Citation Nr: 18106981 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-03 414 DATE: June 1, 2018 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. Entitlement to service connection for right lower extremity peripheral neuropathy is granted. Entitlement to service connection for right upper extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the Veteran’s left upper extremity peripheral neuropathy is etiologically related to active military service. 2. Affording the Veteran the benefit of the doubt, the Veteran’s left lower extremity peripheral neuropathy is etiologically related to active military service. 3. Affording the Veteran the benefit of the doubt, the Veteran’s right upper extremity peripheral neuropathy is etiologically related to active military service. 4. Affording the Veteran the benefit of the doubt, the Veteran’s right lower extremity peripheral neuropathy is etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from September 1963 to September 1967, including active service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Service Connection The Veteran contends that his bilateral upper and lower extremity peripheral neuropathy disabilities are due to his service-connected diabetes mellitus, type II. Alternatively, the Veteran alleges that his claimed disabilities are directly related to his active military service, including in-service herbicide exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). 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). 1. Entitlement to service connection for left upper extremity peripheral neuropathy. 2. Entitlement to service connection for left lower extremity peripheral neuropathy. 3. Entitlement to service connection for right upper extremity peripheral neuropathy. 4. Entitlement to service connection for right lower extremity peripheral neuropathy. For purposes of background, the Veteran’s entry and exit examinations in 1963 and 1967, respectively were deemed normal without any report of tingling, numbness, or burning sensation to any of his limbs. The claims file also includes private treatment records from August 2012, which reflect that the Veteran sought care for periodic numbness in his hands and feet bilaterally. The physician’s initial impression reflected the symptomatology of neuropathy as well as early peripheral artery disease. On examination in July 2014, the Veteran reported experiencing numbness and tingling in his hands and upper arms since 1969, with a worsening of his condition beginning in 2011. Additionally, the Veteran reported fleeting numbness and tingling in his legs which he specifically recalled while riding his bicycle. The examiner opined that the Veteran did not hold a diagnosis of upper and/or lower extremity peripheral neuropathy because he only suffered from intermittent numbness and tingling. Moreover, the examiner found that the Veteran had full sensation to his plantar feet and toes on the examination. Lastly, the examiner stated that the Veteran’s claimed neuropathy was not due to his diabetes mellitus, type II diagnosis as he alleged his nerve issues began prior to his diabetes diagnosis, and that any right upper extremity issues may have been due to a C7 radiculopathy found on an electromyogram (EMG) study in September 2013. The August 2014 VA treatment records encompass a medical assessment and plan for diabetes mellitus, type II, hypertension, and neuropathy without any further description or explanation. Subsequent VA treatment records document that the Veteran had progressive muscle weakness, stable tingling and numbness of his distal extremities. The clinician indicated that the Veteran’s neuropathy was likely secondary to the psychological feeling of being exposed to Agent Orange, but there was no physical deficit identified on examination. At this point, the Board has confirmed that the Veteran had in-service herbicide exposure, and a current diagnosis of neuropathy. Thus, the issue remaining before the Board is whether that disability is related to active military service. The Veteran testified at a February 2018 hearing before the undersigned Veterans Law Judge (VLJ), where he and his representative argued that the 2014 examiner failed to consider the lay testimony and symptoms reported at his examination in determining whether any alleged peripheral neuropathy is directly related to his in-service herbicide exposure. Further, the Board finds that the July 2014 examination is inadequate with regards to the Veteran’s secondary service connection theory of entitlement, because while the examiner specified that the Veteran’s neuropathy was not due to diabetes mellitus, type II, the examiner failed to discuss whether his diabetes mellitus, type II aggravated the condition beyond the natural progress of the disability. In response to that examination, the Veteran’s private physician submitted an April 2018 statement confirming that not only did the Veteran possess a diagnosis of neuropathy, but that his condition had progressed. The physician opined that the Veteran’s neuropathy is directly related to military service, and specifically the Veteran’s in-service herbicide exposure. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). To this end, the Board finds that the Veteran’s description of his symptoms and functionality to be credible and competent evidence pertinent to the success of the claim, particularly as it relates to the Veteran’s consistent report of numbness and tingling of his bilateral upper and lower extremities since 1969. The medical evidence of record confirms a current diagnosis of neuropathy in the Veteran’s hands and feet, and his private physician attributes that condition to the Veteran’s active military service with consideration of the facts and circumstances of his service. Accordingly, the Board finds that despite the negative VA examination, the evidence is in at least equipoise. The private medical opinion considered in conjunction with the Veteran’s lay contentions are sufficiently probative to warrant a grant of the benefits sought on appeal. Therefore, entitlement to service connection is warranted for the Veteran’s peripheral neuropathy of the bilateral (right and left) upper and lower extremities. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel