Citation Nr: 1620361 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 12-20 825A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a neurological condition of the bilateral upper extremities, to include peripheral neuropathy and cold injury residuals. 2. Entitlement to service connection for a neurological condition of the bilateral lower extremities, to include peripheral neuropathy and cold injury residuals. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1969. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision that, in pertinent part, denied service connection for peripheral neuropathy of bilateral upper extremity and bilateral lower extremity. The Veteran timely appealed. In February 2013, the Veteran testified during a video conference hearing before the undersigned. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In August 2014, the Board remanded the matters for additional development. In February 2015, VA's Appeals Management Center (AMC) granted service connection for a bilateral hearing loss disability and for tinnitus. Therefore, those matters are no longer before the Board. In October 2015, the Board again remanded the matters for additional development. In February 2016, the AMC granted service connection for the Veteran's left hip disability and for his lumbar spine disability. Therefore, those matters are no longer before the Board. The Board is satisfied there was substantial compliance with the remainder of its remand orders for the claims decided below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the Veteran has filed a timely VA Form 21-0958, Notice of Disagreement, on the initial ratings for the back and hip disabilities, and the effective date of the grant of service connection for the hip disability. Typically, when there has been an initial RO adjudication of a claim and a Notice of Disagreement has been filed as to its denial, the appellant is entitled to a Statement of the Case (SOC), and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). However, in this case, in response to the Veteran's NOD, the RO issued a March 2016 letter acknowledging the NOD and explaining the different appeal options. Thus, as the RO has acknowledged receipt of the NOD, this situation is distinguishable from Manlincon v. West, supra, where a NOD had not been recognized. As the RO is properly addressing the NOD, no action is warranted by the Board. In a March 29, 2016, VA Form 21-4138, Statement in Support of Claim, the Veteran attempted to raise the issue of reimbursement for a dependent's educational expenses. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary, and available online or at the local Regional Office. The Veteran is advised that if he wishes to open a claim, he do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's service treatment records confirm complaints and treatment for numbness in the bilateral upper extremities, and cold injury to the bilateral upper and lower extremities. 2. The Veteran has consistently and credibly contended that he has experienced numbness and tingling in both hands and legs since he was in active service. CONCLUSIONS OF LAW 1. Peripheral neuropathy of upper extremities is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. Peripheral neuropathy of lower extremities is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a May 2010 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claims, to include the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. Each of the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to each of his claims decided below have been obtained, to the extent possible. The RO or AMC has arranged for VA examinations; examination reports are of record and appear adequate. The opinions expressed by examiners are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Here, during the hearing, the undersigned clarified the issues, explained the concept of service connection, and helped to identify any pertinent evidence that was outstanding that might substantiate the claims. The case was thereafter remanded for additional development, including examinations. The actions of the undersigned supplement VA's duties and comply with 38 C.F.R. § 3.103. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be presumed, for certain chronic diseases, such as peripheral neuropathy (as a disease of the nervous system), which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2014); 38 C.F.R. 3.307, 3.309 (2015). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It is appropriate to consider peripheral neuropathy an organic disease of the nervous system and, therefore, a presumptive disability. Hence, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) apply to peripheral neuropathy. Id. In this case, the Board finds that the evidence is in favor of finding that the Veteran's peripheral neuropathy of bilateral upper and lower extremities was incurred in service. The Veteran's service treatment records show that he was seen in August 1967 for complaints related to his right hand falling asleep. In September 1967, the Veteran complained of numbness and pain in his right arm and hand. A neurological consultation report at the time reflects that the Veteran described the pain as tingling pain radiating down his arm and forearm into the fingers. The pain was precipitated by throwing a ball or any activity and felt like a lost grip in his right hand. The evaluation did not reveal any abnormalities. Likewise, the Veteran's service treatment records show treatment for cold injury of bilateral feet in Germany in November 1967, and show complaints of numbness and tingling in both feet in 1968. The Veteran is competent to report symptoms he has experienced through his senses, such as numbness and tingling. Service personnel records, and particularly the Veteran's DD Form 214, reflect his primary specialty as a hawk missile crewman. Furthermore, his statements are consistent with the circumstances of his service, and thus the Board finds that there is credible evidence of experiencing numbness and tingling of both hands and legs in active service. The Veteran has also consistently stated that he has continued to experience numbness and tingling ever since active service. The Board has no reason to doubt the credibility of the Veteran's statements. The Board acknowledges the October 2014 VA opinion, in which the VA nurse practitioner opined that the Veteran's bilateral upper extremity neuropathy was less likely than not (less than 50 percent probability) incurred in or caused by the in-service back and hip injury, because numbness and tingling to any extremity was not listed on the March 1969 separation examination; and because an electromyograph conducted in October 2014 was negative for any peripheral neuropathy of upper and lower extremities. The Board finds this opinion to be less persuasive than the Veteran's lay statements. In particular, examination in September 2014 revealed findings of mild incomplete paralysis of the radial nerve affecting the right upper extremity and mild incomplete paralysis of the sciatic nerve affecting the left lower extremity. The Veteran has consistently claimed that he has had numbness and tingling in both his hands and legs, which started in active service. Here, the October 2014 VA nurse practitioner relied on the lack of notation at the time of the Veteran's separation examination in active service to find against the relationship. This is an inadequate reason for a negative finding. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). More recently, in December 2015, a VA nurse practitioner opined that the Veteran had not been diagnosed with any cold injury. That notwithstanding, examination in December 2015 revealed current signs and symptoms of mild numbness in the right hand, mild numbness in the left hand, moderate numbness in the right foot, and moderate numbness in the left foot. VA recognizes numerous conditions as the chronic effects of cold exposure as set out in Veterans Benefits Administration Manual M21-1MR, part III, Subpart iv, Chapter 4, Section E, paragraph 21. Specifically, service connection is warranted for residuals of cold injury if the cold injury was incurred during active service, and an intercurrent non-service-connected cause cannot be determined. The fact that a non-service-connected systemic disease that could produce similar findings is present does not necessarily preclude service connection, and any reasonable doubt is always resolved in the Veteran's favor. Id. See also 38 C.F.R. § 3.102 (2015). Moreover, when a Veteran experiences symptoms of a chronic disease in service, any subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Accordingly, the Board finds that the Veteran has adequately established a continuity of symptomatology since active service for the chronic disease of peripheral neuropathy. The Board is left with the Veteran's contentions, which have been consistent throughout the appeal. Particularly, the Veteran contends that the numbness and tingling of his hands and legs started in active service. Moreover, his service treatment records reveal such complaints. Resolving reasonable doubt in the Veteran's favor, service connection is warranted for residuals of cold injury. (CONTINUED ON NEXT PAGE) ORDER Service connection for peripheral neuropathy and for cold injury residuals of bilateral upper extremities is granted. Service connection for peripheral neuropathy and for cold injury residuals of bilateral lower extremities is granted. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs