Citation Nr: 1310875 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-20 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremities. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremities. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from June 1967 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge via videoconference in May 2011. He has also been afforded two hearings before Decision Review Officers at the RO. Transcripts of the hearings have been associated with the claims file. In July 2011, the Board granted the Veteran's request to reopen the claims for service connection for peripheral neuropathy of the upper and lower extremities, and remanded the claims for further development. In a rating decision of May 2012, the RO granted service connection for peripheral neuropathy of the left upper extremity. As the benefit sought has been fully granted with regards to the left upper extremity, that issue is no longer on appeal. In an Informal Hearing Presentation of February 2013, the Veteran's representative raised the issues of entitlement to an earlier effective date for the grant of service connection for diabetes mellitus type II, prostate cancer, and erectile dysfunction, and whether to reopen a previously denied claim of entitlement to service connection for a cardiovascular condition; however, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran does not currently have a diagnosis of peripheral neuropathy of the right lower extremity. 2. The Veteran does not currently have a diagnosis of peripheral neuropathy of the left lower extremity. 3. The Veteran does not currently have a diagnosis of peripheral neuropathy of the right upper extremity. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the right lower extremity was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. Peripheral neuropathy of the right upper extremity was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in September 2007, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. Furthermore, the Veteran was afforded multiple examinations for his claims as noted above and detailed below. Review of the examination reports reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate 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 availed himself of the opportunity to present testimony in support of his claims. Thus, the duties to notify and assist have been met. Legal Criteria and Analysis The Veteran essentially contends that he has peripheral neuropathy of the bilateral lower extremities and the right upper extremity, due to service-connected diabetes mellitus, type II. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). 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) (2012). Service connection will be presumed for certain chronic diseases, including organic disease of the nervous system, on a rebuttable basis, if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to peripheral neuropathy. VA treatment records dating between April 2005 and March 2012 are not indicative of peripheral neuropathy of the bilateral lower extremities or the right upper extremity. On VA examination in March 2006 the Veteran related a history of left ulnar neuropathy for which he had undergone surgery. He also provided a history of episodic tingling in the right hand for six months. He also reported episodic numbness and tingling of the toes bilaterally. The examiner noted that electromyography and nerve conduction studies of the lower extremities had been negative with no evidence of diabetic neuropathy. At a VA examination in April 2007 the examiner noted that sensation was intact to light touch and pinprick in the bilateral hands. Vibration and proprioception were intact and symmetric in the lower extremities as was monofilament testing. The report of a September 2007 diabetes mellitus examination indicates that Tinel sign was negative at the wrists and elbows. Sensation was intact to light touch and pinprick in the bilateral hands. In the lower extremities the Veteran subjectively noted decreased sensation to light touch in the left thigh and lateral lower extremities. Monofilament was intact and symmetric in the bilateral feet. Vibration and proprioception appeared intact and symmetric. The examiner indicated that there was no evidence of diabetic peripheral neuropathy at that time. VA outpatient treatment records of December 2008 show the Veteran had intact touch sensation of the feet with monofilament testing. At his hearing before the undersigned, the Veteran testified that he had tingling in his legs, left more severe than right. He noted that the symptoms occurred daily. He related that he had cramping and numbness in his hands and arms. He stated that he had been warned by his VA physician that diabetes could cause those symptoms. At a January 2012 VA examination the veteran reported numbness in the left arm and leg, and left leg pain from the hip down. The Veteran denied any problems with the right upper and lower extremities. On examination, no symptoms attributable to peripheral neuropathy were found. Strength was 5/5, reflexes were +2, and light touch was normal in all extremities. EMG studies performed were normal except for the left upper extremity. There was no electrodiagnostic evidence of peripheral polyneuropathy or cervical radiculopathy of the bilateral lower extremities or the right upper extremity. The examiner opined that there was no evidence of peripheral neuropathy as per the clinical testing and the exam. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the most probative evidence of record weighs strongly against finding that the Veteran has peripheral neuropathy of the bilateral lower extremities or the right upper extremity. As discussed, VA physical examination and accompanying diagnostic testing has failed to yield a diagnosis of such. Therefore, without a current diagnosis of peripheral neuropathy, service connection is not warranted. The Veteran has submitted no competent contemporary medical evidence contrary to the examination findings cited above. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (noting it is a claimant's responsibility to support a claim for VA benefits). The Veteran, as a lay person, is competent to note what he experiences, including radiating pain and numbness. 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 has peripheral neuropathy 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) (2012) (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 VA examiners' findings as they were based on extensive medical testing (to include EMG) by competent health care specialists who have the requisite training, knowledge, and experience to render a medical opinion on such a complex medical matter. In sum, the weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for peripheral neuropathy of the bilateral lower extremities and right upper extremity, to include as secondary to service-connected diabetes mellitus, type II, is denied. ORDER Service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected diabetes mellitus, type II, is denied. Service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected diabetes mellitus, type II, is denied. Service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected diabetes mellitus, type II, is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs