Citation Nr: 1304428 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-32 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran (appellant) and his wife ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from January 1966 to January 1968. He had service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. The issue of entitlement to service connection for a psychiatric disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam and is presumed to have been exposed to herbicides during service. 2. The Veteran did not engage in combat with the enemy during service. 3. The Veteran did not sustain an injury or disease of the peripheral nerves during service. 4. The Veteran did not experience chronic symptoms of a peripheral neuropathy of the lower extremities during service. 5. The Veteran did not experience continuous symptoms of peripheral neuropathy of the lower extremities after service. 6. Peripheral neuropathy of the lower extremities did not manifest within one year of separation from service. CONCLUSION OF LAW Peripheral neuropathy of the lower extremities was not incurred in active service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in September 2008, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim of entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, the September 2008 letter from VA to the Veteran explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claim. The Veteran has not been examined by VA in connection with his claim for service connection but, as will be explained below, the evidence demonstrates no in-service injury or disease of the peripheral nerves; thus, as there is no in-service injury or disease to which a current disability could be related, no examination or nexus opinion is required, and any opinion would be speculative. Additionally, as the evidence demonstrates no chronic symptoms of peripheral neuropathy in service or continuous symptoms since service, there is also no factual basis for such a nexus opinion based on symptoms in service or continuous symptoms since service. For this reason, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claim for service connection. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of 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, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 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. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. 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); Gilbert, supra, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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 order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Secretary, under the authority of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442-49, and 61 Fed. Reg. 57,586-89 (1996); Notice, 64 Fed. Reg. 59,232-43 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-60 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Analysis of Service Connection The Veteran asserts that his peripheral neuropathy of the lower extremities is related to his military service. In the Notice of Disagreement, VA Form 9, and testimony before the undersigned, the Veteran contends that his peripheral neuropathy began during basic training in service and has continued since that time. The Veteran asserts that he had pain and swelling of the feet since boot camp (in January 1966), and that he currently has leg cramps. He testified that he was medivaced in January 1967 for a foot problem. He further testified that he had experienced muscle cramping for about 25 years, from the late 1980s, or before then, but he began taking medication for it in the 1980s. The Board notes that the Veteran is service connected for a fungal infection of the feet, and as such, VA is precluded from compensating the Veteran for the very same symptoms as those that are part and parcel of an already service-connected disability. See Esteban v. Brown, 6 Vet. App. 259 (1994), citing 38 C.F.R. § 4.14 VA's anti-pyramiding provision. The Veteran does not allege, and a review of his official military documentation contained in his claims file does not otherwise indicate, that he engaged in combat against enemy forces as contemplated by VA regulations. His DD Form 214 does not reflect that he received any decorations or medals indicative of involvement in combat. While the Veteran's military occupational specialty was a machine gunner, he earned the expert rifle badge, and he earned the Republic of Vietnam Campaign Medal with device, all evidence that is not inconsistent with combat and could even be of probative value in supporting a contention of combat, he has not contended that he engaged in combat service. For these reasons, the Board finds that the Veteran did not "engage in combat" with the enemy during service. After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease of the peripheral nerves during service, and that symptoms of peripheral neuropathy of the lower extremities were not chronic in service. In this case, the Veteran has qualifying service in the Republic of Vietnam such that exposure to herbicide agents during service is presumed, in the absence of affirmative evidence to the contrary. The service treatment records show treatment for athlete's foot and burns to the right calf, but are negative for any complaints, treatment, or diagnoses related to peripheral neuropathy of the lower extremities. The December 1967 service separation examination report shows that physical examination of the Veteran's feet, lower extremities, and neurological system were normal. See 38 C.F.R. § 3.303(a), (b). The Board also finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of peripheral neuropathy of the lower extremities after service. Medical records submitted after the Veteran's August 2008 claim for benefits show that the first treatment for his legs was in 1997, nearly thirty years after service. In 1997, when being treated for peripheral neuropathy symptoms, the Veteran did not give a history of any injury or disease of the lower extremities during service, or chronic symptoms during service, or continuous symptoms since service separation. He first made such assertions at or after the time that he filed the current VA claim for compensation. Moreover, VA treatment records dated April 2008 indicate the first diagnosis of peripheral neuropathy, which the Veteran's treating provider associated with his (post-service) alcoholism. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Although the Veteran is competent to report certain symptoms of peripheral neuropathy of the lower extremities, the Board finds that his reports of symptoms in service and continuous symptoms since service are inconsistent with his own, previously reported histories and other evidence of record, and are not credible. As noted above, the Veteran did not assert that he had a diagnosis of peripheral neuropathy of the lower extremities until 2008. Additionally, he did not assert that this peripheral neuropathy of the lower extremities was related to active service until he filed his claim for benefits in 2008. In particular, inconsistent with his current assertion and testimony of continuous post-service symptoms of peripheral neuropathy, in 1975 the Veteran filed a claim for service connection for the service-connected fungal infection of the feet, which he claimed as athlete's foot, trench foot, and jungle rot. At that time, he did not claim service connection for, or even mention that he had, symptoms of peripheral neuropathy; to the contrary, there is no indication of related complaints or symptoms of peripheral neuropathy at that time, nor is there any indication of continuous symptoms since that time. Where the Veteran filed a claim for service connection, but did not mention peripheral neuropathy symptoms at that time, this strongly suggests that there was no pertinent peripheral neuropathy symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding another claim for service connection, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in another instance where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted; thus, the Veteran's inaction regarding a claim for peripheral neuropathy of the lower extremities, when viewed in the context of his action regarding another claim for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain peripheral neuropathy in service, or the lack of peripheral neuropathy symptomatology at the time he filed the claim, or both. The Board has also considered the statements of the Veteran's step-daughter and wife, as well as friends, attesting that the Veteran has a history of leg cramps, problems with his coordination, and alcohol abuse, as well as skin problems of the legs and feet. These statements, combined with the clinical evidence of record, do not demonstrate a relationship between the Veteran's active service and his current peripheral neuropathy of the lower extremities, either by direct nexus or by a showing of continuous symptoms since service separation. Of note, the Board observes that the Veteran's wife testified that the Veteran had problems with his lower extremities since approximately 1977, and that he sought treatment at that time; however, she went on to testify that the symptoms were related to the fungal infection of his feet. Moreover, the Veteran contends that he has had symptoms since service and sought treatment since the late 1980s for swelling of the legs. The Board finds that the recent contentions of the Veteran and his wife regarding peripheral neuropathy of the lower extremities in service are not credible because their reports are inconsistent with the service treatment record evidence, the absence of complaints or treatment after service, the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation, the act of filing a claim for service connection in December 1975 that did not include service connection for symptoms of peripheral neuropathy, and his own reported histories at the VA examinations. In his August 2008 claim for VA benefits, the Veteran claimed that he had peripheral neuropathy of the lower extremities that began during an active service and continued since that time; however, treatment records since that time do not show any related complaints or diagnoses prior to 2008. The only complaints and symptoms in service are those skin complaints related to the separate disability of service-connected fungus infection. Also, until the Veteran filed the claim for VA compensation, he did not assert an association between his peripheral neuropathy of the lower extremities and service. The Board also observes that, when the Veteran sought treatment for peripheral neuropathy of the lower extremities prior to the current claim for benefits, it is significant that he did not make any assertions of chronic symptoms in service or continuous symptoms since service regarding his claimed peripheral neuropathy of the lower extremities. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Likewise, as indicated earlier, at separation from service, the Veteran's neurological and physical examinations were normal; the Veteran did not make any related complaints at the 1976 VA examination. Similarly, there was no clinical evidence of a related, chronic peripheral neuropathy of the lower extremities during or for years after service, including within a year of discharge from service. For these reasons, the Board finds that the Veteran's and his wife's recent statements and testimony for compensation purposes that he had chronic symptoms during service and that he experienced continuous symptoms since service are outweighed by the other, more contemporaneous lay and medical evidence of record, and are not credible. See Caluza at 511 (1995); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). Moreover, the Board notes that the VA and private treatment records associated with the Veteran's claims file do not show that he reported any history of in-service symptoms of peripheral neuropathy. As previously discussed, the Veteran was afforded a VA examination in 1976 in connection with his now service-connected fungal infection of the feet, and gave no history of in-service symptoms of peripheral neuropathy of the lower extremities, gave no history of post-service symptoms, and made no complaints of symptoms of peripheral neuropathy, including no complaints of leg cramps or incoordination. The Veteran did not complain of peripheral neuropathy or allege that his peripheral neuropathy of the lower extremities was related to his service until his current claim for VA disability compensation benefits. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); 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"). Such evidence weighs against findings of chronic symptoms of peripheral neuropathy in service or continuous symptoms since service. The Board again acknowledges that the Veteran had service in Vietnam, and that it is presumed that he had exposure to Agent Orange in the course of such service. Nevertheless, the Veteran's peripheral neuropathy of the lower extremities was not manifest within the time period provided in 38 C.F.R. § 3.307(a)(6)(ii). While the record reflects that the Veteran was diagnosed with peripheral neuropathy of the lower extremities, to substantiate a claim of presumptive service connection for such disability as a chronic disease, there must be evidence that it was manifested to a compensable degree in the first post service year. A thorough review of the record reflects no peripheral neuropathy of the lower extremities in the first post-service year. Although the Veteran has alleged experiencing symptoms during the first post-service year, notably, as a layperson, he is not competent to diagnose peripheral neuropathy of the lower extremities as that disability is an insidious process identified by diagnostic testing. See Jandreau v. Nicholson, 492 at 1377 (Fed. Cir. 2007). Moreover, as indicated above, such assertions and testimony of symptoms in service and continuously after service are not credible. Given that there is no credible evidence of peripheral neuropathy of the lower extremities within the first post-service year, and there is no clinical evidence of record demonstrating a nexus between the Veteran's peripheral neuropathy of the lower extremities and his Agent Orange exposure, service connection for peripheral neuropathy of the lower extremities on a presumptive basis is also not warranted. The preponderance of the evidence of record is against a finding that the Veteran's peripheral neuropathy of the lower extremities is related to service; therefore, the claim for service connection of this disability must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for peripheral neuropathy of the lower extremities is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs