Citation Nr: 18124028
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-25 200
DATE:	August 3, 2018
ORDER
Entitlement to service connection for peripheral neuropathy of the right upper extremity (diagnosed as chronic inflammatory demyelinating polyneuropathy or Lewis-Sumner Syndrome) is granted.
FINDING OF FACT
The evidence shows that the Veteran’s peripheral neuropathy of the right upper extremity (diagnosed as chronic inflammatory demyelinating polyneuropathy or Lewis-Sumner Syndrome) manifested to at least a degree of 10 percent within one year after he left service.
CONCLUSION OF LAW
The criteria for service connection for the Veteran’s peripheral neuropathy of the right upper extremity (diagnosed as chronic inflammatory demyelinating polyneuropathy or Lewis-Sumner Syndrome) are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from December 1990 to September 1991, from October 1997 to September 1998, from February 2003 to July 2003, and from December 2009 to June 2010.  The matter is on appeal from an April 2013 rating decision.
1. Entitlement to service connection for peripheral neuropathy of the upper right extremity (diagnosed as chronic inflammatory demyelinating polyneuropathy or Lewis-Sumner Syndrome) is granted
The Veteran contends that his peripheral neuropathy of the right upper extremity (diagnosed as chronic inflammatory demyelinating polyneuropathy or Lewis-Sumner Syndrome) manifested to a compensable degree within one year after he separated from active duty in the United States Marine Corps in June 2010.  See June 2015 Form-9.
Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  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).
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).
Service connection for chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease, such as peripheral neuropathy, was shown as chronic in service; manifested to a degree of 10 percent or more within one year from the date of separation from service; or was noted in service with continuity of symptomatology since service.  38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  The chronic diseases listed in 38 C.F.R. §§ 3.309(a) include peripheral neuropathy as an organic disease of the nervous system, as “neuropathy is an abnormal and usually degenerative state of the nervous system or nerves.”  Nix v. Brown, 4 Vet. App. 462, 466 (1993); Ferraro v. Derwinski, 1 Vet. App. 326, 329 (1991) (Neuropathy is “a general term denoting functional disturbances and/or pathological changes in the peripheral nervous system.”)
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Here, a January 2014 Loma Linda University Health System Medical Report by Dr. B. T. states that the Veteran first visited Loma Linda University Health System for treatment for his painless weakness in his right hand on April 7, 2011.  See January 2014 Loma Linda University Health System Medical Report.  
In the report, Dr. B. T. further states that based on subsequent evaluations, which included an extensive EMG/nerve conduction study, the weakness in the right hand and forearm that the Veteran had been experiencing and sought treatment for in April 2011 was due to chronic demyelinating polyradiculoneuropathy (CIDP), known as Lewis-Sumner syndrome or multifocal acquired demyelinating sensory and motor neuropathy, which is an acquired neuropathy (as opposed to a hereditary neuropathy).  See id.
The Veteran subsequently underwent a VA Peripheral Nerves Conditions Examination in March 2017.  See March 2017 VA Peripheral Nerves Conditions Disability Benefits Questionnaire.  The VA examiner confirmed the Veteran’s current diagnosis of chronic inflammatory demyelinating polyneuropathy (a type of peripheral neuropathy) in the right hand.  See id.  The VA examiner also confirmed that the Veteran’s evaluations at Loma Linda University Health System showed that the Veteran’s right upper extremity weakness, for which he first went to Loma Linda University Health System for treatment in April 2011, showed an abnormal EMG that indicated a demyelinating disease in that right upper extremity.  See id.  
Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for right upper extremity peripheral neuropathy is warranted.  Service connection for peripheral neuropathy may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2017).  Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to a degree of 10 percent or more during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  
Here, the Board finds that the peripheral neuropathy in the Veteran’s right upper extremity’s manifested to a degree of at least 10 percent within one year from the Veteran’s separation from service in the United States Marine Corps in June 2010.  
Under Diagnostic Code 8516, incomplete paralysis, a 10 percent rating is assigned for a “mild” disability of either extremity.  A 30 percent rating is assigned for a “moderate” disability afflicting the major extremity, and 20 percent for the minor extremity.  A 40 percent rating is assigned for a “severe” disability afflicting the major extremity, and a 30 percent rating for the minor extremity.  The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.
Here, the Veteran went to see a doctor at Loma Linda University Health System regarding his right-hand troubles in April 2011, which is within one year from his separation from service in the United States Marine Corps in June 2010.  The Loma Linda University Health System report shows that at this time the Veteran was experiencing weakness in his right hand and forearm.  See January 2014 Loma Linda University Health System report.  While the Board refrains from rating the actual severity of the Veteran’s disability in this decision on service connection, the Board notes that the evidence clearly shows that the severity of the Veteran’s disability symptoms are at least mild.  The “weakness” in the right hand and forearm, as noted in the Loma Linda University Health System report, constitutes a degree of lost or impaired function substantially less than the type pictured for complete paralysis.  See 38 C.F.R. § 4.124.  Therefore, the evidence shows peripheral neuropathy in the Veteran’s right upper extremity’s manifested to at least a degree of 10 percent within one year from the Veteran’s separation from service in the United States Marine Corps.  Having resolved reasonable doubt in favor for the Veteran, this evidence is sufficient to grant service connection for right upper extremity peripheral neuropathy on a presumptive basis.  
 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. J. Cho, Associate Counsel 

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