Citation Nr: 1305090 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-33 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for sensory peripheral neuropathy in the lower extremities, to include as secondary to a service-connected low back disability. (The issues of entitlement to increased ratings for a low back disability, a right hip disability, and bilateral knee disabilities will be addressed in a separate Board decision). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from June 1979 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which, in part, denied service connection for sensory peripheral neuropathy in the lower extremities. The Veteran perfected an appeal of that issue. In the May 2009 rating decision, the RO also denied service connection for a left foot disorder, and the Veteran perfected an appeal of that issue. Subsequently, in a January 2012 rating decision, the RO granted service connection for plantar fasciitis of the left foot and assigned a 10 percent evaluation, effective April 1, 2008. As this represents a full grant of benefits sought as to the claim for service connection and the Veteran has not disagreed with the effective dates or disability evaluations assigned, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). 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 to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. FINDING OF FACT The Veteran does not have sensory peripheral neuropathy in the lower extremities or any other neurological disability of the lower extremities. CONCLUSION OF LAW Sensory peripheral neuropathy in the lower extremities was not incurred in or aggravated by active duty service or proximately due to a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in February 2009 and March 2009. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim of service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The February 2009 and March 2009 letters were sent before the initial adjudication of the claim in May 2009; thus, the notice was timely. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. Therefore, the Board finds the duty to notify provisions of VCAA have been fulfilled. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. The Veteran's service treatment and VA medical records were obtained and associated with the claims folder. Additionally, in April 2009 the Veteran was afforded a VA examination. As discussed below, although the April 2009 examination was incomplete insofar as nerve conduction tests were not undertaken, the record includes a report from electrophysiological studies in January 2010. The April 2009 examination report, in combination with the January 2010 report, demonstrates that appropriate physical examinations were undertaken and there is adequate evidence for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Additionally, the Veteran has declined the opportunity to present testimony before a Veterans Law Judge. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria-Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. A continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis-Service Connection To establish service connection for peripheral neuropathy of the lower extremities, the Veteran must show affirmatively that he has the disease, and the disease is related to his active service or to other service-connected disability. There is no evidence of a diagnosis of peripheral neuropathy in service. A VA examination report from January 1985 reflects that the Veteran had no neurological defects. A VA spinal examination report from March 2001 indicates that the Veteran had "a strange feeling" on his right leg. No fecal or urinary incontinence was reported. A VA treatment record from November 2004 contains the Veteran's report of a tingling sensation in his extremities. On VA spine examination in March 2005, the examiner wrote that the sensory examination was intact to stimulation for both lower extremities. On VA neurological examination in April 2009, the Veteran complained of a prickling sensation in his bilateral feet. The examiner indicated that the Veteran experienced decreased sensation to pain and light touch in the lower extremities. Sensation to vibration and position was bilaterally normal. The examiner found no atrophy, abnormal muscle tone or bulk, tremors, tics, or abnormal movements. The examiner concluded that there was clinical symptomatology compatible with a sensory peripheral neuropathy in the lower extremities of unknown etiology. The examiner specified that neuropathy could not be related to the Veteran's lumbar degenerative joint disease, since the neuropathy would be a metabolic-toxic-nutritional disorder, and the degenerative joint disease (DJD) was a degenerative joint condition with a different and distinct clinicopathophysiological presentation. The examiner did not conduct an electromyography or nerve conduction studies. A VA nerve conduction study was performed in January 2010. This test was conducted in conjunction with motor nerve conduction tests, sensory nerve conductions, and an EMG. The examiner reported all of the test results in detail and said that they all yielded normal results. It was concluded that there was no electrodiagnostic evidence of active lumbar radiculopathy or peripheral neuropathy. There is no competent evidence to establish a nexus between any currently demonstrated neurological disability of the lower extremities and a documented event or incident of his service or the Veteran's service-connected lumbar spine disorder. In fact, the weight of the evidence shows that the Veteran does not have a neurological disorder of the lower extremities. The Board acknowledges that the April 2009 VA examiner indicated that the Veteran had a sensory neuropathy. However, the VA examiner wrote in the report that he did not conduct any actual neurological testing. Neurological testing, to include motor nerve conduction tests, sensory nerve conductions, and an EMG were actually performed in January 2010, and they all yielded normal results. The Board finds that the January 2010 VA neurological testing results outweigh the opinion of the April 2009 VA examiner concerning the existence of any neurological disability, as the April 2009 VA examiner provided an opinion without the results of motor nerve conduction tests, sensory nerve conductions, and an EMG. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that thoroughness and detail of the opinion is a factor for assessing the probative value of a medical opinion). The Veteran has complained of tingling in his lower extremities, and such pain is confirmed in medical records, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, medical nerve testing indicates that no neurological disability of the lower extremities has been present at any time during the pendency of the claim. The Veteran has not been shown to have a current disorder for which service connection can be granted on either a direct or a secondary basis. The Veteran, as a lay person, is competent to note what he experiences, including symptoms such as tingling. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case, the question of as to whether the Veteran meets the criteria for a diagnosed neurological disability is a complex medical question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a neurological diagnosis. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he experiences, he is not competent to ascertain the diagnosis of his disability as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more credence to the January 2010 VA clinician's findings as they were based on extensive nerve conduction studies by a licensed physician who has the requisite training, knowledge, and experience to render a medical diagnosis rather than a lay person who does not have such expertise. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for sensory peripheral neuropathy in the lower extremities on either a direct or secondary basis. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service connection for sensory peripheral neuropathy in the lower extremities is not warranted. ORDER Entitlement to service connection for sensory peripheral neuropathy in the lower extremities, to include as secondary to a service-connected low back disability, is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs