Citation Nr: 1322009	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  10-28 512	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for peripheral neuropathy of the lower extremities.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Meawad, Counsel








INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. 

The Veteran served on active duty from April 1951 to November 1953 and from March 1958 to August 1979. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

Peripheral neuropathy of the lower extremities was not affirmatively shown to have been present during service and is unrelated to an injury, disease or event during service.


CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy of the lower extremities have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).









The Veterans Claims Assistance Act of 2000 (VCAA)

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 a claim. 

Duty to Notify

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-adjudication VCAA notice by letter, dated in August 2008. As for the content and the timing of the VCAA notice, the document 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) (pre-adjudication VCAA notice); 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 a claim.  The RO has obtained service treatment records and VA records and private medical records. 

As there is no evidence that peripheral neuropathy of the lower extremities may be associated with an established injury or disease in service or a service-connected disability, a VA medical examination or VA medical opinion is not required to decide the claim under 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110 and 1131.  





Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a). 

Evidentiary Standards

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 from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

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 weight or probative value 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). 

Evidence and Analysis

The Veteran does not argue and the evidence does not show that peripheral neuropathy of the lower extremities had onset in service or that chronicity or continuity of symptomatology apply or the disability is otherwise related to an injury or disease or event in service. 

The Veteran does argue that the disability is due to a back disability.  

The record shows that in a rating decision in October 2012 the RO denied service connection for a back disability.  

As there is no service-connected back disability, there is no factual or legal merit to the claim of secondary connection for peripheral neuropathy of the lower extremities.  And the Board need not reach the question of the competency or credibility of the Veteran's lay evidence.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

      (The Order follows on the next page.).
      




ORDER

Service connection for peripheral neuropathy of the lower extremities is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs