Citation Nr: 1329719 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-15 132 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than November 29, 2010 for the grant of service connection for peripheral neuropathy of the right lower extremity. 2. Whether new and material evidence, sufficient to reopen a claim of service connection for peripheral neuropathy of the right upper extremity, has been received. 3. Whether new and material evidence, sufficient to reopen a claim of service connection for peripheral neuropathy of the left upper extremity, has been received. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and March 2011 rating decision of the RO. Regarding the former, the RO in essence denied entitlement to service connection for peripheral neuropathy of the right and left upper extremities. Regarding the latter, the RO granted service connection for peripheral neuropathy of the right lower extremity. As to the March 2011 rating decision, the Veteran is contesting the effective date of service connection assigned. The Board notes that the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. In October 2010, he indicated that he would accept a VA examination in lieu of the DRO hearing but that he wished to reserve the right to testify at a hearing in the future. The Veteran was afforded the requested VA examination and did not request that a DRO hearing be scheduled. Thus, the Board concludes that he withdrew his DRO hearing request. The RO previously denied service connection for peripheral neuropathy of the bilateral upper extremities by October 2002 rating decision that became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). In its present adjudication, the RO decided the claim of entitlement to service connection for peripheral neuropathy of the right upper extremity on the merits and failed to apply the new and material evidence standard. Regarding the left upper extremity, the RO reopened the finally decided claim, which it ultimately denied. A previously decided claim may not be reopened in the absence of new and material evidence. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Further, regardless of RO action, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Id. The issues of whether new and material evidence, sufficient to reopen a claim of service connection for peripheral neuropathy of the right upper extremity, has been received and whether new and material evidence, sufficient to reopen a claim of service connection for peripheral neuropathy of the left upper extremity, has been received are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran filed a reopened claim of entitlement to service connection for peripheral neuropathy of the right lower extremity in May 2008. 2. Peripheral neuropathy of the right lower extremity was not shown until November 29, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than November 29, 2010 for the grant of service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations impose obligations on VA to provide those claiming VA benefits with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Regarding the issue of entitlement to an effective date earlier than November 29, 2010 for the grant of service connection for peripheral neuropathy of the right lower extremity, the March 2011 supplemental statement of the case included citation to the provisions of 38 C.F.R. § 3.400 and discussion of the legal authority governing effective dates. In any event, VCAA notice or development is not required as to the earlier effective date issue decided herein because that claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). See also Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), and cases cited therein (holding that VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter). Earlier Effective Dates: Service Connection In general, the effective date of an award of compensation or pension based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date for an award of service connection and disability compensation, based on an original claim, is 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 date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(l); 38 C.F.R. § 3.400(b)(2). The effective date for the grant of service connection based on a claim reopened after a final determination "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof." 38 U.S.C.A. § 5110(a). When there is a final denial of a claim, and new and material evidence is received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) and (r). The Veteran contends that he is entitled to an effective date earlier than November 29, 2010 for the grant of service connection for peripheral neuropathy of the right lower extremity. In October 2002, the RO denied entitlement to service connection for peripheral neuropathy of the right lower extremity. The Veteran was sent notice of the denial that month. However, he failed to initiate an appeal, timely or otherwise, and the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 1103 (2013); see also 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2013) (outlining the procedures and time limitations for appealing adverse RO determinations to the Board). In such situations, the earliest effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) and (r). Here, after the final disallowance, the Veteran's claim of entitlement to service connection for right lower extremity peripheral neuropathy was received on May 16, 2008. On VA examination in July 2002, no peripheral neuropathy of the right lower extremity was diagnosed. In December 2008, the Veteran was afforded a VA diabetes mellitus examination. The Veteran reported numbness of the feet since 2004. On objective examination, there was normal sensation to vibratory touch on the right lower extremity as well as normal reflexes. The diagnosis was of diabetes mellitus type II with complications of mild peripheral neuropathy of the left lower extremity and symptoms suggestive of peripheral neuropathy of the right lower extremity with a normal examination. On November 29, 2010 VA examination, the Veteran reported numbness and tingling of both feet since 2004. There was loss of pinprick sensation of both feet. The examiner diagnosed, in pertinent part, peripheral neuropathy of the lower extremities. While the Veteran may have experienced symptoms of peripheral neuropathy of the right lower extremity before November 29, 2010, all testing was normal, and the disability was not diagnosed until November 29, 2010. The Board emphasizes that symptoms without underlying diagnoses do not constitute disabilities. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (holding that 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). The earliest possible effective date for the grant of service connection for right lower extremity peripheral neuropathy is May 16, 2008, the date of claim. 38 C.F.R. § 3.400(q)(1)(ii) and (r). Here, however, all diagnostic tests were normal on or about that date, and the disability was not diagnosed until November 29, 2010. Because the disability arose after the date of claim, the effective date is the date entitlement arose, which in this case is November 29, 2010. Id. The Board notes that it cannot rely on the Veteran's representations regarding the date of onset of right lower extremity peripheral neuropathy, as they do not constitute competent medical evidence. Indeed, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), neurological disabilities fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summary, based upon a complete review of the evidence on file, and for reasons and bases expressed above, the Board finds that November 29, 2010 is the earliest effective date assignable for the award of service connection for right lower extremity peripheral neuropathy as a matter of law. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400; see also Sabonis, supra. ORDER An effective date earlier than November 29, 2010 for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. REMAND A remand is required in this case to assist the Veteran with his claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In certain situations, VA's duty to assist requires that a medical examination or opinion be provided. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). We respect to finally decided claims, VA has no duty to provide a VA medical examination or opinion unless and until the claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). However, when VA does undertake to provide a VA medical examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this instance, a November 2010 VA medical examination report indicated a diagnosis of peripheral neuropathy of the upper extremities. An opinion as to etiology, to include whether the disability was secondary to service-connected diabetes mellitus type II, however, was not provided. Next, in January 2011, the Veteran was afforded another VA medical examination. The diagnosis was of bilateral moderate to severe median neuropathies of both wrists with demyelinating features as well as no significant electrodiagnostic evidence of diabetic polyneuropathy although there was slightly decreased amplitudes on bilateral ulnar sensory nerve conduction study, which, according to the examiner could be related to "body habitus." The Board notes that the examiner did not comment upon the definitive diagnosis of peripheral neuropathy of the upper extremities rendered in November 2010. As well, an opinion as to the etiology of bilateral moderate to severe median neuropathies of both wrists with demyelinating features was not provided. Finally, the examiner did not provide an adequate opinion as to the etiology of slightly decreased amplitudes on bilateral ulnar sensory nerve conduction study. 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). As well, the examiner did not indicate whether the Veteran's "body habitus" encompassed his service-connected diabetes mellitus type II. The Board will ask that a new examination regarding the claim of entitlement to service connection for peripheral neuropathy of the upper extremities be conducted. The examination instructions are contained in the second paragraph below. The record contains VA clinical treatment records dated through July 2012. In order to ensure that the record in complete, all VA clinical records dated from August 1, 2012 to the present should be added to the record. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the record all VA clinical records dated from August 1, 2012 to the present. 2. Schedule a VA medical examination for a diagnosis of all neurologic abnormalities of the upper extremities. Regarding each diagnosis, the examiner must opine regarding whether it is at least as likely as not (50 percent or greater likelihood) related to service OR proximately due, the result of, or aggravated by the service-connected diabetes mellitus type II. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions expressed. If the VA clinician concludes that a conclusive opinion cannot be rendered without resorting to speculation, the clinician should precisely state the reasons for this conclusion, addressing what facts cannot be determined, whether all procurable and assembled data have been considered, and whether additional research, examination, or testing might facilitate a conclusive opinion. The examiner must review all pertinent documents in the claims file in conjunction with the examination and indicate in the examination report whether the requested review took place. 3. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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 or by the Court 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs