Citation Nr: 1318096 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-24 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for right leg nerve damage. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to March 1973 and from October 1981 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2009 and April 2011, the Board remanded the above issue for additional development. Also, in December 2012, the Board obtained a Veterans Health Administration (VHA) opinion. In February 2013, the Board provided the Veteran with a copy of the VHA opinion and in April 2013 his representative provided written argument in support of his claim. In April 2012, the RO added to the virtual VA claims file additional VA treatment records. In May 2013, the Veteran's representative waived review of the newly submitted evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board need not remand the appeal for agency of original jurisdiction review of this evidence before finally adjudicating this appeal. In April 2011, the Board referred to the agency of original jurisdiction (AOJ) for appropriate action the Veteran's claim of service connection for a low back disability. No action was taken on this claim while the appeal was in remand status. Accordingly, the Board does not have jurisdiction over it and it is once referred to the AOJ for appropriate action. In adjudicating this claim, the AOJ should be mindful of the December 2012 VHA opinion in which it was opined that the Veteran's service-connected neurological disability of the left lower extremity could have caused his 2001 fall and the other medical opinions found in the record regarding this fall being the cause of his current low back disability. FINDING OF FACT The most competent and credible evidence of record shows that the Veteran right leg neurological disability, diagnosed as diabetic neuropathy, is not related to service, it was not caused or aggravated by his service-connected varicose veins of the left leg, arthritis of the right foot, and/or left lower extremity nerve disorder, and it was not caused by his service-connected varicose veins of the left leg, arthritis of the right foot, and/or left lower extremity nerve disorder causing one of his legs to give way causing the documented fall from a scaffolding in 2001. CONCLUSION OF LAW Right leg nerve damage was not incurred in or aggravated by military service or caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Next, the Board finds that letters dated in June 2005, April 2006, October 2009, and April 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the August 2011 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service records on file with the Social Security Administration (SSA) as well as his treatment records from the Memphis and Chattanooga VA Medical Centers, including all post-May 2005 treatment records, in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The record also shows that the Veteran was provided with VA examinations in March 2004, September 2005, December 2009, and May 2011. The record also shows that in June 2011 an addendum was obtained to the May 2011 VA examination and in December 2012 a VHA opinion was obtained. For reasons explained in the remands as well as the October 2012 VHA request, the Board finds that the opinions provided by the VA examiners, standing along, are not adequate to adjudicate the appeal. Nonetheless, the Board finds that the earlier VA examiners opinion when combined with the December 2012 VHA opinion is adequate to adjudicate the claim and substantially complies with the Board's remand instructions because, after a review of the record on appeal, after taking a detailed medical history from the claimant, and/or after an examination, the examiners provided opinions as to his current diagnoses and origins of his right leg neurological disability which opinions were based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran contends that he has right leg nerve damage directly due to a documented injury he sustained while on active duty. In the alternative, the Veteran asserts that he has right leg nerve damage due to his service-connected varicose veins of the left leg, arthritis of the right foot, and left lower extremity nerve disorder or because these service-connected disabilities caused one of his legs to give way causing the documented fall from a scaffolding in March 2001. The Veteran also requests that he be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There was a recent amendment 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. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, 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. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Regarding a current disability, the May 2011 VA examiner diagnosed the Veteran with sensorimotor, axonal, and demyelinating peripheral neuropathy in his right leg secondary to his type II diabetes mellitus. Similarly, the December 2012 VHA included the opinion that the Veteran's only right leg neurological disability is diabetic neuropathy. As to service incurrence under 38 C.F.R. § 3.303(a), the Board notes that service treatment records show the Veteran suffered from low back, right foot, and leg problems during service. In this regard, January 1973 service treatment records document his complaints and treatment for low back, ankle, and foot pain diagnosed as a low back strain. In November 1981, the Veteran complained of pain in his right foot. He was diagnosed as suffering from a stress fracture in his right foot as well as right Achilles tendonitis. Further, during service, the Veteran suffered from and was treated numerous times for varicose veins in his left leg. It is not clear, however, whether the Veteran also suffered from varicose veins of the right leg. A July 1982 record described the Veteran as suffering from some condition with respect to his right great saphenous vein; the examiner's notes regarding this condition are not legible with respect to what particular condition was observed. Moreover, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of a right leg nerve injury (i.e., pain, numbness, tingling) while on active duty since his low back strain in 1973, right foot injury in 1981, and/or vein problem in 1982, even when not documented in his medical records, because these symptoms come to him through his own senses. See Davidson. However, none of the Veteran's service treatment records, including the records surrounding the low back strain in 1973, right foot injury in 1981, and vein problem in 1982, document his complaints or treatment for a right leg nerve injury and/or disability. Specifically, the Veteran's March 1973 examination and the July 1982 separation examination are negative for symptoms off or a diagnosis of a right leg nerve injury and/or disability despite a history of low back pain being reported in March 1 973. Furthermore, when examined in March 1973 as well as for separation in July 1982 not only did the Veteran not report a history of nerve injury but his neurological and lower extremities examinations were normal. These medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). While the Veteran as a lay person is competent to report on his symptoms of a right leg nerve injury because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of a chronic nerve disability because such an opinion requires medical expertise that he does not have. See Davidson. Therefore, the Board finds more compelling the service treatment records, including treatment records surround the low back strain in 1973, right foot injury in 1981, and vein problem in 1982 as well as the subsequent service treatment records including the March 1973 examination and the July 1982 separation examination, which are negative for a history of or a diagnosis of a right leg nerve injury, than the appellant's claims that he had problems with adverse neurological symptomatology in his right leg since the low back strain in 1973, right foot injury in 1981, and/or vein problem in 1982. Accordingly, the Board finds that the most competent and credible evidence does not show that the Veteran had right leg nerve damage while on active duty. Therefore, the Board finds that entitlement to service connection for right leg nerve damage must be denied based on in-service incurrence despite the low back strain in 1973, right foot injury in 1981, and vein problem in 1982 and despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that this regulation is not applicable to the current appeal because the Veteran's right leg neurological disability, diagnosed as diabetic neuropathy, is not listed at 38 C.F.R. § 3.309(a). See Walker. The Board thus finds that entitlement to service connection for right leg nerve damage based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible medical opinion finding a relationship between the Veteran's current right leg neurological disability, diagnosed as diabetic neuropathy, and a disease or injury of service origin. See 38 U.S.C.A. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the March 2004 VA examiner opined the Veteran's right leg symptoms are due to a post-service fall in March 2001 with calcaneus fracture and subsequent surgeries. Similarly, at the May 2011 VA examination and June 2011 addendum, it was opined that the Veteran's peripheral neuropathy was not due to his in-service injury but due to his recent diabetes. Likewise, the December 2012 VHA including the opinion that the Veteran's diabetic neuropathy was not casually related to his service and it did not have its onset while in service. Furthermore, the December 2012 VHA opined that it is less likely than not that the Veteran had varicose veins of the right leg while in service because there is no documentation of such while on active duty and because the symptoms due to his varicose veins in his left leg are worse than his right leg, and symptoms become worse over time, it appears that his left leg varicose veins have been there longer. These opinions are not contradicted by any other medical opinion of record. See Colvin. As to the Veteran's, his wife's, his friends/co-workers, and his representative's assertions that the claimant's right leg nerve damage was caused by service, the Board finds the VA examiners and VHA medical opinions more credible than these lay claims because physicians have more expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Moreover, the Board finds that diagnosing right leg nerve damage requires special medical training that these lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson. Thus, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence. Jandreau. Therefore, the Board finds that the most competent and credible evidence of record does not show that the Veteran's current right leg neurological disability, diagnosed as diabetic neuropathy, was caused by his military service. Accordingly, the Board finds that entitlement to service connection for right leg nerve damage is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d). As for secondary service connection under 38 C.F.R. § 3.310, the Veteran maintains that his right leg nerve damage was either caused or aggravated by his service-connected varicose veins of the left leg, arthritis of the right foot, and/or left lower extremity nerve disorder or these same service-connected disabilities causing his leg to give way causing his fall from a scaffold in March 2001 and this fall caused his right leg nerve damage. As to the Veteran's contention that his service-connected disabilities caused or aggravated right leg nerve damage, the Board notes that the record is negative for a competent and credible medical opinion finding a relationship between his current right leg neurological disability, diagnosed as diabetic neuropathy, and his service-connected varicose veins of the left leg, arthritis of the right foot, and/or left lower extremity nerve disorder. See 38 U.S.C.A. § 1131; Allen. In fact, the March 2004 VA examiner opined that none of the Veteran's right lower extremity symptoms are primarily or secondarily due to his service-connected left leg varicose veins because they are due to post-service fall in March 2001 with calcaneus fracture and subsequent surgeries. Likewise, the September 2005 VA examiner opined that the Veteran nerve damage in his legs is not likely to be from his service-connected left leg varicose veins because they are likely due to the back injury he sustained in the March 2001 fall. Similarly, the December 2009 VA examiner opined that the Veteran's service-connected left leg varicose veins would not likely have caused nerve damage or neuropathy. Furthermore, at the May 2011 VA examination and June 2011 addendum, it was opined that none of the symptoms of the right lower extremity are either primarily or secondarily due to his service-connected left leg varicose veins because they are due to his post-service fall in March 2001 with calcaneus fracture and subsequent surgeries. Lastly, the December 2012 VHA including the opinion that it is less likely than not that the service-connected varicose veins of the left leg, arthritis of the right foot, and/or left lower extremity nerve disorder caused or aggravated the Veteran's nerve condition in his right leg because this nerve condition is due to diabetes and none of the service-connected disabilities could lead to diabetes. These opinions are not contradicted by any other medical opinion of record. See Colvin. As to the Veteran's assertion that his service-connected disabilities caused his leg to give way and the fall caused his right leg nerve damage, the Board notes that medical records found in the claims file show that the Veteran was injured in a March 2001 fall at work. The Veteran was standing on scaffolding 10 feet above the floor when he fell, landing on his back and leg. A March 2002 progress report from Chattanooga Orthopedic Clinic states that the Veteran underwent an open reduction and internal fixation for his calcaneus fracture. A November 2005 VA treatment record noted that the Veteran also underwent lumbar decompression following his 2001 fall. Since that decompression, the Veteran was reported continuing numbness in his lower extremities and difficulty ambulating. Moreover, in a July 2005 letter, a co-worker of the Veteran's competently and credibly reported that he observed that the claimant's left leg would buckle and that the appellant would lose his balance. He also noted that, on March 19, 2001, the Veteran was standing on scaffolding when his left leg gave out on him and he fell from the scaffolding. Similarly, in a January 2006 letter, the Veteran competently and credibly stated that his left leg was weak and would lead to his falling. The Veteran reiterated these contentions in a number of other letters including one dated in June 2006, stating that he fell from scaffolding after his left leg gave out on him. The record also contains similar claims from the Veteran's wife. However, the Board notes that the record is negative for a competent and credible medical opinion finding that the Veteran's current right leg neurological disability, diagnosed as diabetic neuropathy, was caused by his fall from the scaffolding in March 2001. See 38 U.S.C.A. § 1131; Allen. In this regard, while the March 2004 VA examiner attributed the Veteran's right leg and lower extremity "symptoms" (the examiner was not clear as to what symptoms the Veteran suffered from other than pain) to his March 2001 fall with calcaneus fracture, he did not opine that the fall was caused by a service-connected disability causing his leg to give way. The December 2012 VHA including the opinion that the Veteran's service-connected left leg never damage could have lead to instability of the leg and this caused the leg to give out causing him to fall. However, it was thereafter stated by the VHA specialist that it is less likely than not that the fall caused his current right leg neurological disability diagnosed as diabetic neuropathy. The VHA reached this conclusion because electromyography (EMG) in 2005 and 2007, after the March 2001 fall, failed to show any nerve condition in the right leg but after being diagnosed with diabetes in 2009, his EMG in 2011 showed signs of diabetic neuropathy. As to the lay claims from the Veteran, his wife, his friends/co-workers, and his representative regarding the claimant's right leg nerve damage being due to a service-connected disability or being due to a service-connected disability causing his legs to give way and thereby causing the fall from the scaffolding in 2001 which fall caused the right leg nerve injury, the Board finds the VA examiners and VHA opinions more probative than these lay claims because physicians have more expertise. Black. The Board also finds that diagnosing right leg nerve damage and providing an opinion as to whether the severity of his service-connected disabilities to his lower extremities are such that they could cause his legs to give way causing a fall requires special medical training that these lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson. Thus, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that his right leg nerve damage was due to a service-connected disability is not competent evidence. Jandreau. Therefore, the Board finds that the preponderance of the most competent and credible evidence of record shows that the Veteran's right leg neurological disability, diagnosed as diabetic neuropathy, was neither caused nor aggravated by his service-connected varicose veins of the left leg, arthritis of the right foot, and/or left lower extremity nerve disorder including a fall caused by his left lower extremity nerve disorder. See Allen. Accordingly, the Board finds that entitlement to service connection for right leg nerve damage is not warranted on a secondary basis because the weight of the competent and credible evidence is against finding a causal association or link between the disorder and an all ready service-connected disability. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310. Accordingly, the Board must conclude that entitlement to service connection for right leg nerve damage must be denied on a direct and secondary basis because the weight of the evidence is against the claim. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most competent and credible evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right leg nerve damage is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs