Citation Nr: 1433771	
Decision Date: 07/29/14    Archive Date: 08/04/14

DOCKET NO.  11-28 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Houston, Texas


THE ISSUES


1.  Entitlement to service connection for claimed peripheral neuropathy of the left upper extremity.  

2.  Entitlement to service connection for claimed peripheral neuropathy of the right upper extremity.

3.  Entitlement to special monthly compensation (SMC) based on the need for aid and attendance.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission




ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from June 1958 to December 1958 and from July 1960 to December 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by RO in Cleveland, Ohio.  

The appeal was certified to the Board by the RO in Houston, Texas.  

The Board acknowledges that additional evidence was added to the record following the September 2011 statement of the case.  In February 2012, the Veteran waived his right to have the case remanded for consideration of any new evidence.  See 38 C.F.R. § 20.1304 (2013).  

Information in the Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge in February 2014, but the hearing was postponed.  It was rescheduled for May 2014, but cancelled by the Veteran.  The hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2013).  

In February 2012, the Veteran submitted a claim for an increased rating for diabetes mellitus type 2.  There is no indication that this issue was adjudicated and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  

In May 2013, the Veteran submitted a claim of entitlement to SMC based on the need for aid and attendance.  As will be discussed, the Board finds that a Notice of Disagreement remains pending as concerns this issue.  Thus, the matter is being remanded to the AOJ.  

The VBMS and Virtual VA folders have been reviewed.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran is not shown to have peripheral neuropathy of either upper extremity.    


CONCLUSIONS OF LAW

1.  The Veteran does not have a disability manifested by peripheral neuropathy of the left upper extremity due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).

2.  The Veteran does not have a disability manifested by peripheral neuropathy of the right upper extremity due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2013) have been met.  By correspondence dated in March 2010 and November 2010, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information he was responsible for providing and of the evidence that VA would attempt to obtain.  He was also provided information regarding the assignment of disability ratings and effective dates.  The appeal was most recently readjudicated in the September 2011 statement of the case.  

VA has also satisfied its duty to assist.  In making this determination, the Board acknowledges that the service treatment records are not located in the claims folder and it is unclear whether they were ever associated with the folder.  See Deferred Rating Decision dated July 13, 2010.  

On review, the Veteran relates the claimed neuropathy to herbicide exposure during Vietnam and/or to service-connected diabetes.  Further, and as discussed below, he is not currently diagnosed with peripheral neuropathy of the upper extremities.  

Under these circumstances, the Board finds that additional efforts to locate the service treatment records are not needed.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided).

The claims folder contains VA medical center records, Social Security Administration records, and private medical records.  The Veteran has not specifically identified records relating to the claimed peripheral neuropathy that need to be obtained.  

The Veteran was provided a VA examination in April 2010.  This examination is deemed to be adequate for the purposes of this appeal and further examination is not needed.  

On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159 (2013).



Laws and Regulations

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Without a currently diagnosed disability, service connection may not be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

Service connection may also be established for certain chronic diseases, including other organic diseases of the nervous system, if manifested to a compensable degree within one year following discharge from active service.  38 C.F.R. §§ 3.307, 3.309(a). 

The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).  The list of diseases associated with herbicides includes early onset peripheral neuropathy.  38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54766 (Sept. 6, 2013) (removing the term "acute and subacute peripheral neuropathy and adding in its place "early onset peripheral neuropathy").  

Early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii); 78 Fed. Reg. 54766.

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).  In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability.  See 38 C.F.R. § 3.310(b). 

It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis.").  

When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)).  

If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37.

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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).


Analysis

In July 2010, the RO denied service connection for peripheral neuropathy of the left and right upper extremities.  The Veteran disagreed and perfected this appeal.  

At the outset, the Board acknowledges that the Veteran served in combat in Vietnam.  See 38 U.S.C.A. § 1154(b) (West 2002).  He is presumed to have been exposed to Agent Orange and is currently service-connected for diabetes mellitus type 2.  As set forth above, there are several potential theories of entitlement for consideration.  

The initial question, however, is whether there is evidence of current disability.  
On VA examination in April 2010, the Veteran had normal reflexes and normal vibratory sensation in both upper extremities.  The examiner included a diagnosis of peripheral neuropathy of the lower extremities only.  

In his July 2010 Notice of Disagreement, the Veteran reported that his upper extremities were not stable and that he had extreme weakness.  

A November 2010 VA nursing note indicates that the Veteran's spouse reported that he falls a lot and was diagnosed with neuropathy.  Complaints related to the upper extremities were not noted.  

The Veteran underwent a VA examination in June 2011 in connection with a claim for residuals of a stroke.  At that time, he reported tingling and numbness in the fingers.  Diagnosis included left side stroke with right upper extremity hemiparesis.  The Board notes that the Veteran is currently service-connected for right upper extremity hemiparesis secondary to stroke.  

A July 2012 Statement of Attending Physician notes that the Veteran had weakness of the right hand with poor grip.  These findings were not attributed to peripheral neuropathy and diagnoses were listed as cerebral vascular accident; cervical and lumbar spondylosis; and diabetes mellitus.  

The Board has reviewed the medical evidence of record, to include outpatient records and examination reports, and does not find a current diagnosis of peripheral neuropathy in either of the upper extremities.  

The Board has considered the Veteran's contentions and his reports of upper extremity weakness, etc.  To the extent the Veteran asserts he has a current diagnosis of upper extremity peripheral neuropathy, and questions of competency notwithstanding, his unsupported lay assertions do not outweigh the objective evidence of record.  

Without a current disability, service connection for peripheral neuropathy of the left and right upper extremities is denied.  See Brammer.  The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.


ORDER

Service connection for claimed peripheral neuropathy of the left upper extremity is denied.

Service connection for claimed peripheral neuropathy of the right upper extremity is denied.  


REMAND

In July 2010, the RO denied entitlement to SMC based on the need for aid and attendance or at the housebound rate.  The Veteran disagreed with this decision.  

In an August 2011 rating decision, the RO stated that the issue of entitlement to SMC based on aid and attendance/housebound were appeal issues and would not be addressed in the rating decision.  Notwithstanding, the RO granted entitlement to SMC at the housebound rate effective on September 10, 2010.  

In September 2011, the RO issued a Statement of the Case addressing service connection for peripheral neuropathy of the upper extremities.  It did not, however, include the issue of entitlement to SMC based on the need for aid and attendance.  

On review, a remand is needed so that the RO can furnish a Statement of the Case on this issue.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, this remaining matter is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

The RO shall issue a Statement of the Case addressing entitlement to SMC based on the need for aid and attendance.  If, and only if, the appellant completes his appeal by filing a timely substantive appeal on the issue should it be returned to the Board.  38 U.S.C.A. § 7104 (West 2002).  

The Veteran has the right to submit additional evidence and argument on the matter or 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 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. 2013).



______________________________________________
STEPHEN L. WILKINS 
Veterans Law Judge, 
Board of Veterans' Appeals

Department of Veterans Affairs