Citation Nr: 1605463 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 09-05 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a claimed disability manifested by loss of feeling in the hands and feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1975 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision. In June 2010, the Veteran testified at a hearing held at the RO before a Veterans Law Judge who is no longer employed by the Board. In September 2010, September 2013, and November 2014 the Board remanded this matter for further development. The requested development has been performed and complies with the directives of the Board remand. In December 2015, the Board sent the Veteran a letter indicating that the Veterans Law Judge who performed the June 2010 hearing was no longer employed by the Board and offered the Veteran a chance to appear at another hearing. In January 2016, the Veteran replied that he did not wish to appear at another hearing and that he wanted his case considered based on the evidence of record. Given the foregoing, the matter is now ready for appellate review. FINDING OF FACT Any current loss of feeling of the hands and feet, to include peripheral neuropathy, is neither of service origin nor is it etiologically related to the Veteran's service-connected asthma or undifferentiated somatoform disorder. CONCLUSION OF LAW The criteria for service connection for loss of feeling of the hands and feet, to include peripheral neuropathy, are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Court has also held that that the VCAA 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. Those five elements include: 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 (2006). The RO, in an April 2008 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The April 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private medical reports, VA examination reports and opinions, and lay evidence. No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in October 2013 and June 2015. The June 2015 report includes an opinion as to the etiology of any current loss of feeling in the hands and feet. The Board finds that the VA examinations of record are adequate for rating purposes because they were performed by medical professionals, were based on thorough examinations of the Veteran, and reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that no further examination is necessary regarding the above issue. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through testimony at a June 2010 hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Peripheral neuropathy is not a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran maintains that his loss of feeling in the hands and feet had its origin in service or in the alternative is caused or aggravated by his service-connected asthma and undifferentiated somatoform disorder. A review of the Veteran's service treatment reveals no complaints or findings of loss of feeling in the hands or feet or notations of neurological difficulties. At the time of the Veteran's August 1976 service separation examination, normal findings were reported for the feet and upper extremities, with the exception of a surgical scar being noted on the left palm. Normal neurological findings were also reported at that time. Moreover, on his August 1976 service separation report of medical history, the Veteran checked the "no" boxes when asked if he had or had ever had foot trouble, lameness, neuritis, or paralysis. The first reports or complaints of loss of feeling in the hands and/or feet was in the Veteran's March 2008 application for compensation, wherein he reported having had loss of feeling in the hands and feet since February 1, 1976. At his June 2010 hearing, the Veteran indicated that he had numbness in his hands when he had trouble breathing as a result of his asthma. He also appeared to possibly relate the numbness and tingling to the mononucleosis he was treated for in service. An April 2012 VA treatment record indicated that the Veteran had diabetes and possible peripheral neuropathy. At the time of an October 2013 VA examination, the examiner indicated that the Veteran denied having a peripheral nerve condition with numbness of the hands and feet and stated that he did not put in for a peripheral nerve condition. In its November 2014 remand, the Board noted the April 2012 finding of diabetes and possible peripheral neuropathy along with the prior remand, wherein it was requested that the examiner offer an opinion as to the etiology of any loss of feeling in the hands and feet. The Board further observed the above notation made by the October 2013 VA examiner as well as his failure to provide an opinion as to the nature and etiology of any current numbness of the hands and feet. As a result, the Board once again remanded the claim to provide the requested opinion, to include what, if any, relationship it had to the Veteran's service-connected asthma disorder. In conjunction with the Board remand, the Veteran was afforded a VA examination in June 2015. The examiner indicated that the Veteran had a diagnosis of hereditary sensory neuropathy, with a diagnosis date of approximately 2012. The examiner indicated that the Veteran reported that he had had tingling in his feet his whole life and some tingling in his hands. The examiner noted that the Veteran reported having had mononucleosis while on active duty and that the Veteran had attributed his medical problems to these residuals. The examiner noted that the Veteran had a long and extensive history of smoking tobacco, which of course aggravated his asthma. He also observed that the Veteran had a history of snorting cocaine and smoking marijuana, which affects a person's neurological system. He further noted that the Veteran had an extensive and prolonged history of alcohol abuse, which could certainly affect the neurological system. The Veteran was also reported to have a history of non-compliance with medical treatment which affected how he would respond to any attempted medical intervention. The examiner stated that the Veteran refused to quit smoking and drinking. The examiner noted that at the time of a February 28, 2008 visit, there were no complaints or diagnoses of numbness. At the time of a February 19, 2009 visit, there were also no complaints or diagnoses of numbness. It was reported at that time that he drank 10 beers per day and 100 shots of whiskey per week. At the time of a November 25, 2011 visit, the Veteran reported that he had a list of things he wanted but he was fighting for a higher disability evaluation. The examiner also observed that in a December 2011 treatment record, the Veteran was noted to have diabetes mellitus, which could certainly affect his circulation and peripheral nerves. The examiner further noted that there were no complaints of tingling or numbness at the time of the Veteran's August 1976 service separation examination and that he had been hospitalized for mononucleosis in February 1976 with no complaints or sequelae. He also indicated that there were no notations of neurological problems on the February 1976 hospital discharge summary. The examiner then cited to the Mayo Clinic with regard to factors which could cause neuropathies. The examiner indicated that the Veteran had multiple risk factors for his developing peripheral neuropathy, to include extensive and prolonged alcohol abuse, extensive and prolonged smoking history, diabetes mellitus, non-compliance with appropriate medical care, and cocaine and marijuana abuse history. He indicated that there was no evidence to support the contention that his hereditary peripheral sensory neuropathy was caused by or developed while on active duty. Nor was there any evidence, given the multiple risk factors and his unwillingness to follow medical recommendations to quit his abusing alcohol and cigarettes, that his peripheral neuropathy had been in any way aggravated by his service-connected undifferentiated somatoform disorder or service-connected asthma. After reviewing all the evidence, lay and medical, the Board finds that the weight of the evidence is against the conclusion that the Veteran's loss of feeling, to include peripheral neuropathy, of the hands and feet had its onset in service. Service treatment records did not reveal any complaints or findings of numbness or tingling of the hands or feet in service. Furthermore, as noted above, the Veteran's post-service treatment records confirm that he was not diagnosed with any neurological problems of the hands or feet until 2011, more than 35 years following his separation from service; therefore, the evidence does not reflect in-service numbness of the hands or feet. As to the Veteran's reports that he has had numbness of the hands and feet since service, to include following his inservice treatment for mononucleosis, the Board finds that the contemporaneous evidence shows that the Veteran reported that he had no neurological problems on his service separation report of medical history. Moreover, treatment records do not contain any findings of neurological problems until 2011. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed loss of feeling in the hands and feet is related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board concludes that the assertions of loss of feeling in the hands and feet since service are not credible. As to the Veteran's beliefs that his current hand and foot neurological problems are related to his period of service or his service-connected asthma or undifferentiated somatoform disorder, the question of causation of such neurological problems extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In this case, the Veteran does not have the requisite training or expertise to diagnose the cause of his current hand and foot neurological disorders, to include any relationship to his service-connected asthma or undifferentiated somatoform disorders. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current neurological problems of the hands and feet to his period of service. He has not provided either medical evidence or a competent and probative opinion to support this proposition. Furthermore, the June 2015 VA examiner specifically indicated that it was less likely than not that the peripheral neuropathy of the hands and feet had its onset in service or was otherwise related to the Veteran's period of active service and provided detailed rationale to support his opinion following a thorough examination of the Veteran and a complete review of the record. As to the question of secondary service connection, as noted above, the Veteran is not competent to render an opinion as to whether his current hand and foot neurological problems are proximately due to or aggravated by his service-connected asthma or undifferentiated somatoform disorder. The Veteran was afforded the opportunity to submit medical evidence and/or an opinion demonstrating a relationship between the claimed loss of feeling problems and his service-connected disabilities and has not done so. The June 2015 VA examiner opined that it was less likely than not that his peripheral neuropathy of the hands and feet was caused or aggravated (permanently worsened) by the service-connected asthma or undifferentiated somatoform disorder. The VA examiner provided rationale to support his opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be probative and finds that the weight of the lay and medical evidence does not demonstrate that his current loss of feeling in the hands and feet, to include peripheral neuropathy, are proximately due to or aggravated by a service-connected disability. In sum, the preponderance of the evidence weighs against a finding that any current loss of feeling in the hands and feet, to include peripheral neuropathy, is related to his period of service or was caused or aggravated by his service-connected asthma or undifferentiated somatoform disorder. ORDER A claimed disability manifested by loss of feeling in the hands and feet, to include peripheral neuropathy, is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs