Citation Nr: 1309662 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 06-19 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION The Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to November 1968, which included a tour of duty in Vietnam from July 1967 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2009, the Veteran testified at a video conference hearing before a Veterans Law Judge, who is no longer employed at the Board. In April 2011, the Veteran declined another Board hearing before a Veterans Law Judge who would decide his appeal. A transcript of the hearing is associated with the claim folder. In November 2009, the Board issued a decision on four claims on appeal, and remanded the case to the RO for additional development on three claims. Then, in a July 2010 rating decision, the RO granted service connection for the remanded claim for service connection for coronary artery disease In June 2011, the Board issued a decision on the other claim and remanded the case to the RO for further development on the one issue remaining before the Board, that is, entitlement to service connection for peripheral neuropathy of the upper extremities. In October 2012, the Board again remanded the issue of service connection for peripheral neuropathy of the upper extremities. The remands of July 2010, June 2011, and October 2012 all requested VA to provide the Veteran a VA examination to diagnose whether the Veteran had a nerve condition in the upper extremities and then determine whether any diagnosis is related to service, including whether it was due to the Veteran's service-connected diabetes mellitus, type II disability. VA provided an examination in November 2012 and the examiner has issued a report. After review of the report, the Board finds the VA examination report in compliance with 38 C.F.R. § 3.159(c) (4), that is, sufficient competent medical evidence to make a fully informed decision on the claim. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran was not diagnosed or treated for an upper extremity peripheral neuropathy disability or symptoms of an upper extremity peripheral neuropathy disability in service and an upper extremity peripheral neuropathy disability was not manifested to a compensable degree within one year from the date of separation from service; and is unrelated to an injury or disease or event in service. 2. The Veteran was not diagnosed or treated for an acute injury or chronic symptoms of an upper extremity peripheral neuropathy disability during service. 3. The Veteran does not have a diagnosed neurological disability of the upper extremity. 4. Symptoms claimed as such as numbness and tingling, or a loss of sensation to pain in the fingertips have not been related to any diagnosed disability of the upper extremities and the upper extremities have been found to be essentially normal upon examination. CONCLUSION OF LAW The criteria for service connection for an upper extremity peripheral neuropathy disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post-adjudication VCAA notice by letters, dated in September 2003, and March 2006. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the statement of the case in April 2006 and the supplemental statements of the case, dated in April 2009, February 2011, August 2012, September 2012, and February 2013. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private physicians and hospitals, medical records from his former employer, E.I. du Pont de Nemours & Company, dated from 1968 to 1993, and afforded the Veteran VA examinations in February 2010, July 2010, and November 2012, and a hearing before another Veterans Law judge in July 2009 and declined another Board hearing before a Veterans Law Judge who would decide his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in July 2009, the Veterans Law Judge indicated that the hearing would focus on the issue of entitlement to service connection for peripheral neuropathy of the upper extremities, and discussed the elements of the claim that was lacking to substantiate the claim. The Veteran was assisted at the hearing by an accredited representative from Texas Veterans Commission. The representative and the Veterans Law Judge asked questions to ascertain the etiology and symptoms of peripheral neuropathy. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection for peripheral neuropathy of the upper extremities to include as caused by diabetes mellitus, type II, on a secondary basis. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, sufficient findings to rate any disability and offered opinions whether any current disability is related to service. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Service Connection for Upper Extremity Peripheral Neuropathy Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease, such as organic diseases of the neurological system, in service requires 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain disabilities such as organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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 C.F.R. § 3.303(d). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means 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. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis Private medical records establish that in March 2003, the Veteran was diagnosed with diabetes mellitus, type II (diabetes). As the Veteran served in Vietnam, his exposure to Agent Orange is conceded, see 38 C.F.R. §§ 3.307, 3.309, and he is service connected for diabetes. The Veteran asserts that his diabetes has resulted in peripheral neuropathy of the upper extremities. He has also been diagnosed with peripheral neuropathy of the lower extremities and the RO granted service connection for peripheral neuropathy of the lower extremities in a rating decision dated in March 2008. His service treatment records, including the separation examination in October 1968, do not contain any complaints, history, treatment, or diagnosis of a neurological condition. As noted the service records indicate the Veteran served in Vietnam from July 1967 to June 1968. Thereafter, health records from December 1968 to November 1993 the Veteran's civilian employer, E.I. du Pont de Nemours & Company, also do not establish that the Veteran complained of any neurological symptom such as neuritis, neuralgia, or sciatica in December 1968 or symptoms such as numbness thereafter. Starting in August 2002, the Veteran began seeking treatment for what was diagnosed as polymyositis of the lower extremities. It was specifically noted in August 2002 that the upper extremities and umber limb girdle musculature were completely unaffected. His job involved turning valves and the Veteran was able to do his job duties without limitation. As noted, the Veteran was diagnosed with diabetes in March 2003. VAMC records indicate in May 2005, the Veteran made a complaint that sometimes he experienced numbness in the lower leg but nothing acute. Nothing was noted regarding his upper extremities. In December 2005, the Veteran complained of still having tingling and numbness in his hands and feet. Based upon the Board's review, this is the only time the Veteran has sought treatment or complained of upper extremity symptoms. During the July 2009 hearing, the Veteran testified that his hands are tender to the touch and have a little sensitivity to cold or heat for days at a time. He also stated that he had no sensation in pain in his fingertips as he feels nothing when he pricks his finger to test his blood sugars. He still had some feeling in his arms. In a VA examination in February 2010 where the examiner concentrated on the lower extremity peripheral neuropathy, the examiner did note motor strength and reflexes were normal in all extremities and sensation was normal in the upper extremities. In an addendum dated in July 2012, the examiner stated there were no symptoms or objective findings of the upper extremities and therefore there was no diagnosis. In July 2010, a VA examiner noted that the Veteran stated he had occasional tingling in the arm and numbness in the feet and the course of the symptoms was stable. While the examiner stated the diagnosis was peripheral neuropathy of the upper extremities, it had no affect on the Veteran's daily activities and the examiner found no impairment of the upper extremities. He thus said he could not say if the symptoms were due to diabetes. As the Veteran stated there were intermittent symptoms of numbness, the examiner concluded it could be due to sensory neuropathy or carpal tunnel syndrome but making the differential diagnosis would be mere speculation. In November 2012, the Veteran was provided a VA examination to determine if he had peripheral neuropathy of the upper extremities, and if so, whether it was due to service or his diabetes disability. The Veteran stated that he had numbness in both arms every morning for the past two years. Shaking his arms relieves the symptoms. He did not give a history of ever being diagnosed with peripheral neuropathy. The Veteran had normal strength bilaterally. There was no muscle atrophy. The sensory examination was normal and the Phalen's sign and Tinel's sign were negative bilaterally. The examiner concluded the Veteran did not have an upper extremity neurological condition. There is no indication in his recent evaluations by medical providers and by the physical examination. Furthermore, the complaints of intermittent tingling and numbness are not consistent with peripheral neuropathy. The examiner specifically noted that the December 2005 outpatient note and the Veteran's testimony were consistent with this conclusion. Initially, the Board recognizes that VA provides a presumption of service connection for acute and sub acute peripheral neuropathy for Veterans presumed to have been exposed to Agent Orange. 38 C.F.R. § 3.309 (e). The record does not contain a diagnosis of acute or sub acute peripheral neuropathy and furthermore, the regulations require the condition be manifested to a compensable degree within a year of the last date of exposure. As there is no evidence that acute or sub acute peripheral neuropathy manifested within a year after the Veteran left Vietnam in June 1968, or as more thoroughly discussed below, at any time to the present there has not been a diagnosis of peripheral neuropathy, the presumption of 38 C.F.R. § 3.309 (e), does not apply. The Board recognizes that the Veteran believes his service, specifically exposure to Agent Orange resulted in diabetes which in turn caused peripheral neuropathy of the upper extremities. The Veteran is competent to testify to the events in service and after, including when he developed the symptoms he attributes to peripheral neuropathy of the upper extremities. 38 C.F.R. § 3.159. The question still remains as to whether the Veteran has a peripheral neuropathy of the upper extremity and if so, whether it is due to service. Service connection may be established by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis of the medical condition after service under 38 C.F.R. § 3.303(d). The Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in 3.309. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Peripheral neuropathy, as an organic disease of the nervous disease, is listed as a disease under § 3.309 as a chronic disease. As noted, as a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (Competent lay evidence means 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.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter. While the Board understands the Veteran is not claiming peripheral neuropathy started in service or shortly after separation, continuing to the present, the Veteran does claim the onset and continuous presence of symptoms since the diagnosis of his diabetes since 2003. When there is evidence of continuity of symptomatology, it does not necessarily follow that there is a relationship between a current diagnosis, for example, peripheral neuropathy, and the continuity of symptomatology as stated by the Veteran. Medical evidence is required to demonstrate such a diagnosis and a relationship to service unless such the diagnosis and the relationship to service is one to which a lay person's observation is competent. Although the Veteran is competent to describe peripheral neuropathy symptoms, unless peripheral neuropathy is a condition under case law that has been found to be capable of lay observation, the determination as to the presence or diagnosis of such a disability therefore is medical in nature and competent medical evidence is required to substantiate the claim. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Peripheral neuropathy is not a condition under case law that has been found to be capable of lay observation. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition). Furthermore, the diagnosis of peripheral neuropathy cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As demonstrated by this case, the diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, such as X-rays and laboratory tests, which requires medical knowledge. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Therefore, the Veteran's assertion or opinion that he has peripheral neuropathy, or more generally, the onset of his diabetes lead to the peripheral neuropathy of the upper extremities is not competent evidence and to this extent his statements and testimony are not admissible as evidence of the presence or diagnosis of peripheral neuropathy of the upper extremities or that the onset of the diabetes condition was also the onset of or lead to upper extremity peripheral neuropathy since service based on continuity or as an opinion based on causation either due to service or due to service connected diabetes. The Veteran, as a lay person, is competent not only to identify a simple medical condition, but also a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As for the Veteran relating symptoms that later support a diagnosis by a medical professional, he testified that a physician told him that his numbness in his hands is just part of him being a diabetic and it might worsen or stay the same. The Board finds that this statement, standing alone, is too generalized to be assigned much probative weight as there is no indication the physician accounted for all of the facts of this case. Further, VAMC physicians have not noted such a conclusion. As to the claim of service connection for upper extremity peripheral neuropathy, the Board notes first that there has not been any diagnosis of a neurological disorder or a nerve disability such as peripheral neuropathy of either upper extremity. No sensory or motor deficits or other objective findings have been demonstrated and both arms have had normal function. The separation examination was normal for neuorolgical disabilities or findings and no treating physician since separation, other than the Veteran's testimony previously discussed, has reached a diagnosis of a neurological disorder such as peripheral neuropathy, and/or any other upper extremity nerve disability that is caused by or otherwise related to service. In the absence of evidence of current upper extremity peripheral nerve disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is also insufficient evidence of an upper extremity peripheral nerve disability at any point during the claim or appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the Board finds that the only competent and credible medical evidence before the Board, as to the claim of service connection for peripheral neuropathy is the opinion of the VA examiners. The Board notes the unfavorable medical opinions of the VA examiners are well reasoned, detailed, provide a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms. As the VA examiners applied medical analysis to the significant facts of the case to reach the conclusion expressed in their opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the lack of a diagnosis and cause of a current nerve disorders disability of the right and left upper extremities which opposes, rather than supports, the claim. Furthermore, the VA examiner has provided the most probative evidence and the Board assigns it the most weight as the examiner's report specifically addresses the question of the existence of a diagnosis and notes that the symptoms, which are intermittent, and the findings, do not show the existence of a neurological condition and therefore, no diagnosis is reached. In light of the foregoing, the Board finds that the opinion of the VA examiner as persuasive evidence against the claim. As the VA examiner applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinion that specifically addressed the question of a diagnosis of peripheral neuropathy, the Board finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis of a current disability of peripheral neuropathy of the upper extremities, which opposes, rather than supports, the claim. Accordingly, the weight of the medical evidence is against an association or link between any current disabilities of peripheral neuropathy of the upper extremity, and service, including as secondarily caused by service connected diabetes. The preponderance of the evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs