Citation Nr: 18155903 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 12-25 800 DATE: December 6, 2018 ORDER The claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, is granted. The claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, is granted. FINDING OF FACT The Veteran has a present diagnosis of diabetic neuropathy of the bilateral upper extremities, secondary to diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for establishing entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 1968 to December 1970. The Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal, among other commendations. He also had subsequent service in the National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The instant issues currently on appeal were previously before the Board in June 2015. The issue of entitlement to service connection for hearing loss was also before the Board at that time. The issues were remanded for further development. While the appeal was on remand, in an October 2017 rating decision, the RO granted service connection for hearing loss, effective as of April 25, 2013. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Board notes that, while the Veteran also provided testimony as to the issues of entitlement to an increased rating for his service-connected posttraumatic stress disorder (PTSD) and diabetes mellitus, as well as entitlement to service connection for hearing loss, tinnitus, and sleep apnea, the record reflects that these issues are currently not in appellate status. The record reflects that the Veteran is currently service connected for hearing loss and tinnitus. Thus, the issues have been stated accordingly on the title page.   Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Regarding the Veteran’s assertion that peripheral neuropathy of the bilateral upper extremities is the result of in-service exposure to an herbicide agent, although pertinent regulations provide that there are certain diseases that are associated with exposure to herbicide agents and may be presumed to have been incurred in service even though there is no evidence of the disease in service, the only type of peripheral neuropathy included amongst those diseases listed in 38 C.F.R. § 3.309(e) is early-onset peripheral neuropathy. See 38 C.F.R. §§ 3.307, 3.309. Notably, however, in this case, the evidence of record shows that the Veteran was not diagnosed with peripheral neuropathy of the bilateral upper extremities until many years after service. Thus, the peripheral neuropathy is clearly distinguishable from the early-onset peripheral neuropathy contemplated as a presumptive disease recognized as etiologically related to herbicide agent exposure. Regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Under 38 U.S.C. § 1116(b)(3), an association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against such an association. VA regulations provide that a veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). Here, the Veteran contends that he is entitled to service connection for peripheral neuropathy of the bilateral upper extremities. The Board observes that the Veteran specifically asserts that his peripheral neuropathy is due to herbicide agent exposure. See August 2010 claim. As an initial matter, as the record reflects that the Veteran served in Vietnam, the Board concedes herbicide exposure. Furthermore, the Board notes that the Veteran is service connected for diabetes mellitus, type II. As noted above, as the claimed disability is not one that is contemplated under 38 C.F.R. 3.309(e), the herbicide agent presumption for service connection does not apply. Furthermore, the Board finds that entitlement to service connection on a direct basis is not warranted as well. The medical evidence shows that the Veteran has a current diagnosis of neuropathy of the bilateral upper extremities. See February 2016 VA examination report. However, the preponderance of the evidence is against a finding of an in-service event, injury, or disease, or of a medical nexus between active service and the current disability. Concerning the in-service event, injury or disease, the medical evidence does not show that his neuropathy had its onset or manifested in service. Service treatment records reveal no complaints or diagnoses of peripheral neuropathy of the bilateral upper extremities. The December 1970 release from active duty examination noted that the Veteran’s upper extremities were deemed normal. As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the bilateral upper extremities at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran suffered from neuropathy of the bilateral upper extremities within one year of his separation from active duty. The February 1972 enlistment examination for the National Guard noted that the Veteran’s upper extremities were deemed normal; thus, the evidence confirms that the Veteran did not have a diagnosis of neuropathy of the bilateral upper extremities within one year of his separation from active service. As such, there is no lay or medical evidence of in-service onset of the Veteran’s peripheral neuropathy of the bilateral upper extremities. However, while neither the herbicide agent presumption nor service connection on a direct basis apply here, the Board is required to consider all theories pursuant to which service connection may be granted. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (VA is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). In this case, as previously indicated, the Veteran is currently service-connected for diabetes mellitus, type II. On VA examination in September 2017, the Veteran was diagnosed with diabetic peripheral neuropathy of his bilateral upper extremities. The preponderance of the evidence supports a finding that the Veteran’s current disability is etiologically connected to his service-connected diabetes mellitus, type II. As such, there is evidence of a present disability, evidence of diabetes mellitus, type II, and a nexus between the claimed disorder and diabetes mellitus, type II, sufficient to sustain secondary service connection. Accordingly, entitlement to service connection for peripheral neuropathy of the left upper extremity and peripheral neuropathy of the right upper extremity, both secondary to diabetes mellitus, type II, is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel