Citation Nr: 1335532	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-04 413	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to diabetes mellitus.

2.  Entitlement to service connection for left eye retinopathy, to include as secondary to diabetes mellitus.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to May 1968.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO).    

In June 2011, the Board remanded the appeal for further development, which has been completed, but only with regard to the issue of service connection for peripheral neuropathy of the bilateral upper extremities.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In the June 2011 decision, the Board also remanded the issues of entitlement to service connection for peripheral neuropathy for the bilateral lower extremities and penile dysfunction.  In a subsequent rating decision issued in August 2012, the RO granted service connection for these disabilities.  Accordingly, those issues are no longer on appeal.

In an August 2012 statement, the Veteran's representative raised informal claims for service connection for scars and entitlement to special monthly compensation due to loss of use of a creative organ.  These claims are referred to the agency of original jurisdiction (AOJ) for appropriate action. 

The issue of entitlement to service connection for left eye retinopathy, to include as secondary to diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

There is no diagnosis of peripheral neuropathy or diabetic peripheral neuropathy of the bilateral upper extremities.
CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met.  38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  A letter sent in March 2005 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  A letter sent in March 2007 notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

To the extent that the Dingess notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The procedural defect was cured because after the RO provided content-complying VCAA notice after the claim was readjudicated, in the supplemental statement of the case (SSOC) issued in August 2012.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). 

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  The Veteran was afforded a VA examination in August 2011.  The Veteran has not argued, and the record does not reflect, that the August 2011 VA examination report is inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486.  

Analysis

Service connection will be granted if it is shown that the Veteran suffers from a 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 the line of duty, during active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  

To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  For those conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013).  

The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309(e).  These diseases include acute and sub-acute peripheral neuropathy, among others.  38 C.F.R. § 3.309(e) (2013).  Here, exposure to an herbicide is conceded as the evidence supports that the Veteran set foot on the landmass of Vietnam during the requisite period of time.  

Failure to establish presumptive service connection based on herbicide exposure does not preclude the Veteran from establishing direct service connection.  See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). 

For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service treatment records do not reflect complaints of neurologic symptoms in the Veteran's upper extremities.  There also is no clinical diagnosis of peripheral neuropathy affecting the bilateral upper extremities in the records.  The May 1968 separation examination did not reveal abnormalities of the upper extremities.

Post-service VA treatment records show the Veteran underwent a nerve conduction study/electromyography study (NCV/EMG) in March 2005.  There was no evidence of peripheral neuropathy, cervical radiculopathy, or any neuropathy affecting the upper extremities.

VA records show a complaint of an upper extremity tremor in 2007.  The clinical assessment was intentional tremor possibly linked to a diabetic neuropathy since diabetes present for more than 17 years.  The records do not show a diagnosis of bilateral upper extremity peripheral neuropathy.  The Veteran underwent an NCV/EMG in December 2007 and that study revealed no evidence of a generalized peripheral neuropathy.

On the Veteran's December 2008 Spinal Cord Injury (SCI) Annual Assessment, he reported joint pain in his bilateral shoulders and other areas.  The notes indicate that a right shoulder MRI in April 2008 revealed supraspinatus tendinosis.  The Veteran was determined to have intermittent left ulnar neuropathy due to compression from placement of his elbows at work.  He was offered, but declined, elbow replacements.  Peripheral neuropathy of the upper extremities was not assessed.

The Board remanded the claim in June 2011 for a VA examination to determine whether the Veteran had peripheral neuropathy of the bilateral upper extremities and if so, the etiology of that condition.

At an August 2011 VA examination, a VA examiner reviewed the claim file and conducted a physical examination.  The examiner noted that on EMG/NCV testing in 2005 the Veteran was found to be normal without any upper extremity neuropathy.  At that time, he was diagnosed with unrelated left shoulder impingement syndrome with symptoms of pain unrelated to diabetes.  On current physical examination, there were no complaints of pain, paresthesias/dysesthesias, or numbness.  The neurologic examination was also normal with respect to the upper extremities.  Based on the examiner's review of the claim file and clinical examination, he determined that the Veteran does not have upper extremity peripheral neuropathy.  

The Veteran asserts that he has peripheral neuropathy of the bilateral upper extremities that is related to his military service, in the alternative, is secondary to his service-connected type 2, diabetes.  

Lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

As a layperson, the Veteran is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1377).  

Whether the Veteran currently has peripheral neuropathy and whether it is related to his military service and/or service-connected type 2, diabetes falls outside the realm of common knowledge of a lay person.  Rather, this is a complex medical question that even a physician requires clinical testing to determine, and thus is not capable of direct lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Accordingly, the Veteran's unsupported lay statement indicating that he currently has a disability manifested as diabetic peripheral neuropathy of the bilateral upper extremities is neither competent nor probative evidence supporting his claim.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. 

As the Veteran's lay evidence is not competent evidence on the material issues of fact pertaining to a current diagnosis, the Board looks to the medical evidence.  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

The only competent medical evidence with respect to the question of whether the Veteran has peripheral neuropathy, diabetic or otherwise, affecting his bilateral upper extremities is the August 2011 VA examination report.  This examination report clearly establishes that the Veteran does not have diabetic peripheral neuropathy of the upper extremities, and there is no contrary medical finding or opinion in the record.  

While the Veteran may have been exposed to herbicides in service, and currently suffer from type 2 diabetes, there is no competent evidence showing he suffers from peripheral neuropathy of the upper extremities that is related to his military service or his service-connected diabetes.  In the absence of a current disability diagnosed as peripheral neuropathy of the upper extremities, service connection for peripheral neuropathy of the bilateral upper extremities is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

In addition, although the Veteran's December 2008 SCI Annual Assessment revealed intermittent left ulnar neuropathy in his left upper extremity, that condition was directly linked to compression from placement of his elbows at work.  There was no mention of his service-connected diabetes or military service.  Moreover, the August 2011 VA examiner has indicated that the Veteran does not have peripheral neuropathy.  As there is no competent evidence that intermittent left ulnar neuropathy manifested in service or is otherwise related to service, service connection for this specific condition is not warranted.

The preponderance of the evidence is against the claim of service connection, there is no doubt to be resolved; and service connection for peripheral neuropathy of the bilateral upper extremities is not warranted. 


ORDER

Service connection for peripheral neuropathy of the bilateral upper extremities is denied. 


REMAND

The Veteran seeks service connection for left eye diabetic retinopathy secondary to service-connected type 2, diabetes.  On VA examination in August 2011, an examiner determined that the Veteran does not have diabetic retinopathy, but does have a left eye cataract (nuclear sclerosis) and a retinal scar from a previous laser procedure for a retinal tear.  The examined opined that the cataract and retinal tear are less likely than not caused by the Veteran's diabetes; however, he did not specifically opine as to whether either of those conditions are aggravated by the service-connected diabetes.  That opinion is inadequate for the purposes of adjudication because no rationale was provided and because an opinion regarding aggravation was omitted.  

On remand, the RO must contact the Veteran and ask that he identify any additional, pertinent VA and non-VA treatment records that are outstanding.  Any additional, pertinent, VA treatment records must then either be made accessible on Virtual VA or be printed and added to the file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2). 

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and contact information for all private treatment received for his left eye disability.  Then, obtain copies of all such records not already of record, including any pertinent VA treatment records dated since September 2011.  Negative responses must be in writing and associated with the claim file.

2.  After any additional records are associated with the claim file, return the file to the VA examiner who provided the August 2011 opinion to prepare an addendum to the VA examination report.  If that examiner is unavailable, the claim file must be sent to another VA examiner with appropriate expertise.  

The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. 

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any of the chronic left eye disabilities noted in the VA treatment records during the course of this appeal (i.e. cataracts, retinal scar from prior retinal tear s/p laser treatment, and posterior vitreous detachment) had onset in service; or, are related to service; or, are either caused or aggravated by his service-connected type 2, diabetes.  

In providing this assessment, the examiner is to specifically to address each of the three left eye conditions noted above.

The examiner is further advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. 

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

3.  Then, readjudicate the appeal.  If the benefit sought remains denied, issue a SSOC and return the case to the Board.   

The appellant 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).





______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs