Citation Nr: 1237961	
Decision Date: 11/06/12    Archive Date: 11/16/12

DOCKET NO.  10-25 204	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from January 1972 to September 1972 and from March 1977 to April 1996.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO).  


FINDINGS OF FACT

The Veteran does not have diagnosed peripheral neuropathy of the bilateral lower extremities.  


CONCLUSION OF LAW

Peripheral neuropathy of the bilateral lower extremities was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).  

VA has met its duty to notify and assist the Veteran.  In a preadjudicatory October 2009 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible.  The October 2009 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran has not been afforded a VA examination in conjunction with his claim for service connection.  VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006).  

Because the evidence of record does not reflect a current disability related to peripheral neuropathy of the bilateral lower extremities, persistent or recurrent symptoms of a disability, or even an event, injury, or disease in service that can be related to peripheral neuropathy, there is no duty to provide a VA medical examination.  See 38 U.S.C.A. § 5103A(a)(2)  (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d).  The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, the holding in Charles was clearly predicated on the existence of evidence of both an in-service injury or event and a current diagnosis.  The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim.  See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d) .

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes service treatment records, and VA treatment records.  The Veteran has not identified any outstanding evidence that needs to be obtained.  For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 

B.  Law and Analysis 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required 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, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Also, certain chronic diseases, including organic neurological disorders, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

After reviewing all the evidence of record, both lay and medical, the Board finds that the Veteran does not have currently diagnosed peripheral neuropathy of the bilateral lower extremities which was incurred in service.  

Service treatment records, to include enlistment, separation, and periodic examinations, do not reflect any treatment, complaints, or diagnoses related to the peripheral neuropathy.  The Board notes that the Veteran had a history of right and left knee surgeries in service with degenerative joint disease; however, the Veteran is already service-connected for traumatic arthritis of the right and left knee, status post meniscus repair, and there is no indication that claimed peripheral neuropathy is related to currently diagnosed arthritis.  The Veteran was also seen for foot pain in service; however, his treatment was related to soft-tissue injuries to the feet and Achilles tendonitis.  Peripheral neuropathy was not indicated in service.  Post-service medical records, similarly, do not reflect any treatment, complaints, or diagnoses related to peripheral neuropathy.  

The Veteran submitted an October 2009 claim for service connection for peripheral neuropathy.  An October 2009 report of contact shows that the Veteran clarified that his claim was for peripheral neuropathy of the bilateral lower extremities.  However, the Veteran has neither submitted nor has he identified any medical evidence showing treatment or diagnoses for peripheral neuropathy of the bilateral lower extremities.  VA treatment records show that the Veteran was seen for a complaint of "knots of the top of both feet" in April 2004; however, VA treatment records do not reflect a diagnosis of peripheral neuropathy.  

The Board has no basis to question the Veteran's credibility, or the sincerity of his belief that he has peripheral neuropathy of the lower extremities.  That said, there are a number of other diagnoses that could account for lower extremity symptomatology, including degenerative arthritis, rheumatoid arthritis, and fibromyalgia.  See 38 C.F.R., Part 4.  The Veteran has not been shown to have the training, credentials, or other expertise needed to attribute his symptoms to one or more of these diagnoses, or to distinguish between them.  See 38 C.F.R. § 3.159(a)(2).  Moreover, the fact that the Veteran has experienced symptomatology, notably pain, is not a substitute for a diagnosis.  In this regard, the Board observes that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997).  Absent a current diagnosis of peripheral neuropathy or in-service findings related to such, the Board finds that service-connection for peripheral neuropathy of the bilateral lower extremities is not warranted.  Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for peripheral neuropathy of the bilateral lower extremities is denied.


____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs