Citation Nr: 1300484 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-23 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In April 2011, and again in January 2012, the Board remanded this matter for additional evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Peripheral neuropathy of the lower extremities was not present until more than one year following the Veteran's discharge from service, is not related to his active service, and was not caused or permanently worsened by service-connected disability. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a July 2009 letter, prior to the initial adjudication of the claim. The originating agency has obtained all of the Veteran's service treatment records, as well as his identified post service treatment records. The originating agency also afforded the Veteran VA examinations in May 2011 and January 2012. These examinations were performed by examiners who reviewed the Veteran's claims file, reviewed the history of the peripheral neuropathy of the lower extremities with the Veteran, examined the Veteran, and included rationale for the conclusions reached. The reports of these examinations are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not claimed that either examination was inadequate. In April 2011 and January 2012 remands, the Board directed the originating agency to obtain a medical opinion as to whether the Veteran's current peripheral neuropathy of the lower extremities originated during his military service, or was caused or permanently worsened by his service-connected dermatophytosis/onchomycosis of the feet. The Veteran was provided with May 2011 and January 2012 VA examinations for peripheral nerves which addressed these issues. Accordingly, the directives of the Board's April 2011 and January 2012 remands have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to his claim. 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; 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). Where a Veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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(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. 38 C.F.R. § 3.310(b). Competent medical evidence is 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 include 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 is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background and Analysis The Veteran served on active duty in the Army from February 1953 to January 1955. His service treatment records show that he was treated in April 1953 and May 1953 for blisters on his feet. They do not show that he was found to have peripheral neuropathy. His separation examination, performed in January 1966, disclosed that his neurological status and lower extremities were normal. The report of a November 1955 VA physical examination notes the Veteran's complaints of blisters on both feet, and that his skin was dry and cracked. No sensory or neurological complaints were indicated. The Veteran was diagnosed with dermatophytosis of the feet, chronic. In December 1955, the RO issued a rating decision which granted service connection at a 10 percent initial evaluation for dermatophytosis of the feet, effective from January 1955. In June 2009, the Veteran filed his present claim seeking service connection for peripheral neuropathy of the lower extremities. He attributes this condition to leg and foot problems he experienced during service. In support of his claim, the Veteran submitted a February 2011 statement from a fellow soldier which notes the Veteran's in-service history of "something wrong with his feet." There is no medical evidence suggesting that peripheral neuropathy was present in service or until many years thereafter. The post- service medical evidence first reveal a diagnosis of peripheral neuropathy of the lower extremities in 2004. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for peripheral neuropathy of the lower extremities. The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., reporting to sick call for soreness and problems his feet. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation of his foot problems in service are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). To the extent that the Veteran contends that service connection for peripheral neuropathy of the lower extremities is warranted based on a continuity of symptomatology since service, the Board finds that his contentions are not supported by the evidence and not credible. Service treatment records clearly document that the inservice treatment for the Veteran's feet was for blisters. His January 1966 separation examination disclosed normal neurological findings. No finding or diagnosis of peripheral neuropathy was indicated during the Veteran's military service, or during multiple post service VA examinations conducted in November 1955, January 1958, October 1964, February 1978, or July 2005. These examinations all disclosed dermatophytosis of the feet and/or onychomycosis of the nails. Following his discharge from the service, a diagnosis of peripheral neuropathy of the lower extremities was not shown until 2004, over 48 years after the Veteran's discharge from military service. This period without any complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In May 2011, the Veteran underwent a VA examination for peripheral nerves. The VA examiner noted that the Veteran's claims file had been reviewed. The report notes the Veteran's history of having problems with his feet since service, and that he had lost all feeling in his feet several years ago. Following a physical examination, the examiner diagnosed peripheral neuropathy of the lower extremities. The VA examiner then opined that it was less likely than not that the Veteran's peripheral neuropathy of the lower extremities was caused or aggravated by his military service. In support of this opinion, the VA examiner noted that the Veteran developed peripheral neuropathy from his diabetes mellitus which began several years earlier, and that some of these findings overlap with problems that would be caused by his spinal stenosis. In January 2012, the Veteran underwent a second VA examination for peripheral nerves. The VA examiner noted that the Veteran's claims file had been reviewed. The Veteran reported that he had a history of tingling in his feet since his military service. Following a physical examination, the examiner diagnosed peripheral neuropathy of the lower extremities. The VA examiner opined that it was less likely than not that the Veteran's peripheral neuropathy of the lower extremities was incurred in or caused by service; and that it was less likely than not that there was any connection between the Veteran's service-era foot infection and his current peripheral neuropathy. In support of this opinion, the VA examiner noted that there was ample evidence that the Veteran likely had a fungal infection of the feet while in the service; and that there is no known association between dermatophytosis or onychomycosis and peripheral neuropathy. The VA examiner also noted that the Veteran's current peripheral neuropathy was sensory dominant and length dependent, which clinically resembles diabetic peripheral neuropathy, so that it is likely he has developed peripheral neuropathy later in life as a result of diabetes. The foregoing medical opinions against the claim are well supported. There is no contrary medical opinion of record. Moreover, as explained above, the preponderance of the evidence establishes that the Veteran did not develop peripheral neuropathy until more than one year following his discharge from service. Therefore, the Board must conclude that service connection is not warranted for peripheral neuropathy of the lower extremities. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for peripheral neuropathy of the lower extremities is denied. _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs