Citation Nr: 1325295	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  11-09 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

Entitlement to an effective date earlier than June 17, 2010 for the award of service connection for peripheral neuropathy of the left and right lower extremities.  


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel







INTRODUCTION

The Veteran served on active duty from June 1966 to June 1969.  He was awarded a Combat Infantryman's Badge and a Vietnam Service Medal.  The Veteran served in Vietnam from December 1967 to December 1968.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for peripheral neuropathy of the left and right lower extremities and assigned June 17, 2010 as the effective date for the award.  

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.  


FINDINGS OF FACT

1.  The Veteran did not file a claim for compensation benefits within one year from the date of service separation.  

2.  On February 24, 2006, the Veteran's formal claim for service connection for diabetes mellitus type II was received at VA.  

3.  Service connection for diabetes mellitus type II was granted in July 2007 and a 10 percent disability rating was assigned from February 24, 2006.  

4.  On February 27, 2008, the Veteran's informal claim for an increased rating for diabetes mellitus type II was received at VA.  

5.  In March 2008, a 20 percent rating was assigned to the diabetes mellitus type II from February 25, 2008.  

6.  On November 24, 2008, the Veteran's informal claim for service connection for peripheral neuropathy of the left and right lower extremities was received at VA.

7.  Service connection for peripheral neuropathy of the left and right lower extremities was denied in February 2009 and June 2009.  

8.  On October 26, 2009, a claim to reopen service connection for peripheral neuropathy of the lower extremities was received at the RO.  

9.  Service connection for peripheral neuropathy of the left and right lower extremities was denied in November 2009.   

10.  On June 29, 2010, a claim to reopen service connection for peripheral neuropathy of the lower extremities was received at the RO.  

11.  The June 17, 2010 VA treatment record establishes a diagnosis of peripheral neuropathy of the lower extremities.    

12.  The competent and credible evidence of record does not establish a diagnosis of peripheral neuropathy of the lower extremities prior to June 17, 2010.  


CONCLUSION OF LAW

The criteria for the assignment of an effective date earlier than June 17, 2010 for the award of service connection for peripheral neuropathy of the lower extremities have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155(a), 3.400 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, in this case the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).   

VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

The Board concludes that the Veteran has been afforded appropriate notice under VCAA.  The RO provided a VCAA notice letter to the Veteran in December 2008, in connection with the November 2008 initial claim for service connection for peripheral neuropathy of the lower extremities.  The letter notified the Veteran of what information and evidence must be submitted to substantiate claims for service connection and secondary service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  By letter dated in December 2010, the RO informed the Veteran as how to substantiate the assignment of an earlier effective date.  The claim was readjudicated in a December 2010 statement of the case and an April 2011 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect).

The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO.  The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The December 2008 letter provided the Veteran with notice of the laws regarding degrees of disability or effective dates.  In December 2010, the Veteran informed VA that he had no additional information or evidence to submit in support of his claim.  Accordingly, VA's duty to notify has been satisfied. 

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied.  All available service treatment records were obtained.  

The VA treatment records dated from 2008 to 2010 are associated with the claims folder and virtual VA file.  Private medical records from Dr. R.R. are associated with the claims folder.  There is no identified evidence that needs to be addressed.  

Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  


Legal Criteria

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in a current disability was incurred in active service, or if pre-existing active service, was aggravated therein.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disease diagnosed after discharge when all of 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).

Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995). 

A claim of service connection must be accompanied by medical evidence establishing that the claimant currently has the claimed disability.  Absent proof of a present disability, there can be no valid claim.  See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2).   

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later.  The effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service.  Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(ii).   

The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit.  38 C.F.R. § 3.1(p).  

"Date of receipt" generally means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).  

An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).

VA is required to look to all communications from the appellant that may be interpreted as applications or claims, formal and informal, for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); See Servello v. Derwinski, 3 Vet. App. 196 (1992).  

All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

Analysis

In the present case, the Veteran asserts that an effective date for the award of service connection for peripheral neuropathy of the lower extremities should be in November 20, 2008 when he first filed a claim for service connection for this disorder.  The Veteran contends that although his doctor did not write down this diagnosis, if the Veteran was afforded a VA examination, this disorder would have been detected.  See the November 2010 notice of disagreement. 

Review of the record shows that on November 24, 2008, the Veteran's informal claim for service connection for peripheral neuropathy of the left and right lower extremities was received at VA.  Service connection for peripheral neuropathy of the left and right lower extremities was denied in February 2009 and June 2009.  The Veteran was notified of these decisions and within the one year time period for an appeal, he filed a claim to reopen service connection for peripheral neuropathy of the lower extremities.  On October 26, 2009, the Veteran's claim to reopen service connection for peripheral neuropathy of the lower extremities was received at the RO.  

Service connection for peripheral neuropathy of the left and right lower extremities was denied in November 2009.   The Veteran was notified of this decision and within the one year time period for an appeal, he filed a claim to reopen service connection for peripheral neuropathy of the lower extremities.  On June 29, 2010, a claim to reopen service connection for peripheral neuropathy of the lower extremities was received at the RO.  

A June 17, 2010 VA primary care treatment record establishes a diagnosis of peripheral neuropathy of the lower extremities.  Prior to June 17, 2010, the competent and credible evidence of record does not establish a diagnosis of peripheral neuropathy of the lower extremities.  In a September 2010 rating decision, the RO granted service connection for peripheral neuropathy of the lower extremities and assigned a 20 percent rating to each extremity from June 17, 2010.  The RO indicated that June 17, 2010 was the earliest date of a diagnosis of peripheral neuropathy of the lower extremities.  The RO found that this was the earliest date this entitlement arose.  The RO indicated that medical evidence showed that the peripheral neuropathy of the lower extremities was secondary to the service-connected diabetes mellitus type II.  The RO found that the date the entitlement arose was June 17, 2010, the date of the VA examination that diagnosed the peripheral neuropathy of the lower extremities.   

Review of the record shows that the Veteran filed the initial claim for service connection for peripheral neuropathy of the lower extremities on November 24, 2008.  On October 26, 2009, the Veteran's claim to reopen service connection for peripheral neuropathy of the lower extremities was received at the RO.  However, on the date of receipt of the claims for service connection, a diagnosis of peripheral neuropathy of the lower extremities was not established. 

The private medical evidence of record including the June 2007 statement by Dr. R.R. does not establish a diagnosis of peripheral neuropathy of the lower extremities.  In the June 2007 statement, Dr. R.R. indicates that diabetes was diagnosed in March 2001; there is no mention of a diagnosis of peripheral neuropathy of the lower extremities.  

A February 2008 VA examination report notes that the Veteran had a diagnosis of diabetes since 2001.  It was noted that the Veteran denied neurologic symptoms.  Examination revealed normal gait.  Neurologic examination revealed 2+ deep tendon reflexes, grossly intact, and no sensory deficits.  The impression was diabetes mellitus type II.  

A July 14, 2009 VA neurology consult record indicates that the Veteran reported having parasthesias in both feet for the past several weeks. He reported that his toes felt numb.  He also reported having numbness in the left thigh.  The Veteran denied weakness or incoordination.  He reported that his symptoms were more prominent at night and when he slept.  The Veteran stated that he did not have pain in this feet.  Neurologic examination revealed that gait was erect and steady.  Deep tendon reflexes were 1+ in the bilateral lower extremities.  Tinel's and Phalen's sign were negative.  The assessment was parasthesias in the hands and feet.  The examiner noted that it was doubtful it was diabetic neuropathy as the Veteran's blood sugars were well controlled.  An electromyography was ordered.     

An October 30, 2009 electroneurography report indicates that the electrophysiological studies indicated no apparent entrapment, axonal, or demyelinating neuropathy at that time. 

A June 17, 2010 VA primary care treatment record indicates that the Veteran's blood sugars have been running high lately and he was having problems with bilateral foot pain.  It was noted that as the blood sugar increased, the pain was worse.  The VA physician assistant opined that it was at least as likely as not that the foot pain was from peripheral neuropathy as a consequence of the diabetes.  

A July 2010 VA peripheral neuropathy examination indicates that the Veteran reported having tingling and numbness in his lower extremities for the past three or four days and it has become progressively worse.  He also had pain after sitting for some time and then getting up and walking. The pain lasted for a few minutes.  The diagnosis was moderate right and left lower extremity sensory neuropathy.  The examiner noted that the Veteran had a stocking distribution of neuropathy and it was predominantly sensory.  The examiner further indicated that this was characteristic of diabetes mellitus and it was a known microvascular complication of diabetes mellitus.  The examiner opined that it was at least as likely as not that the neuropathy was secondary to the service-connected diabetes mellitus.  

The effective date for the award of service connection is the date of receipt of the claim or the date the entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2).  The record shows that the Veteran's initial claim for service connection for peripheral neuropathy of the lower extremities was received at VA on November 24, 2008.  However, the peripheral neuropathy of the lower extremities was first detected and diagnosed on June 17, 2010, when the Veteran underwent examination at a VA primary care clinic.  This diagnosis was confirmed by the July 2010 VA examination findings.  The weight of the competent and credible evidence establishes that June 17, 2010 is the date the peripheral neuropathy of the lower extremities arose, and this date is the later date of the date of receipt of claim and the date the entitlement arose.  See 38 C.F.R. § 3.400(b)(2).    

The Veteran has provided lay statements that he had peripheral neuropathy of the lower extremities since November 2008.  The Board finds that the Veteran is competent to report observable symptoms such as pain or numbness in the lower extremities.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation).  The Board has an obligation to determine the credibility of all evidence, lay and medical.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence).  

However, in this case, the Veteran does not describe any observable symptoms in the statements submitted in November 2008 and October 2009.  The Veteran only makes general assertions that he had peripheral neuropathy of the lower extremities that was due to the diabetes mellitus since 2008.  The Board finds that the Veteran is not competent to render a medical diagnosis without medical training and expertise.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the diagnosis and onset of peripheral neuropathy of the lower extremities falls outside the realm of common knowledge of a lay person.  See Jandreau, 492 F.3d at 1377 (lay persons not competent to diagnose cancer).  There is no indication that the Veteran has the appropriate medical training and expertise to offer an opinion on diagnosis and date of onset of the peripheral neuropathy of the lower extremities.  The question of diagnosis of a neurological disorder, in this case, involves complex medical issues that the Veteran is not competent to address.  Jandreau, 492 F.3d at 1377 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.").  Thus, the Board finds that the Veteran's statements that the peripheral neuropathy of the lower extremities began in November 2008 are not competent and therefore have no probative value.  The Veteran's lay statements are not sufficient evidence to establish a diagnosis of peripheral neuropathy of the lower extremities prior to June 17, 2010.  

As noted above, the VA treatment records document complaints of numbness, tingling, and pain in the lower extremities beginning in July 2009.  However, as discussed above, the VA treatment records show that diagnostic testing ruled out neuropathy in October 2009.  Neuropathy of the lower extremities was not diagnosed until examination on June 17, 2010.  The Board finds that the weight of the competent and credible lay and medical evidence shows that the peripheral neuropathy of the lower extremities first arose on June 17, 2010.  Accordingly, under the applicable regulations, June 17, 2010 is the earliest date for the award of service connection for peripheral neuropathy of the lower extremities.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  This is the date of that the entitlement or disability first arose.  Thus, the criteria for an effective date earlier than June 17, 2010 for the award of service connection for peripheral neuropathy of the lower extremities have not been met.  The Board finds that a preponderance of the evidence is against the claim for an earlier effective date; therefore, this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Entitlement to an effective date earlier than June 17, 2010 for the grant of service connection for peripheral neuropathy of the lower extremities is not warranted, and the appeal is denied.    



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs