Citation Nr: 1338187 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-10 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neurological disability of the left lower extremity, to include peripheral neuropathy. 2. Entitlement to service connection for a neurological disability of the right lower extremity, to include peripheral neuropathy. WITNESSES AT HEARING ON APPEAL Veteran and B.C. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1989 to October 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, a video conference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In April 2013, the Board determined that new and material evidence had been received to reopen the claims, and remanded the matters on de novo review for additional development. The Veteran had also initiated appeals of denials of service connection for neurological disability of both upper extremities. An October 2013 rating decision granted service connection for peripheral neuropathy of both upper extremities. Consequently, those matters are no longer on appeal before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The issues of service connection for depression, entitlement to special monthly compensation based on loss of use of the left upper extremity and loss of use of the right upper extremity, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A neurological disability of the left lower extremity was not manifested in service or in the first postservice year, and the preponderance of the evidence is against a finding that any such disability (to include peripheral neuropathy) is related to his service. 2. A neurological disability of the right lower extremity was not manifested in service or in the first postservice year, and the preponderance of the evidence is against a finding that any such disability (to include peripheral neuropathy) is related to his service. CONCLUSIONS OF LAW 1. Service connection for a neurological disability of the left lower extremity, to include peripheral neuropathy, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. Service connection for a neurological disability of the right lower extremity, to include peripheral neuropathy, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. November 2008, May 2009, and June 2009 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. These letters also informed the Veteran of disability rating and effective date criteria. The Board notes that at the time of the April 2012 hearing, these claims were being processed as claims to reopen; however, at the hearing he was advised (by virtue of the questions posed) that to substantiate the underlying claims he still needed to provide evidence of a nexus between any current disability and his service. The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record. He has not alleged that he has been prejudiced by a notice defect. The Veteran's pertinent service treatment records (STRs) and postservice treatment records have been secured. [VA also made additional efforts to obtain postservice treatment records dating for a one-week period in October 2008 from the VA Medical Center in Salisbury, North Carolina; however, this facility responded that it possessed no records pertaining to the Veteran for that specific period. The Board has determined that VA's development has been exhaustive, and that any further attempts at development for this information would be fruitless.] The RO arranged for a pertinent VA examination with medical opinion in June 2013. See McLendon v. Nicholson, 20 Vet. App. 27 (2006). All of the relevant development requested by the Board's April 2013 remand was fully completed, and therefore the remand orders were fully complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and 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. §§ 1110, 1131; 38 C.F.R. § 3.303. 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); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service and (3) a nexus between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Some chronic diseases (to include organic diseases of the nervous system) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time postservice (one year for organic disease of the nervous system). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). 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). 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). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. The Veteran's STRs do not note any complaints, findings, diagnosis, or treatment of a neurological disability of either lower extremity. It is not shown that a neurological disability of the left lower extremity or of the right lower extremity was manifested during the Veteran's service. An April 2010 (nearly 20 years after his discharge from service) VA podiatry treatment record notes an assessment that the Veteran has diabetes and "likely some degree of peripheral neuropathy." As this is the first mention in the record of any neurological disability of either lower extremity the Board has determined that there is no competent evidence that a neurological disability of either lower extremity was manifested in the Veteran's first postservice year. Consequently (to the extent that lower extremity neurological disability might be considered an organic disease of the nervous system), the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1137 do not apply. Finally, there is no competent evidence of a link between the Veteran's current neurological disabilities of the lower extremities and his service. On June 2013 VA peripheral nerve examination, the Veteran reported that he began having numbness, cramping, and a stinging sensation in his lower extremities in 2008 (i.e., approximately 17 years after service discharge). The diagnosis was bilateral diabetic peripheral neuropathy in the lower extremities; the examiner opined that such disability was less likely as not caused by or incurred in the Veteran's military service. The examiner explained that there was no documentation of peripheral neuropathy in the Veteran's lower extremities in the STRs, that the symptoms of peripheral neuropathy in the Veteran's lower extremities appeared after the onset of his diabetes, and that therefore the neuropathy was most likely due to diabetes (further noting that this is a common complication, and that the Veteran's diabetes has been uncontrolled). In the absence of credible evidence of onset of symptoms in service and continuity since, the question of whether such an insidious process such as peripheral neuropathy may somehow be related to remote service is a medical question beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). The only competent evidence in the record that addresses this question, the opinion of the June 2013 VA examiner is against the Veteran's claim. That opinion is by a medical professional (who is competent to provide it), reflects familiarity with the entire record, and is accompanied by rationale that refers to accurate factual data for support. Significantly, it points (with explanation why) to a nonservice-related etiological factor for the peripheral neuropathy considered more likely, i.e., that it is secondary to the Veteran's nonservice-connected diabetes. It is probative evidence in this matter; because there is no competent evidence to the contrary, it is persuasive. The Veteran's own opinion regarding the etiology of his peripheral neuropathy (relating it to service) is not competent evidence. He is a layperson and does not cite to supporting medical opinion or clinical or medical treatise evidence. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for a neurological disability (to include peripheral neuropathy) of both lower extremities. Hence, the appeal in these matters must be denied. ORDER The appeal seeking service connection for a neurological disability of the left lower extremity, to include peripheral neuropathy, is denied. The appeal seeking service connection for a neurological disability of the right lower extremity, to include peripheral neuropathy, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs