Citation Nr: 1612852	
Decision Date: 03/30/16    Archive Date: 04/07/16

DOCKET NO.  09-32 019	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


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 a foot rash, to include tinea pedis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Muetzel, Associate Counsel 




INTRODUCTION

The Veteran served on active duty in the United States Army from June 1970 to March 1972, and had additional service in the Reserves. 

This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in part, denied the Veteran's claims of entitlement to service connection for a right wrist disability, peripheral neuropathy, and a foot rash.

The Board remanded the Veteran's claims in December 2013 for additional development.  The Board notes that, by a rating decision dated in March 2014, the RO granted entitlement to service connection for peripheral neuropathy of the bilateral lower extremities and for right wrist dislocation and arthritis.  Since the information of record indicates that the Veteran has not yet filed a NOD contesting either the effective dates or the levels of compensation assigned following the grant of service connection, these issues are no longer a part of the current appeal.  See Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997).

This appeal was processed using VBMS (the Veterans Benefits Management System).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

The issue of entitlement to service connection for a foot rash, to include tinea pedis, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

There is no competent and credible evidence establishing that the Veteran currently has peripheral neuropathy of the bilateral upper extremities.  


CONCLUSION OF LAW

The criteria for establishing service connection for peripheral neuropathy of the bilateral upper extremities have not been met.  38 U.S.C.A § 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2015).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121. 

The Veteran was provided notice in a letter dated September 2003, after his original claim of entitlement to service connection for many conditions, which addressed what information and evidence is needed to substantiate his claims for service connection.  This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA.  The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  The letter was sent to the Veteran prior to the initial adjudication of each of the issues on appeal, and thus, they met the VCAA's timing of notice requirement.  Notably, the Veteran was provided notice again in January 2014, after the Board remanded the claims for additional development.  The notice indicated that the AMC needed additional information to confirm the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) and the Veteran was advised to provide information he had.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA and private treatment records, reports of VA examination, and statements from the Veteran and his representative.  

The Board recognizes that additional leave and earnings statements (LES) were associated with the record after the issuance of the most recent Supplemental Statement of the Case (SOC).  However, as the medical evidence of record does not establish that the Veteran has a current diagnosis of peripheral neuropathy affecting the bilateral upper extremities, the Board finds that a remand for AOJ consideration of the newly-added LES would be unnecessary.  See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran").

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2015).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303 (b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of 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 prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (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)).

The Veteran is seeking service connection for peripheral neuropathy of the bilateral upper extremities on the basis that he developed the condition during service.  The Veteran's service treatment records reflect that he complained of having problems in his fingers and hand in July 1980.  The Army National Guard records show that the Veteran had decreased capillary refill and poor circulation shown as undiagnosed paresthesias of the fingers and wrists on examination in September 21, 1991.  

The Veteran was provided a VA examination in January 2014, at which time the examiner diagnosed the Veteran with peripheral neuropathy of the bilateral lower extremities and provided an opinion that it is at least as likely as not that the Veteran's bilateral lower extremity peripheral neuropathy is related to his service, to include on a secondary basis, to include as secondary to diabetes mellitus.  However, the examination findings are completely absent for any indication that the Veteran has peripheral neuropathy of the bilateral upper extremities.  On examination, there were no findings of constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness in the upper extremities.  The Veteran had normal strength in his elbow flexion, elbow extension, wrist extension, grip, and pinch.  His deep tendon reflexes were normal in the biceps, triceps, and brachioradialis.  The light touch and monofilament tests indicated that the Veteran's shoulder area, inner/outer forearm, and hand/fingers had normal results.  The position testing, vibration testing, and cold sensation was normal in the bilateral upper extremities.  The examiner indicated that the Veteran did not have upper extremity peripheral neuropathy.  

There is no evidence in the Veteran's post service VA or private treatment records that indicate he currently has a diagnosis of peripheral neuropathy of the bilateral upper extremities.  Additionally, while the Veteran is competent to describe his symptoms, it is now well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the diagnosis of peripheral neuropathy of the bilateral upper extremities.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, medical testing and expertise is required to determine the diagnosis symptoms arising from peripheral neuropathy of the bilateral upper extremities as well as to determine the etiology of any condition.  The Veteran has not been shown to have medical expertise to render a competent medical opinion as to the diagnosis or etiology of his claimed peripheral neuropathy of the bilateral upper extremities.  In any event, the Board concludes that the medical evidence, which reveals no findings of peripheral neuropathy of the bilateral upper extremities, is of greater probative value than the Veteran's lay contentions.
	
Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See U.S.C.A §1110.   In the absence of proof of present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In this case, while there is current medical evidence of record dating from 2009 to present, none of this evidence, to include the January 2014 VA examination report, reflects findings of a current diagnosis of peripheral neuropathy of the bilateral upper extremities.   

Accordingly, in the absence of competent evidence of peripheral neuropathy of the bilateral upper extremities during the period of the claim, service connection is not warranted on any basis and the claim must be denied. 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  


ORDER

Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied.  


REMAND

Although the Board regrets the additional delay, further development is needed prior to disposition of the claim of entitlement to service connection for a foot rash, to include tinea pedis.

The Board recognizes that, since the most recent Supplemental SOC, additional LES were associated with the record.  These records confirm that the Veteran was not serving on a period of Active Duty for Training (ACDUTRA) on August 16, 1988, the date on which the Veteran's tinea pedis was noted.  

During the January 2014 VA examination, the examiner diagnosed the Veteran with tinea pedis.  He noted that the Veteran's onset of tinea pedis occurred in 1971, though it is not clear how the examiner arrived at this conclusion.  After a review of the evidence and an examination of the Veteran, the examiner opined that the Veteran's tinea infection started in service.  He stated that the tinea pedis was inadequately treated based on the choice of prescription used.  He went on to explain that tinea infections are chronic and "well known to be very hard to cure."  The examiner indicated that the Veteran had not received appropriate treatment, so it is "expected" that the tinea pedis continues to the current day.  

Unfortunately, the Board finds that a remand is required in order to obtain an addendum opinion regarding the Veteran's claim of entitlement to service connection for tinea pedis.  The Board recognizes that the January 2014 VA examiner found that the Veteran's condition had its onset during service, but as discussed above, the medical evidence of record does not confirm that the tinea pedis began in service.  Further, except for the August 1988 examination report that makes note of the Veteran's tinea pedis, there is no additional evidence, medical or lay, that the Veteran complained of or was treated for tinea pedis during his periods of ACDUTRA.  However, given the January 2014 examiner's opinion, the current record before the Board is inadequate to determine whether pre-existing tinea pedis (as diagnosed in August 1988) was aggravated by the appellant's ACDUTRA.  Aggravation is shown by demonstrating that a disability increased in severity during service, and determined by reviewing the state of the disability before, during, and after active duty service.

The RO/AMC should also obtain and review any outstanding VA treatment records.  38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his tinea pedis.  After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file.  If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified in accordance with 38 C.F.R. § 3.159(e).

2.  After all records and/or response(s) from each contacted entity have been associated with the claims file, obtain an addendum opinion to the January 2014 VA audiological examination and opinion.  The file must be made available to the examiner, and the examiner must specify in the report that the file was reviewed.  

In light of the fact that the Veteran was diagnosed with tinea pedis while the Veteran was not serving on ACDUTRA, the examiner is asked to provide an opinion on the following: 

Based on the evidence of record, is it at least as likely as not (50 percent or greater probability) that the appellant's tinea pedis, which was noted on examination in August 1988, was aggravated during any period of ACDUTRA?  The opinion should specifically address whether such disability increased in severity during the appellant's period of ACDUTRA; and if so, identify the evidence that supports the conclusion.  If the examiner finds that the Veteran's diagnosis of tinea pedis occurred at any time other than during the August 1988 examination, the examiner is asked to clarify when the original diagnosis was made and what evidence he/she used to support the conclusion.

All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.).  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.

3.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims of service connection.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case.  An appropriate period of time should be allowed for response by the Veteran and his representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The appellant 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 2014).



______________________________________________
WAYNE M. BRAEUER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs