Citation Nr: 1736560	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-11 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus type II.  

2.  Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity from August 9, 2010.  

3.  Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from August 9, 2010.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to April 1969 and from January 1970 to January 1973.  

This appeal comes before the Board of Veterans' Appeals (Board) from a September 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2015 Travel Board hearing, and a copy of the transcript has been associated with the claims file.  

In January 2016, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional records and afford the Veteran a VA medical examination.  The action specified in the January 2016 Remand completed, the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998). 

The issues of entitlement to a higher disability evaluation for service connected peripheral neuropathy of the left and right lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDING OF FACT

The Veteran's left upper extremity neuropathy did not have onset in service and was not caused or aggravated by his service connected diabetes mellitus


CONCLUSION OF LAW

The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus type II, have not been met.  38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder.  38 C.F.R. § 3.310 (2016).  Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury.  38 C.F.R. § 3.310.  In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.322.   

Service connection may 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) (2016). 

The Veteran in this case is seeking entitlement to service connection for neuropathy of the left upper extremity, which he claims is secondary to his service connected diabetes mellitus.  

The Veteran's service treatment records are negative for any diagnosis of or treatment for neuropathy of the left upper extremity.  

VA treatment records document a November 1996 finding of left upper extremity neuropathy and left ulnar neuropathy due to a spinal cord syrinx.  A May 1997 VA outpatient treatment record notes continued sensory loss in the left upper extremity without definitive diagnosis.   

A March 2007 VA Orthopedic Consult records that the Veteran has been referred by his primary care physician for evaluation of possible Dupuytren's contracture.  The Veteran reported that his symptoms began a few years ago when he was having problems with his left shoulder.  Thereafter, he began having problems in his arm and into his hand.  He noted weakness and numbness in his hands, as well as difficulty with gripping and grasping objects.  The Veteran stated that it took quite a while for the diagnosis, but he was, after a year of work up, diagnosed with a fluid collection in his cervical region.  He reported that he underwent neurosurgical procedure with decompression and placement of a shunt; however, since that time, he has had problems with his left upper extremity.  The Veteran described significant problems with weakness in his shoulder and instability.  Records were reviewed and revealed that the Veteran underwent decompression of a syrinx with C6-C7 laminotomy on 07/07/04 performed at Oklahoma City VA Medical Center.  The Veteran was diagnosed with left hand weakness secondary to a spinal cord syrinx.

An April 2010 VA outpatient treatment note shows a diagnosis of cervical neuropathy, status post laminectomy, with severe left hand and particularly ulnar nerve dysfunction.  The Veteran was observed to have atrophied intrinsic hand muscles.

However, following a November 2010 VA examination, the Veteran was diagnosed with peripheral neuropathy of bilateral upper extremities due to diabetes mellitus type II.  

In April 2016, the Veteran was afforded a new VA examination to resolve the conflict between the November 2010 VA examination, which diagnosed the Veteran with peripheral neuropathy of the left upper extremity secondary to his service connected diabetes mellitus and VA treatment records, which diagnose the Veteran with cervical neuropathy.  The VA examiner opined that it is less likely than not the Veteran's left upper extremity neuropathy is proximately due to the Veteran's service connected diabetes mellitus, noting that the Veteran had neurological problems in his left upper extremity requiring treatment with Gabapentin for many years prior to being diagnosed with diabetes mellitus.  The examiner further concluded that it is less likely than not the Veteran's claimed condition was aggravated by his diabetes mellitus, not that his diabetes is not severe enough to require medication.  

Based on the above evidence, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's peripheral neuropathy of the left upper extremity was caused or aggravated by the Veteran's active military service, to include his service connected diabetes mellitus.  There is no evidence of a neurological condition affecting the left upper extremity in service.  Post-service, the Veteran had a long history of left upper extremity neurological problems associated with a spinal cord syrinx and cervical laminectomy that developed prior to the onset of his diabetes.  

While a November 2010 VA examiner attributed the Veteran's left upper extremity peripheral neuropathy to diabetes mellitus, the Board gives greater weight to the opinion of the April 2016 VA examiner, who concluded that the Veteran's claimed condition was neither caused nor aggravated by his service connected diabetes mellitus.

In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated:

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. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

In this case, the Board gives greater weight to the April 2016 VA medical opinion, because the examiner discussed the Veteran's medical history and provided a clear and logical rationale for her conclusions.  The November 2010 VA examiner did not address the Veteran's history of spinal problems or provide any explanation for why he believed the Veteran's left upper extremity neuropathy is due to his diabetes mellitus, rather than another cause.  

The Board has also considered the Veteran's lay statement.  However, while the Veteran has insisted that his left upper extremity neuropathy is related to his diabetes mellitus, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions.  In other words, he is a layman, not a medical expert.  The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran currently has left upper extremity neuropathy due to his service connected diabetes mellitus, rather than his history of spinal problems, is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight.

For all the above reasons, entitlement to service connection for peripheral neuropathy of the left upper extremity must be denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016).

The Board has considered the Veteran's claims and decided entitlement based on the evidence.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus type II is denied.  


REMAND

The Veteran is also seeking entitlement to a disability rating in excess of 20 percent for his service connected peripheral neuropathy of the bilateral lower extremities after August 9, 2010. 

This case was remanded for additional development, following which, a supplemental statement of the case (SSOC) was issued on August 3, 2016 for the issue of an increased rating for the Veteran's bilateral peripheral neuropathy of the lower extremities.  Thereafter, the Veteran was afforded a new VA examination of his peripheral neuropathy on October 13, 2016.  This matter was subsequently transferred to the Board, and RO did not issue an additional SSOC, nor did the Veteran waive RO review of the VA examination report.  38 U.S.C.A. § 7105 (e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal.  Here, however, the VA examination report was not submitted by the Veteran.  As the October 2016 VA examination is not duplicative of evidence previously received and is highly relevant to the issue on appeal, the case must be remanded back to the AOJ for review and issuance of a SSOC.

Accordingly, the case is REMANDED for the following action:

Issue a supplemental statement of the case (SSOC) for the issues of entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right and left lower extremities from August 9, 2010.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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