Citation Nr: 1339658 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-27 421A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of both upper extremities. 2. Entitlement to service connection for a gastrointestinal disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1968 to January 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Nashville, Tennessee RO. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has peripheral neuropathy of either upper extremity. 2. The preponderance of the evidence is against a finding that the Veteran has a chronic gastrointestinal disability. CONCLUSIONS OF LAW 1. Service connection for peripheral neuropathy of the upper extremities is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). 2. Service connection for a gastrointestinal disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (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. See 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). 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 the claims prior to their initial adjudication. A February 2009 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in these matters was less than adequate. The Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in May 2009. As will be discussed in greater detail below, the Board finds this examination to be adequate, as it included a thorough review of the Veteran's medical history, a physical examination noting all pertinent findings, and medical opinions with adequate supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, 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. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means 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 layperson. 38 C.F.R. § 3.159(a)(2). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b). Service connection has been established for diabetes mellitus and posttraumatic stress disorder (PTSD). The Veteran contends that he has peripheral neuropathy of the upper extremities and a gastrointestinal disability, each secondary to his service-connected diabetes mellitus. Peripheral neuropathy of the bilateral upper extremities The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of peripheral neuropathy of an upper extremity. On November 1969 service separation examination, the upper extremities were normal on clinical evaluation and a neurologic examination was normal; on a contemporaneous report of medical history, the Veteran denied any history of neuritis. On May 2009 VA diabetes examination, the Veteran reported that his hands felt swollen, he experienced tingling in the left hand more than in the right, he experienced numbness in all of his fingers, and he had lost grip strength in his right hand over the previous 10 years. He believed that his symptoms were getting worse. He reported nighttime numbness in the left hand that was relieved by shaking it out; he reported weakness in the right hand with only occasional numbness. When specifically asked about his claim of peripheral neuropathy, the Veteran reported that he gets "nervous" frequently. On physical examination, both upper extremities were normal in temperature, color, and radial pulses, and there were no ulcers or trophic changes. A neurologic exam was normal, with no motor loss or sensory loss to either side, and normal deep tendon reflexes of the biceps, brachioradialis, and triceps. The examiner stated that there was no diagnosis of neurologic disease and noted that the Veteran was not currently being treated for peripheral neuropathy. The examiner opined that peripheral neuropathy was not caused by or a result of type II diabetes mellitus, finding that the Veteran had no complaints or physical findings to support a diagnosis of peripheral neuropathy. On October 2009 VA treatment, the Veteran complained of continuing pain in the right shoulder and hand; X-rays showed degenerative joint disease in the hands and possible old impingement in the shoulder; there were no neurological complaints regarding tingling, numbness, or weakness. The Board finds that the May 2009 examination report is entitled to great probative weight and provides evidence against this claim, clearly finding there is no objective evidence of peripheral neuropathy of the upper extremities. The Veteran has also submitted VA treatment records showing findings similar to those on the VA examination outlined above. There is no evidence that peripheral neuropathy of the upper extremities was manifested in service (the Veteran does not allege otherwise), and no competent evidence that peripheral neuropathy of the upper extremities has been manifested at any time after the Veteran's separation from active duty (and in particular during the pendency of this claim). While the Veteran may be competent to establish by his own accounts (and the Board has no reason to question the accounts) that he has experienced symptoms of tingling and numbness of the upper extremities, the diagnosis of peripheral neuropathy is a complex medical question beyond lay observation; whether perceived losses of sensation, tingling, or numbness reflect an underlying diagnosis of peripheral neuropathy is a medical question that requires medical expertise.. This is not a situation where the diagnosis may be established by lay evidence: The Veteran is not reporting a contemporaneous diagnosis (there is no diagnosis of peripheral neuropathy of the upper extremities); and he does not describe symptoms supporting a later diagnosis (peripheral neuropathy of the upper extremities has never been diagnosed). See Jandreau v. Nicholson, 492 F.3d, 1372 (Fed. Cir 2007). He has not submitted any medical opinion or citation to medical text in support of his claim. The threshold requirement here (as in any claim seeking service connection, direct or secondary) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., peripheral neuropathy of the upper extremities. As the record does not include any such evidence, there is no valid claim of service connection for peripheral neuropathy of the upper extremities. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for peripheral neuropathy of the upper extremities. Accordingly, it must be denied. In denying this claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gastrointestinal disability The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of any gastrointestinal disability. On November 1969 service separation examination, the abdomen and viscera were normal on clinical evaluation; on a contemporaneous report of medical history, the Veteran denied any history of frequent indigestion, or stomach, liver, or intestinal trouble. On May 2009 VA diabetes examination, the Veteran denied any symptoms of gastrointestinal disorders. When specifically asked about his claim of gastrointestinal problems, the Veteran reported that he had noticed a small amount of stool since he was diagnosed with diabetes mellitus: he stated that he now had only one stool per day as opposed to two per day prior to his diagnosis. Following a physical examination, the examiner noted that the Veteran was not currently being treated for a gastrointestinal problem and opined that a gastrointestinal problem was not caused by or a result of type II diabetes mellitus; the examiner found that the Veteran had no complaints or physical findings to support a diagnosis of any specific gastrointestinal condition. On May 2010 VA treatment, the Veteran reported that the Metformin prescribed for his diabetes mellitus had caused a gastrointestinal disturbance, causing the bowels to run; he reported that he stopped taking the medication 2 weeks earlier and the gastrointestinal disturbances had resolved. He was prescribed insulin in place of Metformin. No gastrointestinal disability was diagnosed. The Board finds that the May 2009 examination report is entitled to great probative weight and provides evidence against this claim, clearly finding there is no objective evidence of any chronic gastrointestinal disability. The Veteran has also submitted VA treatment records showing findings similar to those on the VA examination outlined above. There is no evidence that a gastrointestinal disability was manifested in service (the Veteran does not allege otherwise), and no competent evidence that a chronic gastrointestinal disability was manifested at any time after the Veteran's separation from active duty (and in particular during the pendency of this claim). While the Veteran may be competent to establish by his own accounts (and the Board has no reason to question the accounts) that he has experienced gastrointestinal symptoms such as changes in his stool, the diagnosis of a chronic gastrointestinal disability is a complex medical question beyond lay observation; whether perceived symptoms reflect an underlying diagnosis of a chronic gastrointestinal disability is a medical question that requires medical expertise.. This is not a situation where the diagnosis may be established by lay evidence: The Veteran is not reporting a contemporaneous diagnosis (there is no diagnosis of any gastrointestinal disability); and he does not describe symptoms supporting a later diagnosis (a chronic gastrointestinal disability has never been diagnosed). See Jandreau v. Nicholson, 492 F.3d, 1372 (Fed. Cir 2007). He has not submitted any medical opinion or citation to medical text in support of his claim. The threshold requirement here (as in any claim seeking service connection, direct or secondary) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a gastrointestinal disability. As the record does not include any such evidence, there is no valid claim of service connection for gastrointestinal disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for gastrointestinal disability. Accordingly, it must be denied. In denying this claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for peripheral neuropathy of both upper extremities, to include as secondary to diabetes mellitus, is denied. Service connection for a gastrointestinal disability, to include as secondary to diabetes mellitus, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs