Citation Nr: 1324893 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-05 945 ) 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 right lower extremity, as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to service-connected diabetes mellitus. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the February 2010 substantive appeal, the Veteran requested a Board hearing at the local VA office. He submitted a statement in October 2010 indicating that he did not want to have a hearing before a member of the Board. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2012). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. In this regard, additional VA treatment records were added to the Veteran's physical claims file after the January 2010 statement of the case, which include clinical treatment of the claimed conditions listed above. The Veteran has not submitted a waiver of his right to review of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c) (2012). However, as the issues of service connection for right and left lower extremity peripheral neuropathy are granted herein, the Board may proceed without prejudice to the Veteran. Also, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based is already service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds that, under the specific facts of this case, the claim for a TDIU is a component of the claims for service connection for right and left lower extremity peripheral neuropathy, notwithstanding the prior adjudication of a TDIU by the RO. In this case, the grant of service connection for right and left lower extremity peripheral neuropathy necessarily reflects additional service-connected disabilities and a different, combined rating percentage assumption than were present at the time of the RO's initial adjudication of TDIU. As such, after reviewing the contentions and evidence of record and as further discussed in the Remand section below, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The issue of a TDIU addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current diagnosis of right and left lower extremity peripheral neuropathy. 2. The Veteran is service connected for diabetes mellitus. 3. The right and left lower extremity peripheral neuropathy are proximately due to service-connected diabetes mellitus. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy of the right and left lower extremity have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claims of service connection for right and left lower extremity peripheral neuropathy, as secondary to the service-connected diabetes mellitus, have been considered with respect to VA's duties to notify and assist. Given the favorable outcome adjudicated herein, no conceivable prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a 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); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, peripheral neuropathy (as other organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as other organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Right and Left Lower Extremity Peripheral Neuropathy The Veteran contends that his diagnosed peripheral neuropathy of the right and left lower extremity are secondary to the service-connected diabetes mellitus. As stated above, to prevail on the issue of secondary service causation, the record must show competent evidence of (1) a current disability, (2) a service-connected disability, and (3) a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. After a review of all the evidence, the Board first finds that the evidence shows a current disability of peripheral neuropathy of the bilateral lower extremities. On the question of current diagnosis, in a May 2009 VA examination, the VA examiner diagnosed the Veteran with peripheral neuropathy of the lower extremities. The Board next finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's right and left lower extremity peripheral neuropathy are proximately due to the service-connected diabetes mellitus. In this regard, the June 2009 RO rating decision granted service connection for diabetes mellitus associated with herbicide exposure. On the question of the relationship of currently diagnosed right and left lower extremity peripheral neuropathy to a service-connected disability, the Veteran underwent a VA examination in May 2009. As to the etiology of the diagnosed peripheral neuropathy of the lower extremities, the VA examiner indicated that he could not resolve the issue without resorting to mere speculation. While the examiner noted that the Veteran also had a history of gout, polymyalgia rheumatic, and venous insufficiency, the examiner concluded that an opinion could not be offered without resort to speculation without any explanation or rationale as to why such an opinion required resort to speculation. An examiner's conclusion that an opinion would be speculative cannot be relied upon unless the examiner has explained the basis for such an opinion or the basis is otherwise apparent from the evidence of record. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. Id. at 390. Therefore, the May 2009 VA examiner's opinion is not of probative value in this matter. In support of the claim, in a September 2009 VA treatment report, the Veteran's treating VA physician offered the opinion that the suspected major etiology of the Veteran's neuropathy is diabetes, not gout. The treating VA physician explained that the Veteran presented for a follow-up of his recently diagnosed diabetes mellitus, but noted that the Veteran had associated, severe neuropathy for two years prior to the related diagnosis. Again, in a September 2010 note, the same treating VA physician wrote that, in her opinion, the Veteran's neuropathy is secondary to his service-connected diabetes and not related to (non-service-connected) gout. The VA physician's opinion is competent and probative medical evidence because it is factually accurate, as it appears the Veteran's treating physician had knowledge of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound, albeit brief, reasoning. There is no other competent medical opinion of record against the claim that directly addresses the etiology of the Veteran's right and left lower extremity peripheral neuropathy. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for right and left lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for peripheral neuropathy of the right lower extremity, as secondary to the service-connected diabetes mellitus, is granted. Service connection for peripheral neuropathy of the left lower extremity, as secondary to the service-connected diabetes mellitus, is granted. REMAND In the decision above, the Board has granted service connection for right and left lower extremity peripheral neuropathy, as secondary to the service-connected diabetes mellitus. As previously noted, the RO adjudicated the issue of a TDIU in a February 2007 rating decision. Diabetes mellitus and bilateral lower extremity peripheral neuropathy, as secondary to the service-connected diabetes mellitus, were not service connected at the time of the February 2007 adjudication; therefore, the occupational impairment associated with the (now service-connected) diabetes mellitus and bilateral lower extremity peripheral neuropathy were not considered by the RO in the earlier adjudication of a TDIU. The Veteran is also in receipt of Social Security Administration disability benefits, which was awarded, in part, to the Veteran's complaints of lower extremity pain. In light of the grant of service connection for right and left lower extremity peripheral neuropathy in this Board decision, which will be made effective the date of receipt of claims for service connection, with the potential effect of the initial rating for right and left lower extremity peripheral neuropathy to change the combined schedular rating or provide one rating at 40 percent, the RO should reconsider the issue of TDIU. See 38 C.F.R. §§ 4.16, 4.25 (2012). Even if the combined schedular criteria for consideration of TDIU of 38 C.F.R. § 4.16(a) are not met, the additional occupational impairment and symptoms due to the service-connected diabetes mellitus and bilateral lower extremity peripheral neuropathy will need to be considered to determine whether referral for TDIU under the provisions of 38 C.F.R. § 4.16(b) is warranted. Accordingly, the issue of TDIU is REMANDED for the following action: After implementing the Board's decision to grant service connection for right and left lower extremity peripheral neuropathy, as secondary to service-connected diabetes mellitus, and accomplishing any additional notification and/or development deemed warranted, the issue of entitlement to a TDIU should be readjudicated in light of all the evidence of record, considering additional occupational impairment caused by the right and left lower extremity peripheral neuropathy, along with all other service-connected disabilities. If a TDIU remains denied, the Veteran and his representative should be furnished with an appropriate supplemental statement of the case, and should be afforded the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs