Citation Nr: 20045231 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 17-58 841 DATE: July 8, 2020 ORDER Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected diabetes mellitus, is granted. FINDING OF FACT The Veteran’s peripheral neuropathy is proximately due to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy as secondary to service-connected diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1969 to October 1970. This matter comes before the Board from an August 2017 rating decision. In February 2020, the Veteran testified at a live videoconference before the undersigned. A transcript of the hearing has been added to the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases 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 or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Relevant laws and regulations provide that absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides agents (to include Agent Orange) for all Veterans who served in Vietnam or in or near the Korean Demilitarized Zone (DMZ) during specified periods of time. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In the instant case, the Veteran served in the Republic of Vietnam during the required time period, therefore, the Veteran’s in-service exposure to herbicide agents has been conceded. If a Veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases if they become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). However, early onset peripheral neuropathy must become manifest to a degree of 10 percent or more within one year of the last exposure. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected diabetes mellitus is granted. The Veteran contends that he has peripheral neuropathy as a result of in-service exposure to an herbicide agent. Alternatively, he contends that his peripheral neuropathy is proximately due to or was aggravated beyond its natural progression by, his service-connected diabetes mellitus. The issue of exposure to an herbicide agent will not be addressed in this decision because the evidence shows that the Veteran suffers from peripheral neuropathy which is proximately caused by his service-connected diabetes mellitus and his claim can be granted in full on this basis. Evidence in support of the Veteran’s claim consists of VA treatment records from April 2017 through the present which show a consistent diagnosis of diabetic neuropathy, often listed as “diabetes with neuropathy.” An April 2017 VA examiner assessing the severity of the Veteran’s diabetes mellitus diagnosed diabetic peripheral neuropathy and an April 2017 VA examiner assessing the Veteran’s symptoms for inclusion in the Agent Orange Registry noted the Veteran’s complaint of neuropathy to bilateral feet, mild. Physical examination for the Agent Orange Registry examination showed mild decreased sensation to bilateral feet to light touch. An August 2017 letter from a treating doctor stated that the Veteran was being seen for diabetes mellitus since May 2016 and had symptoms consistent with neuropathy. A December 2017 VA treatment record shows that the Veteran was assessed for special orthotic footwear to “support protect for diabetic neuropathy foot condition.” In November 2019 a VA podiatry examination for diabetic footcare noted epicritic protective sensation grossly diminished bilaterally via 5.07 Semmes Weinstein monofilament testing. Evidence against the Veteran’s claim consists of an August 2017 VA examination to determine the nature and etiology of any diabetic sensory-motor peripheral neuropathy and a September 2017 addendum opinion from the same VA examiner. This examiner tested light touch sensation, position sense, vibration sensation and cold sensation on all four extremities and found all within normal limits. Based on that testing, the examiner opined that the Veteran did not have a diabetic neuropathy condition and that his history of varying vitamin B-12 levels was a more likely cause of his previously reported symptoms. An addendum opinion was sought to address the conflicting medical evidence and to address the issue of whether or not the Veteran’s diabetes mellitus aggravated his peripheral neuropathy beyond its natural progression. A September 2019 addendum opinion stated that “available medical evidence was reviewed” and restated that the Veteran did not currently have a diagnosis of diabetic neuropathy or neuropathy. The addendum opinion did not specifically mention any conflicting evidence or provide further rationale for discounting it. Since the examiner found no current diagnosis, they stated that they could not opine on the issue of aggravation by diabetes mellitus without resorting to mere speculation. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran has currently diagnosed peripheral neuropathy which is proximately due to his service-connected diabetes mellitus. Specifically, the Board finds that the negative VA opinions failed to directly address the conflicting evidence showing that the Veteran did have a diagnosis of diabetes with neuropathy. Testing performed in April 2017 and November 2019, both before and after the August 2017 testing that supported the negative opinions, showed reduced sensation to light touch in the Veteran’s bilateral feet. Furthermore, continuing treatment records show that he consistently reported symptoms and received special orthotic shoes to address the condition. The Board finds that this consistent treatment for a diagnosis, specifically diabetic neuropathy, over several years is at least as probative as the negative opinion based on a single instance of testing. (Continued on the next page)   Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for peripheral neuropathy, as secondary to diabetes mellitus, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Julie C. Unger Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.