Citation Nr: 21000762 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-03 959 DATE: January 6, 2021 ORDER Entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper extremities, as due to service-connected Type 2 diabetes mellitus (DM-2), is granted. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral lower extremities, as due to service-connected DM-2, is granted. FINDINGS OF FACT 1. The Veteran was diagnosed with DM-2 at least as early as September 2014, and later was granted service connection for this disability on a presumption basis due to exposure to herbicidal agents. 2. The evidence of record shows that the Veteran was diagnosed with and treated by VA medical providers for diabetic peripheral neuropathy of each of his bilateral upper and lower extremities. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetic peripheral neuropathy of the bilateral upper extremities, secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. § 3.102, 3.303, 3.310. 2. The criteria for service connection for diabetic peripheral neuropathy of the bilateral lower extremities, secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1958 to April 1962 and from July 1962 to July 1988 and is a veteran of the Vietnam and Peacetime Eras. This matter returns to the Board of Veterans’ Appeals (Board) from an October 2019 remand (2019 Board Remand) in which the Board requested additional medial opinions on whether: (1) the Veteran’s bilateral upper extremity peripheral neuropathy was directly related to his military service, (2) the Veteran’s bilateral lower extremity peripheral neuropathy was directly related to his military service, (3) the Veteran’s bilateral lower extremity peripheral neuropathy is proximately due to or the result of his service-connected DM-2, and (4) the Veteran’s service-connected DM-2 aggravated (permanently worsened) his peripheral neuropathy of the bilateral lower extremities. The Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ) obtained these requested additional medical opinions and thereafter issued a December 2019 Supplemental Statement of the Case (SSOC) which continued the denial of the Veteran’s claims. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, as due to service-connected DM-2. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as due to service-connected DM-2. The Veteran claims entitlement to service connection for peripheral neuropathy of each of his bilateral upper and lower extremities, including as due to his service-connected DM-2. The Veteran was diagnosed with DM-2 in September 2014. The Veteran was noted to be formally diagnosed with peripheral neuropathy in both his bilateral upper and lower extremities as part of his June 2018 VA examination. However, other entries in his prior medical history do indicate his having been diagnosed with and treated for diabetic peripheral neuropathy as early as October 2014. As the Veteran does have a current diagnosis for the claimed disabilities, the question which remains is whether he is entitled to service connection for those disabilities. Service connection will be granted on a direct basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: “(1) the existence of a present disability, (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). Lay witnesses, such as the Veteran himself, are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Evidence of Record. The Veteran’s military service medical treatment records (STRs) do not contain any complaints of, further diagnosis of, or treatment for any either DM-2 or peripheral neuropathy in any of his extremities. Nor are there any records which indicate any such problems or symptoms in the year after his retirement from the military. The Veteran, as a military retiree, received medical care though military medical facilities, including O.M.C., and K.M.C. It was though medical treatment at O.M.C., that he was first diagnosed with DM-2, and thereafter he treated primarily at K.M.C. for his DM-2, which included treatment for diabetic neuropathy. He was referred to follow-on specialist consultations, such as endocrinology, podiatry, and neurological, for treatment with complications from his DM-2 including diabetic neuropathy. One October 2014 treatment note from a K.M.C. medical provider that the Veteran had a long history of neuropathy “which may be from DM-2.” The VA examiners who provided opinions responsive to the Board’s Remand all provided negative nexus opinions as to whether service connection for the Veteran’s peripheral neuropathy could be established on a direct basis, as secondary to his DM-2, and/or as it being aggravated beyond its natural progression by his DM-2, for each of his bilateral upper and lower extremities. However, the Board finds each of these opinions to be inadequate and of little probative value as they did not fully address the Veteran’s long-standing and numerous notes of treatment for diabetic neuropathy with both military medical staff at K.M.C. and VA medical providers. Several of the VA examiners based their opinions on the fact that there were a few references to the Veteran seeking treatment for symptoms which could be related to peripheral neuropathy prior to his formal diagnosis of DM-2. This includes, as an example, VA treatment records which indicate the Veteran started treatment through VA facilities in December 2002 when he sought treatment for, among other complaints, burning pain and numbness on right anterior thigh. No specific diagnosis was given at that time and he was referred for a neurological consult. While several opinions suggested that his peripheral neuropathy started prior to his DM-2, and therefore it could not be a secondary condition due to, or aggravated beyond its natural progression, by his later diagnosed DM-2. Yet, one examiner’s negative nexus opinion stated: There is no clear evidence that the neuropathy was truly preexisting prior to diabetes or that the neuropathy represents a separate disease process. The basis for neuropathy being a pre-existing condition are based on the Veteran’s subjective reports of symptoms prior to diagnosis of diabetes. However, there is no other established etiology of the Veteran’s symptoms (including no evidence of vascular disease as demonstrated by normal ABI), diabetic neuropathy was diagnosed by KMC Medical Team as well as Podiatry and there is also evidence in the medical literature that diabetic neuropathy may occur prior to onset of diabetes The Board finds this opinion to be somewhat confusing, and that the VA examiners did not adequately address the numerous treatment notes and diagnoses from the Veteran’s medical care providers, both through the military health care system and VA, which do indicate the Veteran does or likely has diabetic neuropathy. While these notes and diagnoses are not direct opinions concerning service connection, the diagnoses themselves indicate that they are secondary to the diabetes mellitus, which is service connected. The Board must weigh the evidence and where the evidence in equally balanced, must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Based on its review of the entire record, the Board finds that the evidence is at least in relative equipoise and therefore decides the matter in the Veteran’s favor. The claims for entitlement to service connection for both bilateral upper and lower extremity diabetic peripheral neuropathy, as due to his service-connected DM-2 on a secondary basis, are granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate 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.