Citation Nr: 21065966 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-01 561 DATE: October 28, 2021 ORDER 1. Entitlement to service connection for left upper extremity diabetic peripheral neuropathy is granted. 2. Entitlement to service connection for right upper extremity diabetic peripheral neuropathy is granted. 3. Entitlement to service connection for left lower extremity diabetic peripheral neuropathy is granted. 4. Entitlement to service connection for right lower extremity diabetic peripheral neuropathy is granted. 5. Entitlement to service connection for a right shoulder disability is denied. 6. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. It is reasonably shown by competent (medical) evidence that the Veteran has peripheral neuropathy of both upper and both lower extremities as a complication of his service-connected diabetes. 2. The preponderance of the evidence is against a finding that any right shoulder or right hip disability is etiologically related to the Veteran's active-duty service. CONCLUSIONS OF LAW 1. Service connection for peripheral neuropathy of both upper and both lower extremities is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. Service connection for a right shoulder disability is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. 3. Service connection for a right hip disability is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1976 to August 1992, on active duty for training (ACDUTRA) from November 1993 to March 1994, and on active duty from June 2004 to November 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2015 and December 2015 Department of Veterans Affairs (VA) rating decisions that denied reopening of the claims of service connection for the disabilities at issue. In May 2019, a hearing in these matters was held before the undersigned; a transcript is in the record. In September 2019 the Board reopened each of the claims, and remanded them for further development. Service Connection Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (such as arthritis) may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after service (one year for arthritis). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic disease listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity of symptomatology. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be established for a disability which is proximately due to, or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). Peripheral neuropathy of both upper and both lower extremities The Veteran asserts that he has neuropathy of both upper and both lower extremities that is a complication of his service-connected diabetes. A November 2016 rating decision granted service connection for diabetes. The Veteran's treatment records show that he [first] received a diagnosis of diabetic neuropathy in February 2015. On a November 2015 Diabetes Mellitus Disability Benefits Questionnaire (DBQ), the Veteran's physician indicated that complications of his diabetes included diabetic neuropathy. On December 2016 VA examination, the Veteran reported that he started to have neuropathy symptoms about four years prior. On review of the claims file, and interview and examination of the Veteran, the examiner noted that there was insufficient clinical evidence to warrant a diagnosis of neuropathy of any extremity. On an April 2018 DBQ, the Veteran's physician stated that the Veteran's peripheral neuropathy of all four extremities was related to his diabetes. The provider indicated that the Veteran had moderate constant pain and numbness in all four extremities attributable to diabetic neuropathy. On February 2020 VA examination, upon review of the Veteran's claims file, and interview and examination of the Veteran, diabetic neuropathy of all four extremities was diagnosed. The examiner noted that an October 2019 NCS showed mild peripheral neuropathy, and opined that the Veteran's diabetic neuropathy of all four extremities was at least as likely as not due to his diabetes. On December 2020 VA examination, upon review of the Veteran's claims file, and interview and examination of the Veteran, the examiner opined that the Veteran's neurological complications of all four extremities was less likely than not due to diabetes or his lumbar spine disability. In January 2021, the December 2020 VA examiner again reviewed the Veteran's claims file. The provider observed that the claims file did not show any clinical evidence of peripheral neuropathy. The examiner noted that while the Veteran reported having burning sensation in his hands and feet, which could be attributed to diabetes, there were no nerve conduction studies or EMG supporting a diagnosis of diabetic neuropathy. The examiner stated that the Veteran did not have a diagnosis of diabetic neuropathy of any extremity, and explained that without NCS evidence, diabetic neuropathy could not be confirmed. The examiner concluded that a positive nexus could not be established without a current NCS or EMG that showing findings consistent with diabetic neuropathy. The examiner stated that the February 2020 VA examiner's opinion was in error, and therefore, was rescinded. Treatment records from June 2015, July 2015, June 2018, and October 2019, show a continuing diagnosis of diabetic neuropathy. An October 2019 nerve conduction study (NCS) was interpreted as abnormal and showing mild peripheral neuropathy. The diagnosis and etiology of a disability such as peripheral neuropathy are medical questions. Regarding the etiology of the Veteran's diabetic neuropathy, the Board finds the most probative of medical evidence in the record to be in the opinion by the February 2020 VA examiner, buttressed by the treatment record notations of an October 2019 NCS (the validity of which the Board finds no reason to dispute) that was interpreted as abnormal, and showing mild peripheral neuropathy. Also supporting the claim are treatment records showing consistent since 2015 reports of neuropathy-like symptoms, which were diagnosed as diabetic neuropathy. In addition, two DBQ opinions from the Veteran's physicians (in November 2015 and April 2018) attribute the Veteran's neuropathy of upper and lower extremities to diabetes (consistent with the Veteran's diagnosis of diabetes which is service-connected, and that diabetic peripheral neuropathy is a known complication of diabetes). [The Board observes that the very diagnosis of "peripheral neuropathy" establishes by definition that it results from/is a complication of/and is secondary to diabetes. The Board acknowledges that the two (December 2016 and December 2020) VA opinions against the claim, but finds they merit much less probative value. The December 2016 VA examiner did not have access to any objective medical evidence supporting that the Veteran had diabetic peripheral neuropathy, in particularly the October 2019 NCS finding of mild peripheral neuropathy. The December 2020 VA examiner's opinion reflect a lack of appreciation for what the factual record shows. The provider while noted the October 2019 NCS, did not address the significance of the interpretation that the findings were abnormal and showed mild peripheral neuropathy, and instead stated that a positive nexus could not be established without a current nerve conduction study or EMG that showed findings consistent with diabetic neuropathy. The Board is unaware of any requirement that a diagnosis of diabetic peripheral neuropathy must be confirmed by repeat (more than on one occasion) NCS (and the provider does not cite to any medical literature that supports that conclusory opinion). [The Board also observes that if in the provider's opinion the October 2019 NCS finding of peripheral neuropathy and the Veteran's treatment records showing ongoing peripheral neuropathy-like complaints since 2015 were insufficient to establish a diagnosis of peripheral neuropathy, it was incumbent on the provider to arrange for such testing.] Based on the foregoing, the Board finds that it is reasonably shown that the Veteran has diabetic peripheral neuropathy of both upper and both lower extremities and that service connection for such disabilities is warranted. Right shoulder and right hip disabilities. The Veteran asserts that he has right shoulder and right hip disabilities that were incurred in active-duty service. At the May 2019 Board hearing, he testified that he started having right shoulder and right hip symptoms during his last period of active-duty service. The Veteran's service treatment records (STRs) show that his upper and lower extremities were normal on clinical evaluations on examinations in February 1976, April 1981, February 1992, and August 2001. On March 2005 examination, his upper and lower extremities were again normal clinical evaluation; however, he reported that he had a painful shoulder for two weeks and "thought" he had hip arthritis. In March 2006, he denied having any shoulder or hip pain. On July 2006 examination, his upper and lower extremities were again normal on clinical evaluation, but he again reported having pain in his shoulder and hip. A September 2006 X-ray of his right shoulder was interpreted as normal. On March 2007 VA examination, after the Veteran's separation from active-duty service, he reported that he had right shoulder pain in service, but since his separation from service, had not had any episodes of right shoulder pain. He reported that he first had right hip pain during physical training in 2003, and that the pain still comes and goes. X-rays of his right shoulder and right hip were normal. Upon review of the Veteran's claims file, and interview and examination of the Veteran, the examiner reported that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic right shoulder or right hip disability. The Veteran's treatment records show that x-rays of his right shoulder and right hip in August 2019 revealed mild arthritis. On February 2020 VA examination, the Veteran reported that his right shoulder pain began in service, but he could not recall a specific injury. He reported that his right hip pain started in the early 2000s. Upon review of the Veteran's claims file, and interview and examination of the Veteran, the examiner opined that the Veteran's right shoulder disability and right hip disability were less likely than not incurred in or caused by the Veteran's active-duty service. The examiner noted that the STRs show that the Veteran first reported right hip pain in 2005 and right shoulder pain in 2006 but there was no mention of evaluations, treatments, or diagnoses, and that x-rays of his shoulder and hip in March 2007 (after service) were normal. The examiner observed that the first objective evidence of a right shoulder disability or a right hip disability is not until the August 2019 x-rays. The examiner observed that there is no evidence during the Veteran's active-duty service of a chronic right shoulder disability or chronic right hip disability, and that the Veteran's right shoulder and right hip disabilities were diagnosed 13 years after his separation from active-duty service. The examiner reported that aging was the biggest risk factor for the Veteran's arthritis. The examiner opined that the Veteran's right shoulder disability and right hip disability were likely due to aging and wear and tear over time. The Veteran's STRs do not show any specific injuries to his right shoulder or right knee or diagnoses of a right shoulder or right knee disability in service. While the STRs show that he reported right shoulder and right hip pain during his active-duty service, the complaints were sporadic and acute (resolving and reappearing). On clinical evaluations at the times of those complaints were normal. And a September 2006 X-ray of the right shoulder was normal. Based on the foregoing, the Board finds a right hip or shoulder disability was not manifested as chronic in service, and that service connection for the disabilities on such basis is not warranted. Arthritis of the right hip or the right shoulder was not manifested in the first year following the Veteran's separation from active duty; x-rays of his right shoulder and right hip, on VA examination in March 2007 were normal. The first evidence of a chronic right shoulder disability or chronic right hip disability is not until August 2019, when x-rays showed mild arthritis. Therefore, presumptive service connection for arthritis of the right shoulder and right hip (as a chronic disease under 38 U.S.C. § 1112), or based on continuity of symptomatology of right shoulder or right hip arthritis, is not warranted. What remains for consideration is whether the Veteran's current right shoulder and right hip disabilities are otherwise shown by competent evidence to be etiologically related to his active-duty service. Whether a current right shoulder disability and right hip disability (to include the mild arthritis now shown) is, or may be, related to remote service is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not submitted any competent (medical opinion or treatise) evidence indicating that his current right shoulder or right hip disabilities are related to his active-duty service. VA has obtained medical opinions that address that question. Of these, the Board finds most probative the February 2020 VA examiner's opinions that the Veteran's right shoulder and right hip disabilities are less likely than not due to his active-duty service, explaining that the Veteran's right shoulder and right hip disabilities are more likely due to aging and wear and tear over time and less likely than not due to his active- duty service. The opinions note that the claims file was reviewed and all evidence was considered and cite to supporting factual data, and medical principles; the detailed explanation of rationale, included noting that chronic right shoulder and right hip disability were not shown in service and that x-rays of the Veteran's right shoulder and right hip within a year following separation were normal, and identified the more likely, and nonservice-related, etiology for the disability, i.e., the aging process. The provider is a medical professional and is competent to offer the opinions given. The Board finds it to be the most probative evidence in this matter. The Veteran's assertions that his right shoulder and right hip disabilities are related to his active-duty service are not competent evidence in the matter. While he is competent to report shoulder and hip symptoms, he is a layperson and lacks the medical expertise to establish by his own opinion that the right shoulder and right hip disabilities are related to his active-duty service. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeal in these matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.