Citation Nr: 1804059	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-12 839	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for diabetic peripheral neuropathy.


REPRESENTATION

Veteran represented by: Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Ryan Frank, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from September 1966 to June 1968, including service in the Vietnam War.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, but was certified to the Board by the RO in Roanoke, Virginia.  In the August 2013 rating decision, the Louisville RO denied service connection for diabetic peripheral neuropathy.


FINDING OF FACT

The probative evidence of record is at least in equipoise as to whether the Veteran's peripheral neuropathy is etiologically related to his service-connected diabetes mellitus, type II.


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for diabetic peripheral neuropathy have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310.  In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against the claim that the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

According to VA treatment records, the Veteran was diagnosed with diabetes in March 2008.  The Veteran is service-connected for diabetes mellitus, type II.  There is no evidence of peripheral neuropathy prior to that date.

During a May 2008 VA treatment appointment, the Veteran reported some unspecified form of paresthesias, burning, pricking, tingling, numbness, or paraplegia.  Monofilament testing showed that sensation was intact.  The treatment provider diagnosed "diabetes with neuropathy."

The Veteran was afforded a VA examination in September 2008.  The Veteran reported paresthesias in the form of occasional burning but, on examination, the examiner found no motor loss, sensory loss, or any other abnormal findings to support the Veteran's subjective report of numbness.  The examiner did not diagnose any neurologic disease.  

During a February 2012 VA treatment appointment, the Veteran reported burning and tingling in his feet.  Monofilament testing showed that sensation was intact.  The treatment provider diagnosed neuropathy.  

During an August 2012 VA treatment appointment, the Veteran reported scattered arthralgias or paresthesias.  Monofilament testing showed that sensation was intact.  The treatment provider diagnosed diabetic neuropathy and noted that the Veteran was treating this condition with capsaicin cream.  

The Veteran was afforded an additional VA examination in November 2012.  The Veteran reported chronic episodic tingling, numbness, and burning sensation in his toes and the bottoms of both feet.  On examination, the Veteran's strength, reflexes, and sensation were normal.  The examiner diagnosed "[o]ther specified idiopathic peripheral neuropathy" with an onset of May 2008.  The examiner opined that the Veteran's "bilateral lower extremity symmetrical neuropathy" was not related to diabetes.  The examiner acknowledged the diagnosis of diabetic peripheral neuropathy in the Veteran's treatment records but found that this diagnosis was "not consistent with evidence based research findings for diabetic peripheral neuropathy."  The examiner quoted medical literature in support of this opinion.  The quoted material states that neuropathy is a very common complication of diabetes that becomes more common over time.  It is not clear how this material supports the examiner's opinion and the examiner provided no other explanation.  

The Veteran's treatment records note that the Veteran was diagnosed with diabetic neuropathy shortly after he was diagnosed with diabetes.  Of the two VA examiners, one diagnosed no neuropathy and the other diagnosed neuropathy but opined that it was not related to diabetes.  However, the latter examiner did not provide a convincing rationale for this opinion and, in finding the Veteran's neuropathy idiopathic, declined to provide any alternative etiology.  In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's peripheral neuropathy was caused by his service-connected diabetes mellitus, type II.  Accordingly, the Board finds that granting service connection for diabetic peripheral neuropathy as secondary to the Veteran's service-connected diabetes is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case.  38 C.F.R. § 3.303(a).  


ORDER

Service connection for diabetic peripheral neuropathy is granted.  



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs