Citation Nr: 1326509	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  07-11 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy of the upper extremities to include as due to exposure to herbicides, or, in the alternative, claimed as secondary to diabetes mellitus, type II.  

2.  Entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114 based on the need for aid and attendance or by reason of being housebound.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from August 1964 to August 1968.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The Veteran relocated during the course of this appeal and the RO in Cleveland, Ohio has assumed jurisdiction.  

In May 2010 and again in December 2012, the Board remanded this claim for additional development.  The Board is satisfied that there was substantial compliance with its December 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  The case has been returned to the Board and is ready for further review.  

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.

The issue of entitlement to SMC is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required.


FINDING OF FACT

The Veteran does not have a diagnosed peripheral neuropathy of the upper extremities disability.


CONCLUSION OF LAW

Peripheral neuropathy of the upper extremities to include as due to exposure to herbicides, or, in the alternative, claimed as secondary to diabetes mellitus, type II was not incurred in active service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the notice requirements apply to all five elements of a service connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

The RO's March letter advised the Veteran of the foregoing elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  It is noted that the letter did not address secondary service connection; however corrected notice addressing this theory of entitlement was sent to the Veteran in January 2013.  This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date.  See Dingess/Hartman, 19 Vet. App. at 486.  Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. 

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA provided the Veteran with a VA examination to determine the etiology of his periphery neuropathy of the upper extremities complaints.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  This medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  In this regard, the Board also finds that there has been substantial compliance with its December 2012 remand as the RO provided the Veteran with an adequate VA examination.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. 

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  Service connection may also 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).  

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a);Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) 

Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  
Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question"  Id. or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Id. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Id. 

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2012).  The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and a presumption of exposure even though there is no record of such disease in service.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).  These diseases include chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  

Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995).  The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with the decision of the United States Court of Appeals for Veterans Claims (Court) in Allen.   

In rendering a decision on appeal, the Board must 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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left shoulder disability.

The service treatment records are absent for any documentation or complaints of peripheral neuropathy of the upper extremities.  In addition, there is no evidence of a current peripheral neuropathy of the upper extremities disability.  The post-service treatment records make no reference to the disorder.  Further, on examination by VA in January 2013, the examiner found that the Veteran had no symptoms attributable to peripheral nerve conditions of the right or left upper extremity including pain, paaresthesias or dysesthesias, or numbness.  Sensory examination of the upper extremities was normal.  Radial nerve findings were normal bilaterally as were the ulnar and median nerve findings.  Musculocutaneous findings were normal bilaterally, circumflex nerve findings were normal, long nerve findings were normal, and upper, middle and lower radicular group findings were normal.  

The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  

Moreover, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Falzone v. Brown, 8 Vet. App. 398, 405 (1995); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet App 303, 308-09 (2007); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder.  Peripheral neuropathy is not a condition generally capable of lay diagnosis, although its symptoms might be described by a lay person, nor is it the type of condition that can be causally related to military service or associated with a specific etiology without medical expertise.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  The Board concludes that, although the Veteran may be able to report symptoms, the statements as to whether he has a current disability do not constitute competent evidence.  Therefore, the Veteran's statements related to a diagnosis do not constitute competent evidence.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110 , 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  The Court has held that symptoms alone without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  As such, without a disability, service connection cannot be granted.  See Degmetich, 104 F. 3d at 1332; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Without evidence of a current diagnosis of upper extremity peripheral neuropathy, a preponderance of the evidence is against the Veteran's claim for service connection.  No further discussion of the remaining elements of a service connection on a direct or secondary basis or as due to exposure to herbicides is necessary.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  The benefit-of-the-doubt rule does not apply and the claim for service connection for a must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

ORDER

Service connection for peripheral neuropathy of the upper extremities to include as due to exposure to herbicides, or, in the alternative, claimed as secondary to diabetes mellitus, type II is denied.  


REMAND

The Veteran seeks SMC under 38 U.S.C.A. § 1114(s) which provides that SMC  will be granted if a Veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, or is permanently housebound by reason of a service-connected disability or disabilities.  See also 38 C.F.R. § 3.350(i) (2012).  

During the course of this appeal, in February 2013, the Veteran was granted service connection for coronary artery disease associated with diabetes mellitus, rated as 60 percent disabling; peripheral neuropathy of the right lower extremity associated with diabetes mellitus, rated as 30 percent disabling; peripheral neuropathy of the left lower extremity associated with diabetes mellitus, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; and erectile dysfunction associated with diabetes mellitus, rated as noncompensable.  Additionally, he was granted a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).  

The Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), that a TDIU rating could serve as the "total" service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC as provided in § 1114(s).  The record is unclear as to whether the TDIU rating for the Veteran was provided for a single disability.   

If any of the Veteran's disorders substantiate the TDIU rating by itself, then the Veteran's remaining service-connected disorders may be sufficient to warrant award of the SMC provided in 38 U.S.C.A. § 1114(s).  Therefore, on remand, the Veteran should be examined to determine whether any one of his disabilities render him unemployable.  The evidence addressing the Veteran's factual entitlement to aid and attendance/housebound is unclear and thus on remand, the VA examiner should address this issue.  

Accordingly, the case is REMANDED for the following actions:

1.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.

2.  Schedule the Veteran for an examination to determine whether any one of his service-connected disabilities renders him unemployable, and an opinion as to whether the Veteran is entitled to SMC based on a need for aid and attendance or housebound status as a result of his service-connected disabilities.   

The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiners in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review.  An entire copy of this remand must be provided to the examiner.  

Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. 

The examiner should address the following inquires:

(a)  Is it at least as likely as not (a probability of 50 percent or greater) that any single service-connected disability (see pages 9-10 of this remand for a listing of service-connected disabilities) renders the Veteran unable to secure and follow a substantially gainful occupation taking into consideration his prior work experience?

(b) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran is entitled to SMC based on a need for aid and attendance or is housebound as a result of his service-connected disabilities. 

The examiner should address in the examination report whether the following are present as a result of the Veteran's service-connected disabilities: 

* Inability to dress or undress himself or to keep himself ordinarily clean and presentable; 

* Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); 
* inability to attend to the wants of nature; 

* inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or 

* incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment.  See 38 C.F.R. § 3.352(a) (2012). 

3.  The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4.  After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand.  If the report is deficient in any manner, the RO must implement corrective procedures at once.  

5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated.  If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto.  The appeal must then be returned to the Board for appellate review.  


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).





____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs