Citation Nr: 1319603 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 13-06 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity secondary to diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from September 1951 to September 1961, and from September 1965 to March 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). Preliminarily, the Board observes that in the June 2010 rating decision on appeal, the RO characterized the issues on appeal as applications to reopen previously denied claims for service connection for peripheral neuropathy of the left and right lower extremities. In this regard, service connection for peripheral neuropathy of the left and right lower extremities was initially denied by a July 2009 rating decision. Although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the July 2009 rating action, VA was in receipt of new and material evidence within one year of a rating decision addressing the condition and must relate it back to this original claim. 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Specifically, in January 2010, the Veteran submitted a statement from a private podiatrist relating to evidence of a current disability. Thus, the June 2010 rating action did not become final and remains pending. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the July 2009 rating action is the proper determination certified for appellate review. Additionally, in a statement dated in January 2010, but received by VA in April 2010, the Veteran requests that his previously denied claim for service connection for erectile dysfunction be reopened. The matter is referred to the Agency of Original Jurisdiction for appropriate action. 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 The most probative medical evidence shows that the Veteran does not currently have peripheral neuropathy of the bilateral lower extremities, nor has he had such a disorder throughout the pendency of this appeal. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the left and right lower extremities, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The VA has a duty to provide notification to the claimant with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). In the present case, VA's notice requirements were fulfilled by a letter dated in March 2009, which informed the Veteran of the criteria for establishing service connection on both a direct and secondary basis, the evidence he is responsible for obtaining and the evidence VA would obtain on his behalf, and the methods by which VA determines disability ratings and effective dates. This notice was also provided to the Veteran prior to the initial adjudication of his claim. The Board also finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issue on appeal has been obtained, including the Veteran's service records, VA treatment records, and private treatment records. Moreover, the Veteran was provided with relevant VA examinations to address the nature and etiology of any currently-diagnosed peripheral neuropathy, and the Board finds that the examination, which failed to reveal any such diagnosis, is sufficient for adjudicatory purposes. Specifically, the report reveals that the examiner conducted a detailed physical examination, elicited a comprehensive history from the Veteran, conducted diagnostic testing, and reviewed the Veteran's claims file, including his records of prior treatment and conflicting medical evidence. The Board is cognizant that the Veteran's service representative has requested that, if the Veteran's claims cannot be granted, they should be remanded to afford the Veteran a new VA examination with a specialist. Significantly, however, the representative did not specifically assert or provide evidence showing that the January 2013 opinion is insufficient or inadequate. Nor did the representative submit evidence to rebut the presumption that the January 2013 examiner, a physician's assistant, is competent. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (VA examiners are presumed competent). Accordingly, the Board finds that remand for a new VA examination is not warranted. Finally, regarding the duty to assist, the Veteran was also afforded the opportunity to testify at a Board hearing a Veterans Law Judge, but declined. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the appellant with the development of evidence is required. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Disability which is proximately due to a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that he suffers from peripheral neuropathy of the lower extremities as a result of his service-connected diabetes mellitus. He variously reports pain, tingling, burning, and numbness in his feet. The record shows that the Veteran was diagnosed with diabetes mellitus around September 2006. In September 2008, he presented for initial private podiatric treatment reporting that his feet bother him while playing golf and during a walking program. At that time, neurologic examination, to include monofilament testing of the feet, was within normal limits. The Veteran was diagnosed with metatarsalgia. Thereafter, the Veteran continued to complain of lower extremity symptoms, and the private podiatrist diagnosed diabetic peripheral neuropathy. Significantly, however, treatment records do not reflect the basis or rationale for that diagnosis, to include evidence of diagnostic testing. Nevertheless, in a December 2009 statement in support of the Veteran's claim, the podiatrist asserts that the Veteran does have diabetic peripheral neuropathy of the lower extremities. Of note, the podiatrist states that following a thorough examination of the Veteran during the initial visit in September 2008, he diagnosed diabetic neuropathy. However, the podiatrist's own records do not support that statement. Instead, they show an initial diagnosis of metatarsalgia following a negative neurologic examination. Moreover, the private podiatrist's December 2009 statement is similarly not supported by objective findings or diagnostic testing, but rather, appears to be based only on the Veteran's subjective complaints. Nor does the examiner reconcile the diagnosis with the normal September 2008 neurologic examination. Given the inaccurate factual predicate and lack of rationale, the Board accords the December 2009 statement (reiterated in July 2010) little probative value. In contrast, the Board finds probative the July 2009, June 2010, and January 2013 opinions of VA examiners that the Veteran does not have peripheral neuropathy of the lower extremities. Those opinions were collectively based on a review of the claims file, physical examination, and most recently, January 2013 electromyography testing. Moreover, the July 2009 and January 2013 opinions were supported by rationales that account for the Veteran's subjective complaints and the contradictory evidence of record, including the private diagnosis of peripheral neuropathy of the lower extremities. Even further, in finding that the Veteran does not have peripheral neuropathy of the lower extremities, the January 2013 examiner reconciled abnormal EMG findings through clinical correlation with the Veteran's subjective complaints and physical examination findings. For the foregoing reasons, the Board finds the VA opinions of record, and in particular, the January 2013 opinion, to be more probative than the opinion of the private podiatrist. Complaints alone are not a disability, and in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on a careful review of the record, the Board finds that the most probative competent medical evidence of record does not demonstrate that the Veteran currently suffers peripheral neuropathy of the lower extremities. Therefore, service connection for peripheral neuropathy of the lower extremities must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs