Citation Nr: 1315156 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-28 012 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty for more than 23 years prior to his retirement in May 1976. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2011 rating decision, by the St. Petersburg, Florida, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for peripheral neuropathy, right lower extremity, secondary to his service-connected diabetes mellitus, type II; service connection was also denied for peripheral neuropathy, left lower extremity, secondary to his service-connected diabetes mellitus, type II. He perfected a timely appeal to that decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDING OF FACT Peripheral neuropathy of the lower extremities did not have their clinical onset during active military service and are not otherwise related to active duty or a service-connected disability; peripheral neuropathy was not exhibited within the first post service year. CONCLUSION OF LAW Peripheral neuropathy of the lower extremities was not incurred or aggravated in service, is not presumed to have been incurred in service, and is not proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310(a), (b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in April 2010 from the RO to the Veteran, which was issued prior to the March 2011 rating decision. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. Medical opinion evidence with respect to each issue has been obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions are adequate in that they were based on a review of the record, applicable medical principles, and the Veteran's history. They included an explanation for the reviewer's conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The record indicates that the Veteran served on active duty from June 1955 to May 1976; he served in Vietnam from September 21, 1966 to September 13, 1967. His DD Form 214 reflects that he was awarded the National Defense Service Medal, the Vietnam Service Medal with 2 Bronze Service Stars, the Bronze Star Medal, the Vietnam Cross of Gallantry w/Palm, and the Republic of Vietnam Campaign Medal with Device 1960. The service treatment reports (STRs) are negative for any complaints, findings or diagnoses of peripheral neuropathy of the lower extremities. The Veteran's claim for service connection for peripheral neuropathy of the lower extremities (VA Form 21-526) was received in December 2006. Submitted in support of his claim were VA progress notes dated from January 2010 to March 2010. During a clinical visit in February 2010, it was noted that the Veteran had been diagnosed with diabetes and was concerned about Agent Orange exposure that occurred while he was in Vietnam. It was noted that he had diminished pulses and had had lower extremity arterial Doppler in the past. These records do not reflect any complaints of, or treatment for peripheral neuropathy of the lower extremities. The Veteran was afforded a VA peripheral nerves examination in November 2010. The Veteran reported acute onset of weakness of both lower extremities in 1995; he stated that he had difficulty getting on the bike or getting up from the floor. The Veteran also reported having had numbness of the plantars for 15 years with tingling sensation; he noted that the symptoms progressed to the calves below the knees. It was noted that he was diagnosed with diabetes in 2006. It was noted that the Veteran had problems getting up from a chair and falling while walking. Following a reflex and motor examination, the examiner reported a diagnosis of peripheral neuropathy, bilateral lower extremities. The examiner stated that the peripheral neuropathy of the lower extremities is less likely as not caused by or a result of diabetes. The examiner explained that the peripheral neuropathy predated the diabetes. He stated that the peripheral neuropathy is not aggravated by the Veteran's service-connected thoracolumbar degenerative joint disease because there is no record or documentation present in the claims file of the baseline manifestation of the neurological signs and symptoms of his service-connected disability. Received in December 2010 were VA progress notes dated from January 2010 to April 2010. Among these records is the report of an Agent Orange Registry examination conducted in April 2010. At that time, the Veteran reported neuropathy in the legs and feet for the past 15 years. It was noted that the Veteran had spinal laminectomy in 2005 and fusion in 2010, with sciatica on the left side which is now resolved but he continues to have bilateral leg weakness. A neurological examination was essentially normal. The pertinent diagnosis was diabetes mellitus type 2. On the occasion of a VA examination for diabetes mellitus in March 2011, the examiner reported a diagnosis of peripheral neuropathy. The examiner stated that this was not a complication of the diabetes mellitus because the peripheral neuropathy predated the Veteran's diabetes mellitus by more than a decade. The examiner did note that the peripheral neuropathy was worsened by the diabetes mellitus; he stated that poorly controlled diabetes can cause or aggravate peripheral neuropathy. The Veteran was afforded another VA examination in November 2012. The Veteran reported that the symptoms in his feet and legs started 15 to 20 years ago. The Veteran indicated that he used to play racquetball and ride his bike, but one day he realized that he could not lift up his legs. He said that he had sciatica symptoms in the right lower extremity that was relieved by his low back surgery in 2010. The Veteran reported that his symptoms have gotten worse. The examination revealed sensory neuropathy of the lower extremities. The examiner stated that the medical evidence is not sufficient to support a determination of a baseline level of severity; he noted that the statement that the preexistent neuropathy is aggravated by the diabetes mellitus is based on the statement of the Veteran himself. Regardless, the examiner stated that the peripheral neuropathy is not at least as likely as not aggravated beyond its natural progression by diabetes mellitus. The examiner explained that, at the time of the examination, the Veteran was walking with a cane without a limp, motor power was 4+ in all extremities; he noted that sensation was decreased to light touch but joint position was intact. III. Legal Analysis. An award of service connection is warranted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection for an organic disease of the nervous system may be presumed if manifested to a compensable degree within one year of separation from military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The provisions of 38 C.F.R. § 3.310 indicate, in pertinent part, that disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Prior to the Veteran's claim, there was an amendment made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. It was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service- connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing certain symptoms, such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board must weigh the evidence and make credibility and competency determinations. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. § 5107 (West 2002 & Supp. 2012). The Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the lower extremities, including as secondary to service-connected diabetes mellitus. Regarding the claim for direct service connection for peripheral neuropathy, the Board finds the medical evidence in the Veteran's STRs to be persuasive that he made no complaints of, and was not treated for peripheral neuropathy of the lower extremities at any time while in service. In addition, there is no evidence that peripheral neuropathy was present to a compensable degree within one year of his separation from service. See 38 C.F.R. § 3.309(a). In fact, peripheral neuropathy was not manifested until November 2010, more than 34 years after his discharge from service. This intervening lapse of many years between his separation from military service and the first manifestation for this claimed disorder is probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board concludes that the lack of any in-service treatment and the long lapse between the Veteran's separation from active duty and his first complaints and diagnosis of peripheral neuropathy of the lower extremities weigh against a finding that the currently diagnosed peripheral neuropathy is etiologically related to the Veteran's time on active duty. Additionally, the overall evidence of record fails to establish a link between the Veteran's peripheral neuropathy of the lower extremities and his period of military service. The Board further finds that the Veteran's peripheral neuropathy of the lower extremities is not related to his service-connected diabetes mellitus. In this regard, following a VA examination in November 2010, the examiner stated that the peripheral neuropathy of the lower extremities is less likely as not caused by or a result of diabetes. While a VA examiner in March 2011 suggested that poorly controlled diabetes can aggravate peripheral neuropathy, a VA examiner in November 2012 explained that the above statement was based on a statement provided by the Veteran. The examiner explained that the medical evidence is not sufficient to support a determination of a baseline level of severity of the peripheral neuropathy prior to any aggravation by the diabetes mellitus. It was added that the peripheral neuropathy is not at least as likely as not aggravated beyond its natural progression by diabetes mellitus. The November 2012 examiner based this conclusion on both a review of the Veteran's claims file and an examination of the Veteran. It was noted that while the Veteran had decreased sensation in the lower extremities, motor power was 4+ in all extremities and the feet had not lost all sensation. A permanent, measurable increase in peripheral neuropathy could not be attributed to the service-connected diabetes mellitus. The Board thus finds this opinion more probative than the March 2011 VA examination, which was completed without review of the claims folder. Otherwise, there is no evidence in the record to indicate that the Veteran's peripheral neuropathy of the lower extremities is related to his diabetes mellitus. The Board has considered the Veteran's assertions that he suffers from peripheral neuropathy of the lower extremities related to his service-connected diabetes mellitus. However, as a layperson, the Veteran is not competent to give a medical opinion on the diagnosis of a current condition. Thus, while the Veteran is competent to report symptoms observable to a layperson, such as pain; a diagnosis that is later confirmed by clinical findings; or a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant a claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Therefore, the Board concludes that the preponderance of the probative evidence of record shows that the Veteran's peripheral neuropathy of the lower extremities is not causally related to his active service or any incident therein, including his service-connected diabetes mellitus, type II. As the preponderance of the evidence is against the veteran's claim of service connection for peripheral neuropathy, the benefit of the doubt doctrine is not for application in the instant case. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for peripheral neuropathy of the lower extremities, including as secondary to diabetes mellitus type II, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs