Citation Nr: 1802235 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-21 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral lower extremity peripheral neuropathy, diagnosed as axonal neuropathy, to include as secondary to service-connected diabetes. REPRESENTATION Appellant represented by: Charles D. Norton, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to March 1971, with a period of service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied service connection for bilateral lower extremity axonal neuropathy. The Veteran filed a timely notice of disagreement in March 2013. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. After the hearing, the Veteran submitted additional evidence, but did not waive initial RO consideration. However, as the Board is granting the Veteran's claim of entitlement to service connection, there is no prejudice to the Veteran in adjudicating this claim. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's bilateral lower extremity peripheral neuropathy is attributable to his service-connected diabetes mellitus, type II. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran the criteria for service connection for bilateral lower extremity peripheral neuropathy as secondary to service-connected diabetes have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, the Board is granting the claim for service connection for bilateral lower extremity peripheral neuropathy. Therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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). Service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Analysis The Veteran contends that service connection is warranted for his bilateral peripheral neuropathy, diagnosed as axonal neuropathy, as secondary to his service-connected diabetes. On an October 1969 entrance examination, the Veteran denied neuritis, paralysis, arthritis, or swollen or painful joints. Upon objective examination, a neurologic examination was normal and the Veteran's upper and lower extremities were found normal. In December 1969, the Veteran was seen by podiatry for tendonitis in his left ankle and on a December 1969 medical history form, the Veteran reported arthritis. On a February 1971 separation examination, the Veteran denied neuritis, paralysis, arthritis, or swollen or painful joints. Upon objective examination, a neurologic examination was normal and the Veteran's upper and lower extremities were found normal. The Veteran's service treatment records are otherwise silent for complaints of or treatment for extremity pain. Post service private treatment records reflect that in September 2002, the Veteran reported having joint pains and muscle aches for approximately one year. He was diagnosed with muscle pain and spasm and myositis. In December 2005, the Veteran was found to have radiation over the calcaneals bilaterally, and was diagnosed with bilateral foot pain. A January 2006 imaging study of the left foot was negative for fracture. VA treatment records reflect that April 2007 and October 2008 foot sensory examinations using a monofilament were normal. In September 2007, the Veteran was diagnosed with chronic right peroneal tendonitis. The Veteran was diagnosed with diabetes mellitus, type II in August 2008, and has been service-connected for the disability. In November 2010, the Veteran underwent electrodiagnostic studies for his extremities. The Veteran reported numbness in his hands and feet and it was noted that he had undergone bilateral carpel tunnel surgery several years prior and had been diagnosed with diabetes. In the lower extremities, peroneal and tibial nerve conduction studies revealed normal latencies and conduction velocities. H-reflexes were present. Sural nerve sensory potentials could not be obtained. The resulting impression was axonal neuropathy and bilateral carpel tunnel syndrome. An undated letter from the Veteran's treating physician Dr. K. noted recurrent bilateral carpel tunnel syndrome as well as an overlying axonal neuropathy in the upper and lower extremities, and that surgery for the bilateral carpel tunnel syndrome would probably not be beneficial due to the neuropathy. An opinion from Dr. F. in February 2011 noted that the Veteran reported that his hands and feet were constantly numb and an injection did not help the Veteran's carpel tunnel syndrome. Therefore, Dr. F. opined that the Veteran's problem was most likely that of peripheral neuropathy. The Veteran was afforded a VA examination in February 2013. The examiner noted that the Veteran's claim file was reviewed and the examiner found that the Veteran had been diagnosed with peripheral neuropathy, noting bilateral carpel tunnel syndrome and axonal neuropathy of the bilateral upper and lower extremities. The examiner noted that the Veteran reported being diagnosed with diabetes mellitus, type II four years prior and that he had neuropathy, including tingling, numbness, and weakness, of both lower extremities and feet since the early 1970's which worsened over the years. The examiner noted that the Veteran had symptomology associated with diabetic peripheral neuropathy, including mild intermittent pain, paresthesias/dysesthesias, and numbness of the bilateral upper and lower extremities and that the Veteran's diabetic peripheral neuropathy impacted his ability to work. However, the examiner then marked that the Veteran did not have upper or lower extremity diabetic peripheral neuropathy. After reviewing the Veteran's service medical records and VA records, but not the Veteran's private medical records, the examiner opined that the Veteran's axonal neuropathy of the bilateral lower extremities was less likely as not proximately due to or the result of his diabetes mellitus, finding that the Veteran had axonal neuropathy and that a peripheral neuropathy of the bilateral lower extremities was not corroborated as having occurred during service or proximately due to or the result of his diabetes, noting that the Veteran stated his symptoms began many years prior to onset and diagnosis of diabetes. VA treatment records reflect that the Veteran began taking amitriptyline HCL for sleep and diabetic neuropathy. See January 2012, May 2012, and January 2013 VA treatment records. A September 2013 letter from the Veteran's physician, Dr. A., notes that the Veteran was diagnosed with peripheral neuropathy of both hands and feet, type II diabetes, and ischemic heart disease, which are conditions that have been linked to Agent Orange exposure. His physician reviewed the evidence-based sources indicated that the Veteran's Agent Orange exposure has been strongly linked to his peripheral neuropathy in both hands and feet, type II diabetes, and ischemic heart disease. Due to the location of the Veteran's military service, his diagnoses were most likely due to his exposure during that time. In May 2014, the Veteran was prescribed Lyrica for his "diabetic neuropathy" by his private physician. VA treatment records reflect that in August 2016, the Veteran was positive for hyperesthesia on direct compression of both feet, with decrease of vibratory and monofilament sensation in the right foot. He was noted to have onychomycosis with secondary diabetic pedal neuropathy and his dosage of gabapentin was increased. See February 2017 VA treatment records. A June 2014 Disability Benefits Questionnaire completed by Dr. A lists diagnoses of bilateral carpel tunnel syndrome in 1998, diabetes mellitus type II in 2008, and diabetic peripheral neuropathy in 2008-2009. It was noted that the Veteran had been diagnosed with diabetic peripheral neuropathy, with symptoms of burning sensation in hands and feet, tingling in the hands, numbness in and the hands and feet, and that his hands and feet had progressively worsened. The examiner found constant moderate upper extremity pain and constant severe lower extremity pain, and moderate numbness and paresthesias/dysesthesias in both upper and lower extremities. Light touch monofilament tests were decreased bilaterally in the hands and fingers, ankle/lower leg, and foot/toes. Vibration and cold sensation were decreased in the upper extremities and absent in the lower extremities. Trophic changes included loss of extremity hairs on the dorsum of the hands and over the feet and ankles. The examiner found that the Veteran had bilateral upper and lower extremity diabetic peripheral neuropathy. An August 2017 letter from the Veteran's treating physician, Dr. A., noted that the Veteran has a history of diabetes and moderately severe peripheral neuropathy of both upper and lower extremities. The physician stated that the Veteran was currently on duloxetine for his peripheral neuropathy and had been prescribed gabapentin and Lyrica in the past for his peripheral neuropathy. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is in relative equipoise as to whether the Veteran's peripheral neuropathies are secondary to his service-connected diabetes mellitus. In the present case, the private medical opinions are of somewhat limited probative value because they did not indicate that they reviewed the Veteran's claims file, nor did they discuss the negative VA opinion. However, the VA opinion is also of limited probative value, as the examiner indicated that the Veteran's private treatment records were not reviewed. Furthermore, the examination results were internally inconsistent, in that the examiner referred to the Veteran's diabetic peripheral neuropathy and that it would interfere with his work, but then found that the Veteran did not have diabetic peripheral neuropathy. The medical record of evidence reflects that the Veteran was diagnosed with diabetes mellitus, type II in August 2008. Prior to his diagnosis, the Veteran reported foot pain, which was diagnosed as chronic right peroneal tendonitis. The Board notes that monofilament testing prior to his diagnosis of diabetes was normal. After the Veteran's diabetes diagnosis, he reported numbness and tingling in all extremities and underwent electrodiagnostic testing, which revealed axonal neuropathy. Monofilament testing subsequent to his diagnosis has been positive, and the Veteran has been treated for, and prescribed medicine for, his "diabetic neuropathy." The Board could seek further examination or medical opinion to aid in determining the etiology of the current peripheral neuropathy. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, there are medical opinions and medical evidence that the Veteran's peripheral neuropathy is due to his diabetes. Thus, as there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Board finds that this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In resolving all reasonable doubt in the Veteran's favor, service connection for bilateral lower extremity peripheral neuropathy is warranted. ORDER Service connection for bilateral lower extremity peripheral neuropathy as secondary to service-connected diabetes mellitus type II is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs