Citation Nr: 1031898 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 08-34 165 ) 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 bilateral upper and lower extremities, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a vision disorder, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. He is the recipient of the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The medical evidence does not demonstrate the presence of diagnosed peripheral neuropathy of the bilateral upper and lower extremities. 2. The medical evidence does not demonstrate the presence of a diagnosed vision disorder. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the bilateral upper and lower extremities is not proximately due to or the result of service- connected type II diabetes mellitus. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2009). 1. A vision disorder is not proximately due to or the result of service-connected type II diabetes mellitus. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353- 23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in May 2007, prior to the initial unfavorable AOJ decision issued in September 2007. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection on a secondary basis, how VA would assist him in developing his claims, and his and VA's obligations in providing such evidence for consideration. Additionally, the letter advised him of the evidence necessary to substantiate disability ratings and effective dates. Therefore, the Board finds that the Veteran was provided with all necessary notice under VCAA prior to the initial adjudication of his claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records and report of a December 2008 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of his claims. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims. With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner reviewed the claims file, documented the Veteran subjective complaints and medical history, and examined the Veteran, including performing clinical testing. He then indicated, based on that evidence, that the Veteran had no current disorders that had been caused by his service-connected diabetes mellitus. As there were no currently diagnosed disorders for which the etiology needed to be determined, the examiner did not provide an opinion with regard to that question. There is nothing to suggest that the examiner's opinion is not sufficiently based in the facts of the case or that he reached an arbitrary conclusion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). 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). A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under section 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Disability which is proximately due to or the result of 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 disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-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 (38 CFR part 4) 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). The Veteran contends that he suffers peripheral neuropathy of the bilateral upper and lower extremities and a vision disorder, all secondary to his service-connected diabetes mellitus. The Board notes that the Veteran does not contend, nor does the record suggest, that the claimed disabilities are directly related to military service; thus, the Board will not discuss such theory of entitlement further. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (holding that claims that have no support in the record need not be considered by the Board; the Board is not obligated to consider "all possible" substantive theories of recovery). Medical records show that the Veteran has a current diagnosis of type II diabetes mellitus. Service connection for this disability was granted in a December 2008 rating decision. However, the record fails to demonstrate that the Veteran has a currently diagnosed disorder of peripheral neuropathy of any extremity or a diagnosed vision disorder. There are no treatment records associated with the claims file; hence, the only medical evidence with regard to the presence of current disabilities is the December 2008 VA examination. The VA examination report shows normal extremity, neurological, and eye examinations. The examiner stated that the Veteran's service-connected diabetes mellitus was well-controlled and that he had no secondary disorders caused by diabetes mellitus. Thus, the only evidence that the Veteran has the claimed disabilities is his own statements, which include reports of tingling in the extremities after eating certain foods. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the Veteran is competent to report such symptoms, but he is not competent to state that those symptoms are manifestations of a particular disorder. In the absence of any competent evidence of currently diagnosed disorders of peripheral neuropathy of the upper and lower extremities or a vision disorder, the Board concludes that service connection is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the Veteran's claims for service connection for peripheral neuropathy of the upper and lower extremities or a vision disorder secondary to service-connected diabetes mellitus. Therefore, his claims must be denied. ORDER Service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied. Service connection for a vision disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs