Citation Nr: 1807130 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-47 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as secondary to the service-connected disabilities. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus type II. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus type II. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran had active military service from December 1964 to December 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2015, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. The appeal has now been returned to the Board. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). Additional pertinent medical evidence was submitted into the record following the most recent readjudication of this appeal by the AOJ in the November 2017 Supplemental Statement of the Case (SSOC). To date, this evidence has not been reviewed by the AOJ, and no waiver from the Veteran or his representative was received. However, the Board finds that the Veteran is not prejudiced by this lack of review by the AOJ, as the claims are being granted in full. 38 C.F.R. §§ 20.800, 20.1304 (2017). This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems. The Board recognizes that the Veteran attempts to raise the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for erectile dysfunction, as secondary to the now service-connected diabetes mellitus type 2 in a statement dated in June 2017. The Veteran is advised that a claim for benefits must be submitted on the application form prescribed by the VA Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence of record favors a finding that the Veteran's diabetes mellitus type II was caused by his service-connected lung cancer and service-connected liver cancer. 2. The evidence of record favors a finding that the Veteran's peripheral neuropathy of the left lower extremity was caused by his service-connected diabetes mellitus type II. 3. The evidence of record favors a finding that the Veteran's peripheral neuropathy of the right lower extremity was caused by his service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for diabetes mellitus type II, as secondary to the service-connected lung cancer and service-connected liver cancer, is granted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The claim of entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to the service-connected diabetes mellitus type II, is granted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to the service-connected diabetes mellitus type II, is granted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determinations in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that the disorders on appeal are secondary to his service-connected disabilities. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. The Board will begin by addressing the diabetes mellitus claim. On VA examination in November 2016, the Veteran was diagnosed with diabetes mellitus type II. The Veteran is already service-connected for lung cancer and liver cancer. The only medical nexus opinions regarding secondary service connection are positive. Specifically, in an October 15 Disability Benefits Questionnaire (DBQ), Dr. F.P., the Veteran's treating private physician, opined that the Veteran started having diabetes after undergoing chemotherapy for his cancer in 1998. Since then, he has been on diabetes mellitus medication for treatment. In a December 2017 medical opinion, Dr. F.P. reviewed the Veteran's "after service treatment records" and determined that it was at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus type 2 was proximately due to or the result of the Veteran's service-connected lung cancer and liver cancer. Dr. F.P. reasoned that the Veteran suffered from liver and lung cancer in 1996. During his several treatments of chemotherapy, he developed diabetes-induced chemotherapy. He underwent chemotherapy for almost a year. After his initial treatment, he developed diabetes mellitus type II and was started on oral hypoglycemic medications, which he continues to take. Dr. F.P. stated that it is known that cancer and cancer treatment can bring about metabolic changes that cause and aggravate symptoms of diabetes. Dr. F.P. concluded that the Veteran's timing of his onset of diabetes was proof that it is a secondary service connection condition from his liver cancer that was diagnosed a year after his military service. This positive medical evidence is also supported by the Veteran's competent and credible lay statements describing the onset of his diabetes mellitus type II. There are no negative medical opinions of record that specifically address secondary service connection. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Here, the Board finds that the preponderance of the evidence is in favor of the claim for service connection. As such, the claim of entitlement to service connection for diabetes mellitus type II, as secondary to the service-connected liver cancer and lung cancer, is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board will now address the peripheral neuropathy claims. In an October 2015 DBQ, Dr. F.P. diagnosed the Veteran with diabetic peripheral neuropathy. In May 2017 and December 2017 medical opinions, Dr. F.P. diagnosed the Veteran with peripheral neuropathy. A March 2017 VA treatment record documents a diagnosis of diabetes mellitus neuropathy following the Veteran's complaints of burning and tingling pain in his feet and bilateral lower extremities. The Board notes that at the November 2016 VA examination, the VA examiner found that there was insufficient evidence to warrant or confirm a diagnosis of the claimed diabetic peripheral neuropathy in the bilateral lower extremities. However, the examiner did not consider the private diagnoses in forming this opinion, and nerve conduction studies were not performed at the examination. Thus, in giving the Veteran the benefit of the doubt, the Board finds that the Veteran has a current diagnosis of peripheral neuropathy of the bilateral lower extremities. The Veteran is also now service-connected for diabetes mellitus type II. Regarding a medical nexus opinion addressing secondary service connection, in an October 2015 DBQ, Dr. F.P. found that the Veteran had diabetic peripheral neuropathy as a complication of his diabetes mellitus type II. In May 2017 and December 2017 medical opinions, Dr. F.P. again found that the Veteran's peripheral neuropathy was a complication from his diabetes mellitus type II. The positive medical evidence is also supported by the Veteran's competent and credible lay statements describing the onset of his peripheral neuropathy. The Board notes that the November 2016 VA examiner found that the Veteran did not have any complications from his diabetes mellitus type II; however, the examiner based this opinion on the fact that the Veteran did not have a current diagnosis of peripheral neuropathy of the bilateral lower extremities. As stated above, the Veteran does have a current diagnosis of peripheral neuropathy of the bilateral lower extremities, and thus this opinion is provided low probative value. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Here, the Board finds that the preponderance of the evidence is in favor of the claims for service connection. As such, the claims of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to the service-connected diabetes mellitus type II, are granted. See Gilbert, 1 Vet. App. at 55. ORDER The claim of entitlement to service connection for diabetes mellitus type II, as secondary to the service-connected lung cancer and liver cancer, is granted. The claim of entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to the service-connected diabetes mellitus type II, is granted. The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to the service-connected diabetes mellitus type II, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs