Citation Nr: 20045020 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 17-19 009 DATE: July 7, 2020 ORDER Entitlement to service connection for diabetes mellitus (diabetes) is granted. Entitlement to service connection for peripheral neuropathy of the upper right extremity is denied. Entitlement to service connection for peripheral neuropathy of the upper left extremity is denied. Entitlement to service connection for peripheral neuropathy of the lower right extremity is denied. Entitlement to service connection for peripheral neuropathy of the lower left extremity is denied. FINDINGS OF FACT 1. The Veteran has diabetes that is presumed to be related to conceded exposure to herbicide agents during his active military service in Vietnam. 2. The most probative evidence of record is against a finding that the Veteran has a current diagnosis of peripheral neuropathy of the upper right extremity. 3. The most probative evidence of record is against a finding that the Veteran has a current diagnosis of peripheral neuropathy of the upper left extremity. 4. The most probative evidence of record is against a finding that the Veteran has a current diagnosis of peripheral neuropathy of the lower right extremity. 5. The most probative evidence of record is against a finding that the Veteran has a current diagnosis of peripheral neuropathy of the lower left extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the upper right extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for peripheral neuropathy of the upper left extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for peripheral neuropathy of the lower right extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for peripheral neuropathy of the lower left extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to August 1968. He also served in Vietnam from October 1967 to August 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran appeared at a virtual hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is in the record. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as neuropathy. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Diabetes mellitus is listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309 (e). 1. Service connection for diabetes mellitus (diabetes) Evidence of record clearly establishes that the Veteran served in Vietnam. All veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. In addition, the Veteran has a current diagnosis of diabetes as documented by his private treatment notes of record. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Finally, the Veteran’s diabetes is presumed to have been caused by his conceded Agent Orange exposure. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In view of the foregoing discussion, the Board concludes that service connection for diabetes is warranted 2. Service connection for peripheral neuropathy of the upper right extremity 3. Service connection for peripheral neuropathy of the upper left extremity 4. Service connection for peripheral neuropathy of the lower right extremity 5. Service connection for peripheral neuropathy of the lower left extremity The Board has grouped these issues together as the claimed disabilities are similar in nature and the Board’s analysis is the same. At his March 2020 hearing, the Veteran testified that he feels pins and needles in his legs and hands. This sometimes affects him such as when he cannot grip objects. He contends his diabetes has caused peripheral neuropathy in the bilateral upper and lower extremities. The Veteran’s service treatment records do not indicate a diagnosis of or complaints of peripheral neuropathy or symptomatology affecting the peripheral nerves. Additionally, the most recent medical evidence of record indicates the Veteran has a diagnosis of diabetes without complications and does not demonstrate complaints of or treatment for peripheral neuropathy. See Private Medical Records received March 20, 2020. One of the requirements for service connection is that the claimed disability currently exists. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The Board concludes that the record does not contain competent and credible evidence of a peripheral nerve disability at any point during the claims period or shortly before the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board recognizes that in some instances, a symptom, by itself, may become a service-connected disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (finding pain resulting in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability). While the Veteran has reported pins and needles feelings in each extremity, the evidence is against a finding that such symptoms cause functional impairment of earning capacity. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., his pins and needles pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). As a lay person, the Veteran is not competent to diagnose a neurological disability as that is a medically complex issue. Again, no peripheral neuropathy disability had been diagnosed, and the evidence is against a finding that he has complications arising from his diabetes. In sum, the Board finds that the criteria required to demonstrate entitlement to service connection are not met. There is no indication of a peripheral nerve disability in service or that the Veteran has been diagnosed with a peripheral nerve disorder that is at least as likely as not secondary to his now service-connected diabetes. (Continued on next page) Because the preponderance of the probative evidence is against the claims, service connection for peripheral neuropathy of the upper and lower bilateral extremities, to include as secondary to diabetes, must be denied. Carrie B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, Counsel