Citation Nr: 1121024 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-48 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from June 1964 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO) and the RO in Fort Harrison, Montana. The Board notes that the Veteran filed his original claims for service connection of peripheral neuropathy of the lower extremities in July 2006. The claims were denied in rating decisions issued in March 2009, September 2009, and March 2010. The denials in the March 2009 and September 2009 rating decisions were based, in part, on findings that service connection could not be established as secondary to diabetes mellitus type II because the diabetes was not shown to be related to service. However, in the March 2010 rating decision, service connection for diabetes mellitus type II with onychomycosis of the bilateral toes associated with herbicide exposure was granted after the RO obtained deck logs for the USS Comstock (LSD 19) which confirmed that the Veteran's ship was anchored in Danang harbor in the Republic of Vietnam and transported cargo and passengers ashore. As a result of that evidence, the Veteran's claims have been treated as continuously prosecuted claims. See September 23, 2009, letter from the RO to the Veteran. For this reason, the Board will consider the Veteran's claims as original claims and not as requests to reopen previously denied claims. Therefore, new and material evidence is not required. FINDING OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran currently suffers from peripheral neuropathy of the left lower extremity. 2. The preponderance of the evidence weighs against a finding that the Veteran currently suffers from peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left lower extremity was not due to, the result of, or aggravated by a service-connected disability, was not incurred in or aggravated by active military service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2010). 2. Peripheral neuropathy of the right lower extremity was not due to, the result of, or aggravated by a service-connected disability, was not incurred in or aggravated by active military service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice, and the Board finds, based upon the factors discussed herein, that no prejudicial or harmful error has been demonstrated in this case. Upon review of the record, the Board concludes that the Veteran was provided with adequate VCAA notice in the July 2009 VCAA notice letter, for reasons explained below. In the July 2009 notice letter, the RO apprised the Veteran of the information and evidence necessary to substantiate his claims, which information and evidence that he was to provide, and which information and evidence that VA will attempt to obtain on his behalf. In this regard, the RO advised him of what the evidence must show to establish entitlement to service connected compensation benefits for his claimed peripheral neuropathy of the lower extremities and described the types of information and evidence that the Veteran needed to submit to substantiate his claims. The RO also explained what evidence VA would obtain and would make reasonable efforts to obtain on the Veteran's behalf in support of the claims. In particular regard to the Dingess requirements, the Veteran was informed, in the July 2009 notice letter, as to how VA determines the disability rating and effective date once service connection is established. In regard to the timing of the notice, the Board notes that any timing defect was cured when, after receiving proper notice, the Veteran's claims were readjudicated. See Mayfield, supra. Moreover, the record reflects that the Veteran has been provided with a copy of the above rating decisions, the August 2010 SOC, and the January 2011 SSOC, which included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. In view of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. As stated above, neither the Veteran nor his representative has alleged any deficiency of notice or prejudice resulting therefrom. In regard to VA's statutory duty to assist, the Board notes that the Veteran was afforded with a medical examination in connection with his claims in March 2010. Although the claims file was not available for review, the absence of such review by the examiner does not render the examination report inadequate because the Veteran denied having any symptoms of peripheral neuropathy at the examination and he is, further, not shown to suffer from peripheral neuropathy, as will be explained in greater detail below. There is no evidence showing that the Veteran has definitively been diagnosed with peripheral neuropathy of record. Thus, a remand for another medical examination is not warranted. In addition, the Board notes that the Veteran's service treatment records (STRs) are included in the claims folder. Further, post-service VA and private treatment records adequately identified as relevant to the claims have been submitted or otherwise obtained, to the extent possible, and are associated with the claims folder. Neither the Veteran nor his representative has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. In view of the foregoing, the Board will proceed with appellate review. II. Pertinent Law, Facts, and Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). 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). 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 latter 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 Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In the present case, the Veteran seeks entitlement to service-connected compensation benefits for peripheral neuropathy of the lower left and right extremities. He asserts that he currently suffers from peripheral neuropathy secondary to diabetes mellitus type II, for which service connection was established in the March 2010 rating decision, as noted above. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of this claim and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of secondary service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. The present case appears to predate the regulatory change. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In this case, the Board notes that the Veteran has repeatedly asserted that he has numbness affecting the lower extremities and he, as a lay person, is competent to report such symptomatology. However, with all due respect for his assertions, the Veteran is not shown to suffer from peripheral neuropathy of the lower extremities, as will be explained below. As stated above, the Veteran underwent a VA diabetes mellitus examination in March 2010 in connection with his claims. At that time he denied having symptoms of peripheral neuropathy, and the neurologic examination of both lower extremities was normal. In the diagnosis section of the examination report, the examiner wrote that the evidence did not show that the Veteran suffered from neurologic disease associated with his diabetes mellitus type II. Thus, the Veteran was not shown to have peripheral neuropathy of either lower extremity at the VA diabetes mellitus examination. In addition, the Veteran's VA treatment records do not show that he currently suffers from peripheral neuropathy of the lower extremities. In this regard, it is observed that the Veteran told his primary care physician, Dr. S.S., in August 2010 that he had gone to a compensation and pension examination recently and was told that he did not have diabetic neuropathy. At that time, the Veteran complained that he had experienced a loss of sensation in the lower third of both legs since 2001. Dr. S.S. noted an assessment of questionable neuropathy, and commented that an electromyograph (EMG) should be scheduled. The Veteran's EMG study was performed in September 2010. In the September 2010 neurology diagnostic study report, it is noted that the Veteran was referred for electrodiagnostic evaluation of possible peripheral polyneuropathy. The evaluating neurologist, Dr. N.E., noted that there was electrodiagnostic evidence of mild chronic bilateral L4/L5 inactive radiculopathies with no evidence of ongoing denervation recorded. Dr. N.E. also wrote that there was no electrodiagnostic evidence of large fiber type peripheral polyneuropathy found at that time. It appears that the Veteran subsequently continued to complain of chronic numbness in his lower legs in VA treatment records from September 2010 to December 2010. His primary care physician, Dr. S.S., wrote in a December 2010 primary care note that the Veteran had complaints of numbness in the lower third of both legs since 2001. Dr. S.S. also wrote that the Veteran's EMG showed no significant nerve compression, and his symptoms may be due to diabetes mellitus. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. While the Board has considered the December 2010 treatment note reflecting the conclusion by Dr. S.S. that the Veteran's reported symptomatology may be due to diabetes mellitus, it is afforded less probative value than the March 2010 VA diabetes mellitus examination report and the August 2010 neurologic diagnostic study report for reasons explained below. Dr. N.E. has specialized medical expertise in the area of neurologic diseases, and has definitively concluded that the Veteran did not demonstrate peripheral neuropathy based on her review of the results of his EMG study. Also, the March 2010 VA diabetes mellitus examiner performed a neurologic examination of the Veteran as part of the diabetes mellitus examination and, based on this examination and the Veteran's denial of having any symptoms of peripheral neuropathy, definitively concluded that there was no evidence of neurologic disease. On the other hand, the conclusion by Dr. S.S. in December 2010 that the Veteran's symptoms may be related to diabetes mellitus is shown to be speculative, by its very phraseology. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder "may or may not" be related to service is too speculative to establish any such relationship); 38 C.F.R. § 3.102 (reasonable doubt doctrine does not include resort to speculation or remote possibility). Further, the December 2010 conclusion by Dr. S.S. appears to be primarily based on the Veteran's August 2010 account of having experienced numbness affecting his lower extremities since 2001, which is inconsistent with earlier statements by the Veteran. On his July 2006 VA Form 21-526, the Veteran wrote that his peripheral neuropathy of the bilateral lower extremities began in 2005. However, at the March 2010 VA diabetes mellitus examination, the Veteran denied having symptoms of peripheral neuropathy. See examination report, page 3. Similarly, in April 2010, the Veteran denied having any unusual numbness or tingling. See April 19, 2010, pharmacy medication management note. Thus, the Veteran has at different times variously reported that he has had numbness affecting the lower extremities beginning in 2001 and numbness of the lower extremities beginning in 2005; and has also denied having any numbness of the lower extremities. Because the Veteran has offered inconsistent statements regarding the onset of his alleged symptomatology associated with his lower extremities, and has twice denied having any numbness or tingling during the course of this claim and appeal, the Board does not find his account regarding the onset and history of his symptomatology to be credible. As a result, the Board affords Dr. S.S.'s opinion, which suggests a possible link between the Veteran's reported symptomatology and diabetes mellitus, less probative value than the opinions of the VA diabetes mellitus examiner and Dr. N.E. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (Board is not bound to accept a physician's opinion when it is based exclusively on recitations of the claimant). Although the Veteran wrote in the December 2010 VA Form 9 that the March 2010 VA medical examination and the outpatient VA treatment records showed "bilateral peripheral neuropathy with only apparent causation as diabetes", the evidence does not support the Veteran's assertion. The March 2010 VA diabetes mellitus examination report and the Veteran's VA treatment records do not show that he currently suffers from bilateral peripheral neuropathy. For reasons previously discussed, the Board finds this evidence more credible and of greater probative value than the Veteran's unsupported lay assertion and the speculative December 2010 statement by Dr. S.S. The Veteran's complaints of numbness affecting his lower extremities are not shown to be attributable to the diagnosis of peripheral neuropathy. Thus, for the foregoing reasons, the Board concludes that, although the Veteran is service-connected for diabetes mellitus type II, he is not entitled to service-connected compensation benefits for peripheral neuropathy of the lower extremities because he does not currently suffer from the disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is of no advantage. Therefore, because the preponderance of the evidence is against his claims, service connection for peripheral neuropathy of the left and right lower extremities is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, because the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs