Citation Nr: 21023479 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-52 434 DATE: April 20, 2021 ORDER Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus type 2 is granted. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus type 2 is granted. REMANDED Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus type 2 is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus type 2 is remanded. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the left lower extremity is proximately due to his service-connected diabetes mellitus type 2. 2. The Veteran’s peripheral neuropathy of the right lower extremity is proximately due to his service-connected diabetes mellitus type 2. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus type 2 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity due to diabetes mellitus type 2 have been 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 July 1967 to April 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 and September 2016 rating decision issued by a VA Regional Office (RO). A hearing before the undersigned was held in December 2020. A transcript of the hearing has been included in the claims file and reviewed. By way of background, the Veteran’s claim for entitlement to service connection for bilateral lower extremity peripheral neuropathy stems from the rating decision issued in October 2015. This claim never became final, as the Veteran subsequently filed additional argument with new claims and supporting evidence in August 2016. The Veteran titled his claim a request to reopen, however, seeing as the claim was filed within one year of the prior rating decision, a request to reopen with new and material evidence is not required. See 38 U.S.C. § 7105; 38 C.F.R. § 20.201, 20.202, 20.302. In addition, the Board notes, that the Veteran for the first time in August 2016 claimed entitlement to service connection for bilateral upper extremity peripheral neuropathy. Therefore, the Board finds this claim stems from the September 2016 rating decision which is now considered an original claim timely appealed through the Veteran’s January 2017 Notice of Disagreement. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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). SERVICE CONNECTION Generally, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus type 2. 2. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity due to diabetes mellitus type 2. The Veteran contends that his bilateral peripheral neuropathy of the lower extremities is caused by his service-connected diabetes mellitus type 2 (diabetes). At the outset, the Board notes that the Veteran has verified active duty service in Vietnam and VA has conceded exposure to herbicide agents. Also, the Veteran is currently service connected for diabetes. Therefore, the remaining questions before the Board are whether the Veteran has a current diagnosis of bilateral lower extremity peripheral neuropathy and whether the Veteran’s diabetes caused or aggravated any peripheral neuropathy condition. As will be discussed in greater detail below, the Board finds that entitlement to service connection is warranted on a secondary basis for bilateral lower extremity peripheral neuropathy. The Veteran has consistently reported numbness and tingling sensations in his toes contending that it was caused by his diabetes. See January 2017 Notice of Disagreement; see also September 2015 VA Diabetic Peripheral Neuropathy examination. The Veteran was afforded a VA diabetic peripheral neuropathy examination in September 2015 whereby the examiner found no signs or symptoms of diabetic peripheral neuropathy. The Veteran reported that he felt numbness in his toes. Specifically, he mentioned not being able to feel his toenails being trimmed. Upon neurologic examination, all tests performed by the examiner were noted as normal to include all muscle strength testing, tendon reflexes and sensory testing. Lastly, the examiner noted that there was no functional impact as a result of the claimed condition. The Veteran was afforded another VA diabetic peripheral neuropathy examination in September 2016. Once again, the examiner opined that the Veteran did not have a diagnosis of peripheral neuropathy. The examiner reported all neurologic testing was normal. However, the examiner did note that the Veteran had tropic changes including “distal hair loss, thinner and s[hiny] skin on legs, normal pulses; does have some dystrophic toenails”. A private examination was conducted in May 2019 by Dr. C. in which the Veteran was diagnosed with profound small and medium fiber cutaneous neuropathy. Dr. C. based his diagnosis on the results of a “punch biopsy” which was taken from just above the Veteran’s ankle. Dr. C. explained that the test results showed a “marked decrease in intra-epidermal axons and dermal collagen atrophy” which is indicative of “neuropathies in diabetes mellitus”. Viewing the evidence as a whole, and in the light most favorable to the Veteran, the Board finds the May 2019 private medical opinion and examination by Dr. C to be persuasive. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the May 2019 private examination and opinion by Dr. C. was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a personal examination of the Veteran, diagnostic testing performed and analyzed by the physician himself and is accompanied by a sufficient explanation as to why the Veteran’s bilateral lower extremity peripheral neuropathy is secondarily related to his service-connected diabetes. While prior VA examinations in 2015 and 2016 indicated the Veteran did not have diabetic peripheral neuropathy of the bilateral lower extremities, the 2019 private examination provides competent evidence of current diagnoses related to his diabetes. Viewing the evidence as a whole and resolving any doubt in favor of the Veteran, service connection for bilateral lower extremity peripheral neuropathy is warranted as secondary to service-connected diabetes mellitus type 2. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus type 2 is remanded. 4. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus type 2 is remanded. The Veteran contends that his bilateral upper extremity peripheral neuropathy is caused by his service-connected diabetes mellitus type 2 (diabetes). Specifically, the Veteran asserts that he has numbness and tingling sensations in his hands which are not associated with his service-connected tardive dyskinesia condition. See December 2020 Board hearing P. 3-4. As noted above, the Veteran underwent VA examinations in September 2015 and 2016. At which time, the examiners both opined that the Veteran did not have diabetic peripheral neuropathy. However, the September 2016 VA examiner reported that the Veteran had mild bilateral upper extremity paresthesias and/or dysesthesias. It was also noted by the examiner that the Veteran had “distal hair loss” as well as other tropic changes of the lower extremities. The private physician, Dr. C., in May 2019 diagnosed the Veteran with diabetic peripheral neuropathy. However, the evidence of record indicates Dr. C. limited his examination and subsequent medical opinion to the Veteran’s lower extremities. Dr. C. reported that “no thigh biopsy was submitted for comparison” and the Veteran himself testified before the undersigned, that Dr. C. only examined his lower extremities and “took a sample of my skin just above the ankle” See December 2020 Board hearing P. 4-5. Nonetheless, the Board finds that Dr. C’s diagnosis reasonably raises the possibility that the Veteran may currently have bilateral upper extremity diabetic peripheral neuropathy. As such a remand is warranted to provide such clarity. In addition, the Veteran further contends that the numbness and tingling he feels in his hands and fingers is separate and apart from his currently diagnosed tardive dyskinesia. Unfortunately, this contention has never been addressed by any medical professional of record. The Board recognizes its duty to assist in obtaining clarification of an examination report that reasonably appears to contain information necessary to decide a claim. The VA has a duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim." See 38 U.S.C. § 5103A. Therefore, a remand is warranted to afford the Veteran a new VA examination to clarify his current diagnosis and to differentiate his symptoms in his upper extremities. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to clarify whether the Veteran has a diagnosis of upper left and/or right extremity diabetic peripheral neuropathy and to determine the nature and etiology of any upper extremity peripheral neuropathy found. The claims folder must be made available to the examiner for review in connection with the examination. The examination report should reflect that the claims file was reviewed, including any newly associated medical records. The examiner should consider all lay statements made by the Veteran to include reported symptoms of numbness and tingling in the upper extremities in contrast to reported involuntary muscle movements associated with his tardive dyskinesia condition. See December 2020 Board hearing P. 3-4. The examiner is also asked to consider the private May 2019 medical report and opinion provided by Dr. C. Based on review of the record and examination of the Veteran, the examiner should opine as to whether any diagnosed upper extremity peripheral neuropathy is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected diabetes mellitus type 2. The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.