2015 and March 2016 VA examiner's opinions and rationale to be highly probative. While the Veteran and appellant are competent to relate symptoms of bilateral upper extremity neuropathy experienced at any time, under the specific facts of this case, which include no evidence of peripheral neuropathy in the lower extremities and diagnostic testing indicating that the upper extremity neuropathy was an entrapment neuropathy and likely originated in the cervical spine (discussed above), the Veteran and appellant are not competent to opine on whether there is a link between the current bilateral upper extremity neuropathy and service-connected diabetes or to render a competent medical opinion regarding the cause of the medically complex disorder of neuropathy. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Medical principles relating to peripheral neuropathy, a neurological disorder and how peripheral neuropathy is related to diabetes mellitus, are not within the realm of common lay knowledge. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see 38 C.F.R. § 3.159(a)(2). For these reasons, the Board concludes that service connection is not warranted on a secondary basis. 38 C.F.R. § 3.310. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 . ORDER Service connection for bilateral upper extremity peripheral neuropathy as secondary to service-connected diabetes mellitus is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs