Citation Nr: 0811382 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-02 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities. 3. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from December 1968 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of service connection for a bilateral foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical evidence does not show a current diagnosis of peripheral neuropathy of the lower extremities. 2. The competent medical evidence does not show a current diagnosis of peripheral neuropathy of the upper extremities. CONCLUSION OF LAW 1. Service connection is not warranted for a peripheral neuropathy disorder of the lower extremities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2007). 2. Service connection is not warranted for a peripheral neuropathy disorder of the upper extremities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veteran Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A July 2003 VCAA letter informed the veteran of what evidence was required to substantiate his claims for service connection for peripheral neuropathy of the lower and upper extremities. This letter also informed the veteran of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. Therefore, the Board finds that the requirements of VCAA regarding the duty to notify have been met and that VA has no further duty prior to Board adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. With regard to the duty to assist, the claims file contains service medical records, VA treatment records, and a VA examination report. Additionally, the claims file contains the veteran's statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further available evidence not already of record. There is no indication in the file that there are additional relevant records that have not yet been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. II. Merits of the Claims for Service Connection Legal Criteria Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Except as provided in 38 C.F.R. § 3.300(c), pertaining to secondary service connection for ischemic heart disease or other cardiovascular disease based on the effects of tobacco products, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disability, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The veteran claims service connection for peripheral neuropathy of the lower and upper extremities. In addition, the veteran related his claimed peripheral neuropathy to his service-connected Type II Diabetes Mellitus. The RO denied these claims in a January 2004 rating decision. The veteran appeals this decision. In assessing the veteran's service connection claims for peripheral neuropathy of the lower and upper extremities, the Board must first determine whether the veteran was diagnosed with the claimed disabilities. There is no indication in the medical records that the veteran is currently diagnosed with peripheral neuropathy of the lower and upper extremities. VA medical reports note that the veteran complained of pain and numbness in his left and right arm during a cardiological visit after the veteran suffered from cardiovascular problems. See VA progress notes dated September 2001 and October 2002. In fact, the competent medical evidence indicates that the veteran does not have peripheral neuropathy. An October 2003 VA examination for diabetes included an evaluation for peripheral neuropathy of the lower and upper extremities. The examiner considered the veteran's complaints of experiencing chronic pain and numbness in his feet and hands for ten years. The examiner determined that there was no cyanosis or clubbing in the extremities and minimal edema of both the lower legs. The examiner also observed that Homan's sign was negative and the peripheral pulses were well felt on both sides and were equal. The VA examiner did note that the sensations, including monofilament touch sensations, were diminished in both of the veteran's hands and feet. However, the VA examiner determined that the veteran did not have peripheral neuropathy of the hands or feet. Therefore, the competent medical evidence shows that the veteran does not have a current disability. The Board notes that it has closely reviewed and considered each of the veteran's statements. Lay persons can provide an eyewitness account of a veteran's visible symptoms, such as in this case where the veteran complains of pain and numbness in his lower and upper extremities. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the veteran is not competent to assert that he has peripheral neuropathy, because lay persons are not competent to offer medical opinions. Therefore, lay assertions regarding a medical diagnosis of a neurological disorder have no probative value. Espiritu, 2 Vet. App. at 494-95. Without evidence of a current disability, the Board must find that entitlement to service connection for peripheral neuropathy of the lower and upper extremities is not warranted. The benefit of the doubt doctrine is not applicable in this case, because the preponderance of the evidence is against the claim for service connection. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER 1. Entitlement to service connection for peripheral neuropathy of the lower extremities is not warranted. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities is not warranted. REMAND The record reflects that the veteran filed a Notice of Disagreement (NOD) in September 2004 in response to the RO's denial of service connection for a bilateral foot condition in a January 2004 rating decision. The RO issued a Statement of the Case in December 2004 addressing the veteran's claims for peripheral neuropathy of the upper and lower extremities, but it did not address the claim for a bilateral foot disorder. The Board notes that the September 2004 NOD was received by the RO within a year of the January 2004 rating decision, and it is therefore timely. 38 U.S.C.A. § 7105. As a timely NOD regarding the above issue has been submitted, a remand is required in order for the RO to provide the veteran a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding the Board should remand the issue to the RO for the issuance of a Statement of the Case when a notice of disagreement had been timely filed); 38 U.S.C.A. § 7105. Thereafter, the veteran must submit a timely substantive appeal in order for this issue to be perfected for appeal to the Board. 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED for the following action: The RO should issue the veteran a Statement of the Case with respect to his claim for service connection for a bilateral foot condition that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. In addition, the notification should include the need and the appropriate time period in which to file a substantive appeal. If a timely substantive appeal is filed, this issue should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 Supp. 2005). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs