Citation Nr: 20028056 Decision Date: 04/28/20 Archive Date: 04/22/20 DOCKET NO. 13-17 403 DATE: April 28, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, as secondary to service-connected diabetes mellitus, type 2, is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to service-connected diabetes mellitus, type 2, is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during service. 2. The Veteran’s peripheral neuropathy of the bilateral upper and lower extremities was not present in service, was not present to a compensable degree within one year of service discharge, and is not shown to be related to service, to include as due to herbicide exposure. 3. The Veteran’s peripheral neuropathy of the bilateral upper extremities is proximately due to his service-connected diabetes mellitus, type 2. 4. The Veteran’s peripheral neuropathy of the bilateral lower extremities is proximately due to his service-connected diabetes mellitus, type 2. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, as secondary to service-connected diabetes mellitus, type 2, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to service-connected diabetes mellitus, type 2, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1965 to October 1968. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In August 2017, the Board remanded this appeal for additional development. In a January 2019 decision, the Board denied these issues, as well as entitlement to service connection for a skin disorder. The issue of entitlement to service connection for a right testicle disorder was remanded. The Veteran appealed the January 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a December 2019 Order, the Court granted a Joint Motion for Remand (JMR), which partially vacated the January 2019 Board decision and remanded the issues to the Board for development consistent with the JMR. Of note, the Veteran did not challenge the Board’s denial of entitlement to service connection for a skin disorder. The issue of entitlement to service connection for a right testicle disorder is pending development on remand and has not been certified to the Board; as such, it is not before the Board at this time. Service Connection 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all 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 Appellant. See Masors v. Derwinski,2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic diseases” in 38 C.F.R.§3.309(a). When considering whether lay evidence is 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). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A Veteran who served in Vietnam is presumed to have been exposed to herbicides during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active service, certain diseases, including early-onset peripheral neuropathy, are deemed service connected. 38 C.F.R. § 3.309(e). However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044(Fed. Cir. 1994). Early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval or air service. 38 C.F.R. § 3.307(a)(6)(ii). As noted by the RO, the Veteran served in the Republic of Vietnam from May 1966 to May 1967, as documented in his service personnel records; therefore, he is presumed to have been exposed to herbicides. The Board notes that the Veteran has requested his VA examinations to be rescheduled, as he stated he was not notified of their time and was therefore unable to attend. See November 2018 Report of Contact. Importantly, however, the August 2017 Board remand requested addendum medical opinions, not full examinations, and there is no evidence that the VA examiners required additional in-person examinations in order to provide the requested medical opinions. Additionally, given the favorable outcome of this decision, the Board finds that a remand to reschedule the medical examinations is not necessary. Turning to the evidence of record, the Veteran has a diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. See February 2009 and May 2019 VA examinations. As such, element (1) set forth under Allen, current disability, has been satisfied. Next, the Board notes the Veteran was recently granted entitlement to service connection for diabetes mellitus, type 2. See May 2019 rating decision. The Board finds that the evidence indicates the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities is proximately due to his diabetes mellitus, type 2. As noted, in the May 2019 VA examination, the Veteran was specifically diagnosed with bilateral upper and lower extremity “diabetic neuropathy” and the VA examiner stated that the cause of the diabetic peripheral neuropathy was his diabetes mellitus, type 2. There are no medical opinions to the contrary, of record. The Board finds no adequate basis to reject the favorable evidence of record, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that element (2) under Allen, nexus, has been satisfied and the appeal is granted, on a secondary basis. Although this appeal is granted on a secondary basis, given that these issues were the subject of the December 2019 JMR, the Board will discuss why service connection is not warranted on a direct basis. The Veteran asserts his peripheral neuropathy of the bilateral upper and lower extremities had an onset during or within a year after discharge from service and is due to exposure to herbicides. Service treatment records are void of any symptoms or diagnoses of peripheral neuropathy. The Veteran’s separation examination from August 1968 did not note any neurologic abnormalities. Importantly, as noted previously, however, exposure to herbicides during service is conceded. Post-service medical evidence of record, however, first demonstrates findings of peripheral neuropathy in approximately January 2003, more than thirty years after service, at which time the Veteran was assessed with polyneuropathy of an unclear etiology. Of note, the passage of many years between discharge from active service and medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The Veteran was afforded a VA examination in February 2009. The Veteran reported symptoms that occurred since 1967, including numbness, abnormal sensation, pain and weakness. He was diagnosed with peripheral neuropathy of the bilateral upper and lower extremities. A VA medical opinion was obtained in February 2018. The examiner opined that the Veteran’s neuropathy was less likely than not related to service. The examiner noted that in a 2009 VA examination, the Veteran reported symptoms since 1967, however, the Veteran’s separation examination from 1968 did not note any neurological abnormalities. The examiner also noted that there were no records that documented a diagnosis of neuropathy within a year or even a few years after separation from service. The examiner then opined that the Veteran’s neuropathy was less likely than not due to exposure to herbicides during service. Explaining, the examiner stated that the Veteran’s neuropathy was mainly sensory neuropathy in a stocking and glove distribution. The 2018 examiner noted that given that the Veteran has prediabetes/impaired glucose tolerance and peripheral neuropathy resulting from toxic exposure usually affects nerve fibers in a symmetric pattern, the examiner opined that it is less likely than not that the Veteran’s peripheral neuropathy was due to exposure to herbicides. The examiner noted that neuropathy was earlier thought to be the result of advanced diabetes, however, recent reports suggest that neuropathy can occur in the early stage of pre-diabetes. The examiner provided a complete rationale for the stated opinion, citing to a detailed review of the evidence of record, as well as finding other etiologies or recognized risk factors causing the claimed disorder. As such, the Board considers this medical opinion to be of great probative value in this appeal. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (finding that it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93(1992)); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (noting that the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, the Veteran has not provided documented evidence of a medical opinion that directly contradicts the conclusions reached by the examiner in the February 2018 VA examination report. In addition, the Board notes that the 2018 opinion further supports the more recent diagnosis of diabetic neuropathy, for which the Board is granting service connection. The only evidence of record which relates the Veteran’s claimed disorders to his active military service are his own statements. The Veteran’s statements are competent evidence as to observable symptomatology, including numbness and pain. See Barr, 21 Vet. App. at 307. However, the Veteran’s statements that his current peripheral nerve disorder was incurred during or as a result of active service is a medical conclusion which the Veteran is not qualified to make. Although lay statements are competent evidence to provide opinions on some medical issues, the etiology of the Veteran’s claimed peripheral nerve disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Moreover, the February 2018 VA examiner considered the Veteran’s statements when providing the aforementioned medical examination reports and concluded that his disorders are not likely due to his time service. Additionally, the Veteran has offered conflicting statements as to the onset of his neuropathy symptoms. For example, he testified in August 2017 that he began experiencing symptoms after discharge from service, in “probably” 1969 or 1970. He asserts he thought at the time it was a pinched nerve and he sought treatment from a chiropractor. The Veteran reports that he then went to a neurologist, who stated his symptoms could be caused by a toxin. However, in the February 2009 VA examination, the Veteran reported his symptoms began during service, in 1967, and in an August 2010 RO Hearing, the Veteran testified that his symptoms began “shortly after” he was discharged from service. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, records obtained do not show any treatment or diagnosis within a year of discharge from service and do not contain any documented medical opinions relating the Veteran’s disorder to in-service herbicide exposure. The Veteran’s lay statements are not supported but in fact contradicted by a later diagnosis by a medical professional. Given the Veteran’s inconsistent statements as to the onset of his neuropathy symptoms, the Board finds his recollections as to experiencing symptoms during service or within a year after service are unreliable and therefore cannot be deemed credible to substantiate that the Veteran experienced symptoms in service and ever since service. Furthermore, as noted, there is no objective medical evidence that the Veteran experienced symptoms during or within a year after service. Therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service do not apply here. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-39. Accordingly, service connection on a direct or presumptive basis for peripheral neuropathy of the upper and lower extremities, to include as due to in-service exposure to herbicides, is not warranted. The evidence of record does not establish either on a direct or presumptive basis that the Veteran’s claimed peripheral nerve disorder was caused by his military service or his exposure to herbicides. In conclusion, the Board finds that the Veteran is entitled to service connection for peripheral neuropathy of the bilateral upper and lower extremities, on a secondary basis as proximately due to his diabetes mellitus, type 2, rather than on a direct or presumptive basis. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.