Citation Nr: 1304308 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-05 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral lower extremity neuropathy as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from January 1944 to May 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently returned to the VA RO in Detroit, Michigan. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This case was previously before the Board in May 2012, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that in the May 2012 Board decision, the issue of entitlement to service connection for bilateral lower extremity neuropathy was decided on both a direct and presumptive basis. Therefore, the Board has limited its consideration to the issue of entitlement to service connection for bilateral lower extremity neuropathy on a secondary basis. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Bilateral lower extremity neuropathy was not caused or permanently worsened by one or more of the Veteran's service-connected disabilities. CONCLUSION OF LAW Bilateral lower extremity neuropathy is not proximately due to, the result of or aggravated by a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 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 that 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 mailed letters in July 2008 and April 2010 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The July 2008 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. The Board notes that in a January 2013 statement, the Veteran's representative argued that the June 2012 VA examination conducted at the direction of the May 2012 Board remand was inadequate. In this regard, the Veteran's representative noted that the examiner did not appear to elicit a complete history and symptomatology of the Veteran's paralumbar soft tissue scar in conjunction with the examination. However, a review of the June 2012 VA examination report shows that the examiner noted that a page-by-page review of the claims file was conducted in conjunction with the examination, which presumably included the March 2010 VA scar examination report. Additionally, as discussed below, the June 2012 VA examiner clearly noted that there was no causal connection between a paralumbar soft tissue scar and bilateral lower extremity neuropathy. Therefore, the Board finds that the June 2012 VA examination report and medical opinion are sufficiently adequate for adjudication purposes. Therefore, the Board is not barred from proceeding with a final decision in this case. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis The Veteran has asserted that his bilateral lower extremity neuropathy is related to his service-connected disabilities, specifically to his service-connected paralumbar soft tissue scar. In March 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported that he experienced low back pain with pain and numbness in his left leg. He reported that the symptoms had remained unchanged for the prior four years. The examiner found that the Veteran had diffuse peripheral neuropathy that was not coming from the back, as seen on electromyography (EMG). In June 2012, the Veteran was afforded another VA examination. At that time, the examiner confirmed the diagnosis of bilateral lower extremity peripheral neuropathy. The VA examiner opined that the Veteran's bilateral lower extremity neuropathy was not caused or aggravated by a service-connected disability, to specifically include his right paralumbar soft tissue scar, status post gunshot wound. In this regard, the VA examiner noted that the Veteran's first onset of symptoms was in 2005, 59 years following his discharge from active service. Additionally, the examiner noted that there was no evidence of record to substantiate that the Veteran sustained nerve damage from his in-service shrapnel injuries. Further the examiner noted that there was no causal relationship between the Veteran's service-connected tinnitus, hearing impairment, or superficial scars and his peripheral neuropathy. In forming the opinion, the VA examiner noted that a page-by-page review of the claims file was completed. A review of the record shows that the Veteran receives periodic treatment for various disabilities at the VA Medical Center. A review of the treatment notes of record fail to show that the Veteran has lower extremity peripheral neuropathy that was caused or chronically worsened by one or more of his service-connected disabilities. There is no medical evidence of record indicating that the Veteran's bilateral lower extremity peripheral neuropathy was caused or chronically worsened by a service-connected disability, to specifically include his paralumbar soft tissue scar. Significantly, his inservice gunshot wound involving the right paralumbar area did not involve nerve damage, according to the June 2012 VA examiner. Thus, the examiner found no causal or aggravation relationship to the bilateral lower extremity neuropathy. While the Veteran might sincerely believe that his bilateral lower extremity neuropathy is related to his service-connected paralumbar soft tissue scar, as a layperson without medical training, his opinion concerning this matter requiring medical expertise is of no probative value. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral lower extremity neuropathy as secondary to a service-connected disability is not warranted. ORDER Entitlement to service connection for bilateral lower extremity neuropathy as secondary to a service-connected disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs