Citation Nr: 0812076 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-37 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: James E. Caldwell, Attorney ATTORNEY FOR THE BOARD Simone Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from April 1971 to May 1973. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claims of entitlement to service connection for peripheral neuropathy of the right and left upper and lower extremities. FINDINGS OF FACT 1. The veteran does not have a current diagnosis of peripheral neuropathy of the right upper extremity. 2. The veteran does not have a current diagnosis of peripheral neuropathy of the left upper extremity. 3. The veteran does not have a current diagnosis of peripheral neuropathy of the right lower extremity. 4. The veteran does not have a current diagnosis of peripheral neuropathy of the left lower extremity. CONCLUSIONS OF LAW 1. Claimed peripheral neuropathy of the right upper extremity was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 2. Claimed peripheral neuropathy of the left upper extremity was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 3. Claimed peripheral neuropathy of the right lower extremity was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 4. Claimed peripheral neuropathy of the left lower extremity was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for some disorders, including peripheral neuropathy, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2007). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2007). Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 309 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service- connected disability. 38 C.F.R. § 3.303, 3.310. The veteran contends that he has peripheral neuropathy of the upper and lower extremities secondary to his service- connected diabetes mellitus. The veteran's service medical records do not reveal complaints related to symptoms associated with peripheral neuropathy. While post-service medical records reveal that the veteran made complaints of symptoms which he felt to be compatible with peripheral neuropathy, there is no clinical evidence demonstrating that the veteran has been diagnosed with peripheral neuropathy. Rather, the evidence of record reflects that the veteran has been diagnosed with atopic dermatitis that causes excessive swelling in his hands and feet which severely affects his ability to handle objects and to stand and walk for prolonged periods. On VA examination for diabetes mellitus in October 2001 and in December 2004 the veteran was found to have diabetes mellitus without complications, including peripheral neuropathy. In October 2006 the veteran was referred for neurological evaluation after he reported experiencing symptoms compatible with a possible posterior circulation transient ischemic attack. At the time of the neurological evaluation he reported that he sometimes felt that his hands and feet were numb, and that his calf muscles occasionally felt weak. He stated that he felt his speech was slowed and that he was not as quick as he once was. Physical examination revealed a decreased temperature sense in the left leg and mildly impaired vibration sense at the ankles, worse on the right. Otherwise sensory examination was intact to fine touch and position. Reflexes were 1+ at the knees and absent at the ankles. Given the veteran's low blood pressure and the symmetry of his symptoms it was felt that his current condition could represent presyncope. He was not diagnosed with peripheral neuropathy. In short, clinical records dated from October 1997 to October 2006 do not demonstrate a current diagnosis of peripheral neuropathy. In this case, there is no evidence establishing a diagnosis of peripheral neuropathy of the upper or lower extremities. As peripheral neuropathy has not been diagnosed, service connection for peripheral neuropathy of the upper and lower extremities must, necessarily, be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the veteran's statements asserting a relationship between his claimed peripheral neuropathy and his service-connected diabetes mellitus. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). As a lay person, however, the veteran is not competent to offer an opinion on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In sum, the Board has carefully weighed the evidence of record, the statements of the veteran, and the treatment records, in light of the applicable law, and finds that equipoise is not shown. As the weight of medical evidence fails to support the veteran's claims, the Board is unable to grant the benefits sought. Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in August and September 2004, a rating decision in April 2005; a statement of the case in August 2005; and a supplemental statement of the case in April 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2006 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs