Citation Nr: 21015323 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-30 590 DATE: March 17, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s peripheral neuropathy of the right and left upper extremities is etiologically related to his service-connected diabetes mellitus type II (hereinafter “diabetes mellitus”). CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for peripheral neuropathy of the right upper extremity are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for peripheral neuropathy of the left upper extremity are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REFERRED CLAIM The Board observes that a claim for service connection for peripheral neuropathy of the bilateral lower extremities appears to have been pending since 2013. By way of procedural background, the claim was denied in a February 2010 rating decision, the Veteran filed a Notice of Disagreement (NOD) in March 2010, and a Statement of the Case (SOC) was issued in September 2010. The Veteran then filed a request to reopen his claim in January 2012, and in an August 2013 Rating Decision and Deferred Rating, a Department of Veterans Affairs (VA) Regional Office (RO) indicated that the Veteran’s claim was deferred pending review by the Appeals Team at the RO in San Juan, Puerto Rico. However, the record does not reflect that any further action was taken on this claim. As such, the Board does not have jurisdiction of this claim and it is therefore REFERRED to the RO for the appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1969 to January 1972, including service in the Republic of Vietnam. Unfortunately, the Veteran died in July 2012. The appellant is recognized as his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for peripheral neuropathy of the right and left upper extremities 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. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively 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). Certain diseases, such as early-onset peripheral neuropathy, are associated with herbicide agent exposure and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. As pertinent here, delayed-onset peripheral neuropathy is not among the enumerated diseases under 38 C.F.R. § 3.309(e); therefore, presumptive service connection based on herbicide agent exposure is not for application. Despite this, the Veteran may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the appellant asserts that service connection is warranted for peripheral neuropathy of the right and left upper extremities, to include as secondary to his service-connected diabetes mellitus. See January 2012 Statement in Support of Claim; March 2012 Correspondence. As an initial matter, the Board notes that prior to his death, the Veteran was diagnosed with diabetic polyneuropathy of the upper extremities. See September 2010 private electromyographic study report of the upper extremities; September 2010 private treatment record. Additionally, in a May 2011 VA “Diabetes Mellitus” examination report, the VA examiner noted that the Veteran reported “peripheral neuropathic” symptoms of loss of sensation, pain, and cramps in his hands. The Board acknowledges that a May 2011 VA nerve conduction study was found to reveal no evidence of peripheral neuropathy in the upper extremities, and that the April 2011 VA “Peripheral Nerves” examiner indicated there were no peripheral neuropathy findings. Nevertheless, the Board emphasizes that the evidence need only be in relative equipoise for the Veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Board resolves all reasonable doubt in favor of the Veteran to find that a current disability is established. Next, the Board notes that in a February 2010 rating decision, the RO granted service connection for diabetes mellitus. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran’s service-connected diabetes mellitus and his peripheral neuropathy of the right and left upper extremities. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy of the right and left upper extremities is etiologically related to his service-connected diabetes mellitus. First, the Board finds it significant that the Veteran was specifically diagnosed with diabetic polyneuropathy of the upper extremities following an electromyographic study in September 2010, and diagnosed with “DPN,” or diabetic peripheral neuropathy, in a September 2010 private treatment record. Second, in the April 2011 VA “Peripheral Nerves” examination report, although the VA examiner indicated there were no peripheral neuropathy findings, he also noted that the etiology of the Veteran’s reported burning pain was diabetes mellitus. The Board affords at least some probative value to this statement given the VA examiner’s expertise as a medical doctor with a specialty in physical medicine and rehabilitation, his review of the Veteran’s medical records, and his thorough physical examination of the Veteran. There is no negative etiology opinion of record. For these reasons, and after resolution all reasonable doubt in favor of the Veteran, the Board finds that service connection for peripheral neuropathy of the right and left upper extremities is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.