Citation Nr: 18148229 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-13 552 DATE: November 7, 2018 ORDER Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus is granted. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus is granted. FINDINGS OF FACT 1. The Veteran is service-connected for diabetes mellitus, which is presumptively related to herbicide exposure during active duty. 2. The Veteran has a current diagnosis of left and right lower extremity diabetic peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, secondary to diabetes mellitus, are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2018). 2. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, secondary to diabetes mellitus, are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to January 1972 and from March 1985 to August 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Service Connection Veterans are entitled to VA disability compensation benefits if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, 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 service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus is granted. 2. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus is granted. The Veteran claims entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to his service-connected diabetes mellitus. The Veteran’s claims of entitlement to service connection for bilateral peripheral neuropathy were originally denied in an August 2012 rating decision. The Veteran filed a timely notice of disagreement, and a statement of the case (SOC) was issued in February 2015. A substantive appeal was then filed in April 2015. However, after the issuance of the SOC, the Veteran was afforded a VA examination to assess the nature and etiology of his bilateral lower extremity peripheral neuropathy in June 2015. While the Board recognizes that no supplemental statement of the case was issued following that VA examination, per 38 U.S.C. § 7105(e), this procedural failure constitutes harmless error, as the Veteran’s claims are granted herein. The Veteran has current diagnoses of left and right lower extremity peripheral neuropathy. See June 2015 VA examination. Thus, the requirements of the first Wallin element are met. Further, he is service-connected for diabetes mellitus. The requirements of the second Wallin element are therefore also satisfied. What remains is to establish whether the Veteran’s peripheral neuropathy is related to his service-connected diabetes mellitus. The Board recognizes that there is a negative medical opinion of record as to that question. Specifically, in a July 2012 VA examination, the VA examiner opined that the Veteran’s neuropathy is not related to his service-connected diabetes mellitus. The examiner’s rationale was essentially that the Veteran’s diabetes is well-controlled, and electromyography (EMG) findings showing peripheral neuropathy are “not specific for diabetes mellitus.” However, this opinion is not shown to have been based on an in-person examination or a thorough review of the Veteran’s claims file. Furthermore, the examiner’s rationale does not explain why an EMG that is not diabetes-specific would affect the etiological conclusion. Therefore, the Board affords this opinion minimal probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). Rather, the Board affords significant probative weight to the latest VA examination of record dated in June 2015. This examination was based on an in-person evaluation of the Veteran, and the examiner’s opinion is supported by a well-reasoned rationale. Indeed, the June 2015 VA examination confirms the Veteran’s diagnosis of bilateral lower extremity peripheral neuropathy. Pertinently, the examiner characterized the Veteran’s peripheral neuropathy as “diabetic” in nature and opined that it is most likely caused by or a result of military service. The examiner reasoned that the Veteran has a positive EMG for peripheral neuropathy, he was exposed to herbicide agents in service and is service-connected for diabetes mellitus, and he has had elevated glucose levels since the late 1980s. Furthermore, the examiner states that as the Veteran had hyperglycemia since the late 1980’s, “he has had time to develop diabetic peripheral neuropathy” – and indeed has done so as reflected by an EMG finding as early as 2012. In summary, the Veteran meets all three elements of service connection for left and right lower extremity diabetic peripheral neuropathy on a secondary basis, as there is a current diagnosis of bilateral lower extremity peripheral neuropathy, and a nexus between the current disabilities and service-connected diabetes mellitus. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for right and left lower extremity peripheral neuropathy have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claims for service connection for peripheral neuropathy in the left and right lower extremities are granted. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel