Citation Nr: 21063621 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 11-20 546 DATE: October 14, 2021 ORDER Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity is denied. FINDINGS OF FACT 1. The Veteran's diabetic peripheral neuropathy of the left lower extremity is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. 2. The Veteran's diabetic peripheral neuropathy of the left upper extremity is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. 3. The Veteran's diabetic peripheral neuropathy of the right lower extremity is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. 4. The Veteran's diabetic peripheral neuropathy of the right upper extremity is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetic peripheral neuropathy of the left lower extremity due to service or due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for diabetic peripheral neuropathy of the left upper extremity due to service or due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for diabetic peripheral neuropathy of the right lower extremity due to service or due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for diabetic peripheral neuropathy of the right upper extremity due to service or due to a service-connected disability, are not 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 served on active duty in the United States Army from September 1957 until his honorable discharge in April 1959. Subsequently, the Veteran served in the Puerto Rico Army National Guard until his retirement in December 1981 due to an injury sustained in August 1979 while he was on active duty for training. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the San Juan, Puerto Rico Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2018, April 2020, and May 2021, the Board remanded the case to the RO for further development. Specifically, the most recent Board remand directed the RO to obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran; and obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's bilateral upper and bilateral lower neuropathy. In response, in June 2021, the RO obtained updated VA treatment records and sent correspondence to the Veteran with a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). The Board notes that the Veteran did not return the forms provided. Subsequently, in August 2021, the RO obtained an addendum opinion from the VA examiner pertaining to the Veteran's disabilities on appeal. The Veteran is hereby notified that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Because the Veteran did not reply to the June 2021 correspondence, the Board will decide the issues on appeal based upon the evidence of record. Qualifying Service Active duty for training includes full-time duty with the National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. Inactive duty training includes service with the National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6 (d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (explaining that "members of the National Guard only serve the [F]ederal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor."). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of his or her state. "[M]embers of the National Guard only serve the Federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility as a veteran based on a period of duty as a member of a state National Guard, a guardsman must have been ordered into Federal service by the President of the United States under 38 U.S.C. §§ 316, 502, 503, 504, or 505. Hence, for the appellant's service in the National Guard, only periods of Federalized service are qualifying service for the purpose of VA compensation benefits. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). 1. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity 2. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity 3. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity 4. Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that bilateral upper and lower peripheral neuropathy is due to his service because he did not have the disabilities prior to active duty and later developed the disabilities. While there is evidence of a current disability, and while he is service-connected for several disabilities, including a depressive disorder, bilateral knee, hip and ankle conditions, lumbar and cervical spine conditions, tonsillitis, and pharyngitis, he is not service connected for diabetes mellitus. There is not medical nexus evidence establishing a connection between the Veteran's service-connected disability and the current disability. The Veteran has been afforded several VA examinations throughout the period on appeal. The November 2009 VA examiner opined that the Veteran's bilateral upper and bilateral lower neuropathy is less likely than not (less than 50 percent probability) related to his service-connected right knee disability because the disabilities have different [etiologies] and are therefore unrelated. The Veteran was afforded a second VA examination in December 2018. The December 2018 VA examiner opined that the Veteran's neuropathy was at least as likely as not (50 percent probability or greater) proximately due to or the result of the Veteran's service-connected disabilities. However, in the rationale, the December 2018 VA examiner explained that there is no evidence in the Veteran's service treatment records or statements to support a diagnosis of neuropathy while he was on active duty and noted that the complaints began around 1998 in the lower extremities which can be differentiated from the musculoskeletal complaints and that the Veteran has been a diabetic since 1998 and that the peripheral neuropathy is secondary to the Veteran's diabetes mellitus. Therefore, although the December 2018 VA examiner indicated that a positive nexus opinion, it is clearly noted that the opinion is based on secondary to his diabetes mellitus, for which he is not service-connected. The Veteran was afforded a third VA examination in November 2020. The November 2020 VA examiner opined that the peripheral neuropathy disability is caused by his diabetes mellitus, a nonservice connected disability. Furthermore, the examiner opined that the Veteran's bilateral upper and bilateral lower diabetic peripheral neuropathy was not aggravated beyond its natural progression because its etiology is only due to diabetes mellitus. The Veteran was afforded a fourth VA examination in August 2021 in which the Veteran asserted that he began having peripheral neuropathy in approximately 2006 (approximately 6 decades after service). The August 2021 VA examiner opined that the Veteran's bilateral upper and bilateral lower diabetic peripheral neuropathy is less likely than not (less than 50 percent probability) caused by or aggravated by his service-connected disabilities because medical evidence does not support the fact that having any of the above service-connected disabilities could possibly cause or aggravated his bilateral upper and bilateral lower diabetic peripheral neuropathy. The August 2021 VA examiner explained that the Veteran's bilateral upper and bilateral lower diabetic peripheral neuropathy are different disease entities that are completely unrelated to each other by anatomy and by pathophysiology and that diabetes mellitus is the most common etiology. Furthermore, the August 2021 VA examiner explained that the aggravating factor for diabetic peripheral neuropathy is having long standing hyperglycemia, which is critical for peripheral nerve damage and distal predominant nerve fiber degeneration. Given the fact that the overwhelming weight of the medical opinion evidence is against the claim, either on the basis of secondary causation or aggravation, entitlement to service connection on a secondary basis is denied. (Continued on the next page) As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim, and the record does not show that his diabetic peripheral neuropathy of the bilateral upper and bilateral lower extremities are directly due to his military service (beyond the general and vague claim that it started after service). In this regard, a review of the record on appeal does not show the Veteran being diagnosed with diabetic peripheral neuropathy of the bilateral upper and bilateral lower extremities while on active duty. See 38 C.F.R. § 3.303(a). Likewise, the record does not show the Veteran had a problem with diabetic peripheral neuropathy of the bilateral upper and bilateral lower extremities in and since service because the record does not reflect him being diagnosed with diabetic peripheral neuropathy of the bilateral upper and bilateral lower extremities until 2009; over 5 decades after service. See 38 C.F.R. § 3.303(b). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.