Citation Nr: 1307919 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-42 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for retinopathy, including as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from September 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the Veteran's claims. In June 2012, the Board remanded the Veteran's claims for further evidentiary development and adjudication. The Board instructed the agency of original jurisdiction (AOJ) to obtain records from the Veteran's treatment with VA providers, provide the Veteran with VA examination, and then re-adjudicate the claims. The AOJ obtained the identified records and scheduled the Veteran for VA examinations, which were conducted in July 2012. The Veteran was then provided a supplemental statement of the case (SSOC) in December 2012, in which his claims were again denied. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran does not have retinopathy. 2. The Veteran likely has peripheral neuropathy of the lower extremities that is attributable to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The Veteran does not have retinopathy that is the result of disease or injury incurred in or aggravated during active military service; no retinopathy was caused or aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. The Veteran has peripheral neuropathy of the lower extremities that is proximately due to service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a February 2009 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claims. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board also finds that the February 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned February 2009 letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the February 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. The Veteran's service treatment records, as well as records of his post-service treatment, have been associated with the claims file. The Veteran has not otherwise alleged that there are any outstanding medical records probative of the claims that need to be obtained. The Veteran also underwent VA examinations in July 2012, reports of which are of record. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on full physical and ophthalmological examination as well as consideration of the medical records in the claims file and the Veteran's reported history. The examinations considered all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examinations, and provide a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran and his representative have both submitted written argument. Neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claims on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that this includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See id. at 448. Relevant medical evidence of record consists of the Veteran's service treatment records and records of his ongoing treatment with VA treatment providers. Review of the Veteran's service treatment records reveals that they are silent as to complaints of any problems with vision, although the Veteran was noted to experience chronic skin lesions on his feet bilaterally. Otherwise, at the Veteran's June 1971 separation report of medical history, his neurological system and his eyes were noted to be normal. Post-service treatment records note that the Veteran was first diagnosed with diabetes mellitus in July 2006. He was treated for complaints of knee pain for approximately one year, but no diagnosis was assigned. In June 2010, he underwent eye examination; at that time, no retinopathy was found. To the contrary, the Veteran was diagnosed specifically with "diabetes without retinopathy." He was again noted to have no diabetic retinopathy at a "diabetic retinopathy surveillance consult" in July 2011. Also in July 2011, the Veteran was again seen for complaints of pain in his knees and feet; at that time, he was diagnosed with neuropathy in his lower extremities. Later treatment notes from May 2012 reflect a diagnosis of "known neuropathy." Pursuant to the Board's June 2012 remand, the Veteran underwent VA physical and ophthalmological examination in July 2012. At that time, the examiner found the Veteran not to have any retinopathy. Rather, the examiner diagnosed the Veteran with "diabetes without retinopathy." The examiner further found the Veteran to have no astigmatism, no diplopia, no glaucoma, and no exceptionally poor vision or blindness. No visual field defects were noted. The Veteran's July 2012 VA physical examination found the Veteran to have peripheral neuropathy of the bilateral lower extremities. In so finding, the examiner noted that the Veteran was initially diagnosed with diabetes mellitus in 2006 and began experiencing problems with his feet and legs shortly thereafter that have continued to worsen. He complained of constant pain and burning in his feet and lower legs, as well as aching in his legs and calves causing problems with walking and balance. Physical examination found the Veteran to have decreased strength and decreased or absent deep tendon reflexes in his lower extremities bilaterally. Sensation was also negative to testing in the Veteran's lower extremities. The examiner diagnosed the Veteran with peripheral neuropathy of the lower extremities bilaterally and specifically attributed the disorder to the Veteran's service-connected diabetes mellitus. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for retinopathy, including as secondary to service-connected diabetes mellitus. With regard to this claim, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, there is no evidence that the Veteran has a current diagnosis of retinopathy. The Veteran was afforded a VA examination in July 2012, and that examiner specifically concluded that the Veteran did not suffer from any retinopathy, a finding confirmed by ophthalmological examination. The examiner concluded that the Veteran's eyes displayed no pathology on which to base a diagnosis of retinopathy. Although the Veteran has stated on multiple occasions that he believes he currently experiences retinopathy related to his service-connected diabetes mellitus, there is simply no evidence of record to support such a diagnosis. The Board is thus persuaded by the VA examiner's report that there is no retinopathy present in the Veteran's eyes. Consequently, the Board finds the VA examiner's opinion, which was based on a thorough examination conducted with a view toward ascertaining whether any retinopathy could be found, more persuasive. Without a diagnosed or identifiable underlying disability, service connection may not be awarded. With no medical evidence of a diagnosed retinopathy, the analysis ends, and service connection for retinopathy must be denied. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for retinopathy. The Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. See 38 U.S.C.A. §§ 1110, 1131. In the absence of a current disability, the analysis ends, and the claim for service connection for retinopathy cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Regarding the Veteran's claim for service connection for peripheral neuropathy of the lower extremities, including as secondary to service-connected diabetes mellitus, the Board notes initially that the Veteran's service treatment records are silent concerning complaints of or treatment for peripheral neuropathy or any related disorder. The relevant post-service medical evidence of record, however, documents that the Veteran's July 2012 VA examiner diagnosed the Veteran with peripheral neuropathy of the lower extremities and clearly explained the likely etiological link between the disorder and the Veteran's service-connected diabetes mellitus. Here, the Board is inclined to give considerable weight to the opinion of the VA examiner, who provided a clear explanation for why the Veteran currently experiences peripheral neuropathy of the lower extremities. In this regard, the Board notes that this opinion is not contradicted by any medical evidence of record. Significantly, the Board notes that there is no medical evidence in the record to suggest that the Veteran's current peripheral neuropathy of the lower extremities is not etiologically related to his service-connected diabetes mellitus. Because the only competent evidence of record suggests a link between the Veteran's service-connected diabetes mellitus and his current peripheral neuropathy of the lower extremities, the Board finds that the Veteran's peripheral neuropathy of the lower extremities is likely due to service-connected diabetes mellitus. Accordingly, and giving the Veteran the benefit of the doubt, service connection is warranted for peripheral neuropathy of the lower extremities. See 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for retinopathy is denied. Entitlement to service connection for peripheral neuropathy of the lower extremities secondary to diabetes is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs