Citation Nr: 21042749 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-39 219 DATE: July 13, 2021 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for right upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for left lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for right lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. FINDING OF FACT The Veteran's current diagnoses of bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy are etiologically related to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for left upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for establishing entitlement to service connection for right upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for establishing entitlement to service connection for left lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for establishing entitlement to service connection for right lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Navy from October 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. SERVICE CONNECTION Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Regarding the Veteran's assertion that peripheral neuropathy of the bilateral upper and lower extremities is the result of in-service exposure to an herbicide agent, although pertinent regulations provide that there are certain diseases that are associated with exposure to herbicide agents and may be presumed to have been incurred in service even though there is no evidence of the disease in service, the only type of peripheral neuropathy included amongst those diseases listed in 38 C.F.R. § 3.309(e) is early-onset peripheral neuropathy. See 38 C.F.R. §§ 3.307, 3.309. Notably, however, in this case, the evidence of record shows that the Veteran did not develop peripheral neuropathy of the bilateral upper and lower extremities until many years after service. Thus, the peripheral neuropathy is clearly distinguishable from the early-onset peripheral neuropathy contemplated as a presumptive disease recognized as etiologically related to herbicide agent exposure. Regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Under 38 U.S.C. § 1116(b)(3), an association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against such an association. VA regulations provide that a veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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 evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the 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, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). 1. Entitlement to service connection for left upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. See Argument Below 2. Entitlement to service connection for right upper extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. See Argument Below 3. Entitlement to service connection for left lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. See Argument Below 4. Entitlement to service connection for right lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, type II, is granted. The Veteran contends that he is entitled to service connection for peripheral neuropathy of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity. He asserts that all disabilities are due to Agent Orange exposure in Vietnam and/or secondary to his service-connected diabetes mellitus, type II. As an initial matter, herbicide exposure has been conceded by VA. See April 2020 VA memorandum. However, as noted above, as the claimed disabilities are not contemplated under 38 C.F.R. § 3.309(e), the herbicide agent presumption for service connection does not apply. Based on the evidence of record, the Board finds that service connection for peripheral neuropathy of the bilateral upper and lower extremities, as secondary to the Veteran's service-connected diabetes mellitus, type II, is warranted. As an initial matter, the Veteran has current diagnoses of bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. See April 2017 and April 2018 private treatment records. Thus, the first element of service connection is met. See Allen, 7 Vet. App. at 448 (reflecting that the existence if a current disability is required to establish service connection on a secondary basis). In October 2020, the Veteran underwent a VA examination for his neuropathy. The examiner opined that the Veteran's neuropathy was less likely than not proximately due to or the result of his service-connected diabetes mellitus, type II. The examiner reasoned that the medical evidence shows that the Veteran's peripheral neuropathy predated his diagnosis of diabetes mellitus. A February 2021 private treatment record shows that Dr. L.D., a neurologist, noted that she has reviewed the Veteran's records and has examined the Veteran, including a thorough physical examination and electrodiagnostic testing with multiple EMG and nerve conduction studies. Dr. L.D. stated that diabetes is often preceded by the presentation of peripheral neuropathy, citing medical sources that have confirmed that at the time of diagnosis of diabetes, greater than 50 percent of patients have peripheral neuropathy. Dr. L.D. further stated that, thus, it is a logical conclusion that oftentimes, patients present with the peripheral neuropathy before the diabetes mellitus is diagnosed by laboratory data. She cited the update on the management of diabetic polyneuropathy in the Diabetes, Metabolic Syndrome and Obesity journal, which, as Dr. L.D. indicates, references an additional 147 citations, and thus, concludes that peripheral polyneuropathy preceding the diagnosis of diabetes mellitus "is clearly a well-described phenomenon." Dr. L.D. further indicated that "[t]here is also a concern in the medical community that peripheral polyneuropathies often go largely undiagnosed in the patient population that is not followed closely by a neurologist." She cites a medical article that indicates that nearly 50 percent of newly diagnosed diabetic patients had detectable peripheral polyneuropathy at the time their diabetes was diagnosed. Dr. L.D. noted that this percentage is much higher in type II diabetics. Thus, many cases of peripheral polyneuropathy and diabetes mellitus remain undiagnosed until the patient is severely impaired. Dr. L.D. further stated that the PROTECT study, a clinical study for diabetes, showed that "more than half of the subjects with polyneuropathy had been undiagnosed with their underlying medical condition." Thus, based on Dr. L.D.'s findings and examination of the Veteran, she opined that his peripheral polyneuropathy is related to his diabetes mellitus, type II. While there is conflicting medical evidence that weighs both for and against the claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities, secondary to his service-connected diabetes mellitus, type II, the Board finds that there is competent evidence to support the claims that his current diagnoses of bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy are related to his service-connected diabetes mellitus, type II. Significantly, moreover, when there are two conflicting opinions and the evidence is in relative equipoise, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on next page) Thus, the Board finds that the evidence for and against the claims is in relative equipoise. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for peripheral neuropathy of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity, as secondary to his service-connected diabetes mellitus, type II, is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.