Citation Nr: 21067684 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-12 885 DATE: November 5, 2021 ORDER Service connection for residual scarring following shrapnel removal is granted. Service connection for bilateral upper and lower extremity diabetic neuropathy are denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the current scar disability was the result of shrapnel wounds incurred in service. 2. The preponderance of the evidence of record is against finding that the Veteran has had bilateral upper and lower extremity diabetic neuropathy at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for scarring following shrapnel removal are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral upper and lower extremity diabetic neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1969 to April 1972. He was awarded the Vietnam Service Medal and Vietnam Campaign Medal with 60 device, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A November 2020 letter informed the Veteran that due to an audio malfunction during the hearing that a copy of the transcript would not be associated with his claims file. The Veteran was offered an additional hearing and declined. In light of the hearing not being associated with the claims file, the Board has sympathetically considered all correspondence from the Veteran throughout the appeal period. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection 1. Service Connection for Residual Scars, Shrapnel Wounds is Granted. The Veteran contends that service connection is warranted for shrapnel scars incurred during service. Resolving all doubt in the Veteran's favor, the Board concludes that the Veteran has a current scar disability caused by the removal of shrapnel wounds incurred during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the Board finds that the Veteran has a current shrapnel wound scar disability. Specifically, an April 2021 VA examiner diagnosed the Veteran with three linear scars of the left mid-axillary line and posterior thorax. Thus, the question becomes whether the current disability is related to service. On this question there is probative evidence in favor of and against the claim. The evidence against the claim includes an April 2021 VA examination by a nurse practitioner and later review by a Doctor of Osteopathic Medicine where both examiners opined the Veteran's current scar disability was less likely than not incurred in or caused by the claimed in-service injury. The rationale provided by both was that the scars were surgical with smooth edges. The Doctor of Osteopathic Medicine indicated that he could not confirm their origin but noted that the scars "may be due to foreign object removal or just as easily, cyst removal, skin lesion removal etc". However, the Veteran has submitted multiple pieces of lay evidence that support a finding the scars are the result of shrapnel incurred during service. First, the Veteran submitted a March 1971 letter he sent home documenting his injuries and included pictures showing bandaging over his eye. Next, the Veteran's wife submitted a statement indicating the Veteran sought medical treatment for the removal of shrapnel after he was discharged from service. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of any current scar disabilities. The Board could also order further development of the record and a more defined records search. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, the Veteran is competent to report that he incurred shrapnel during service that was later removed, resulting in the currently diagnosed scars. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board also finds highly probative the March 1971 letter that documented both via picture and words, the injuries that he incurred and treatment he received during service. Furthermore, the May 2021 opinion of the Doctor of Osteopathic Medicine stated that the scars may be due to foreign object removal. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current residual shrapnel scar disability arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a scar disability due to in-service shrapnel wounds is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service Connection for Bilateral Upper and Lower Extremity Diabetic Peripheral Neuropathy is Denied. The Veteran contends that service connection is warranted for bilateral upper and lower extremity diabetic peripheral neuropathy. After review of the evidence, both lay and medical, the Board finds that service connection for a bilateral upper and lower extremity diabetic peripheral neuropathy is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of the evidence of record, the Board concludes that the Veteran does not have a current diagnosis of bilateral upper and lower extremity diabetic peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In April 2014, the Veteran underwent a VA examination to determine the nature and etiology of any diabetic neuropathy. The VA examiner determined that based on EMG testing that there was not enough evidence to support a diagnosis of diabetic neuropathy. Specifically, EMG testing indicated no electrical evidence of diffuse large fiber peripheral neuropathy. Next, the Board notes that the Veteran was examined initially by a nurse practitioner and later re-examined by a Doctor of Osteopathic Medicine. The Board find the opinions of the Doctor of Osteopathic Medicine (Doctor or physician) more probative than the nurse practitioner. Beyond the additional training and credentials, the Doctor provided more in-depth rationale for his findings and referenced testing conducted as support. The April 2021 VA examiner evaluated the Veteran and determined that the Veteran did not meet the diagnostic criteria for diabetic peripheral neuropathy. He supported this finding by citing to EMG evidence that he concluded was "overwhelming" that the Veteran's neuropathy was related to other causes. The VA physician added that in the Veteran's feet, EMG evidence was clear and convincing that the Veteran's back and neck were the cause of the neuropathy. Similarly, he indicated that EMG test results showed the neuropathy in the hands was related to CTS and not diabetes. The Board notes the April 2021 physician's finding that the Veteran did not currently have bilateral upper and lower extremity diabetic neuropathy is consistent with the VA treatment records throughout the appeal period. A June 2014 treatment note shows that EMG testing revealed no current indication of diabetic peripheral neuropathy. Similarly, December 2016 and December 2019 EMG's found the etiology of the Veteran's neuropathy was not the service-connected diabetes mellitus. The Board also notes the September 2018 treatment note where the VA physician indicated that medication would help with diabetic polyneuropathy, but notes the physician was treating symptoms of headaches and falling at the time and listed multiple causes and never addressed negative testing for the condition. Similarly, the Board notes the January 2019 podiatry note indicating symptoms consistent with diabetic neuropathy, but again finds that the podiatrist addressed no testing that showed the symptoms were not caused by the service-connected diabetes. Because the treatment notes failed to address negative testing for diabetic neuropathy and were more focused on treatment of lay reports of symptoms, they are less probative than the examination reports that discuss testing showing the origin of the neuropathy is not the diabetes. To be sure, the record supports a finding that the Veteran has well-documented and diagnosed neuropathy, however, all testing of record and the physicians who have reviewed the evidence, have indicated that it is not diabetic neuropathy, but instead had a musculoskeletal etiology. (Continued on the next page) As previously stated, a necessary element for establishing entitlement to service connection is the existence of a current disability. Brammer, 3 Vet. App. 223, 225 (1992). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain, 21 Vet. App. 319, 321 (2007). Here, the preponderance of the evidence shows the Veteran does not have a current bilateral upper and lower extremity diabetic neuropathy disability. Specifically, there are complaints of, or treatment for the neuropathy during the appeal period and two VA examiners have found no diagnosable diabetic neuropathy. Further, to the extent the Veteran has neuropathy, the evidence does not reflect this was related to either service or a service-connected disability. Rather, testing conducted during the appeal period revealed an origin other that diabetes or service for the neuropathy. Therefore, at this time the medical evidence supports an origin other than diabetes for the current neuropathy. After a full review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for bilateral upper and lower extremity neuropathy for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.