Citation Nr: 1626295	
Decision Date: 06/30/16    Archive Date: 07/11/16

DOCKET NO.  14-15 572A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to service connection for neuropathy of the lower extremities, to include as due to service connected disease or injury.

2.  Entitlement to service connection for neuropathy of the upper extremities, to include as due to service connected disease or injury.

3.  Entitlement to service connection for peripheral arterial occlusive disease of the bilateral lower extremities, to include as secondary to the service connected ischemic heart disease and exposure to Agent Orange.


ATTORNEY FOR THE BOARD

E.I. Velez, Counsel



INTRODUCTION

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).

The Veteran served on active duty from November 1957 to May 1978.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. 

The issue of service connection for peripheral arterial occlusive disease to include as secondary to the service connected ischemic heart disease and exposure to Agent Orange is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1.  A lower extremity neurologic disease was not identified during service or within one year of separation.
 
2.  Pathology to account for his complaint, to include a neurologic disease, has not been identified.
 
3. The lower extremity complaints are unrelated (caused from or aggravated by) to a service-connected disease or injury.




CONCLUSIONS OF LAW

1.  Neuropathy of the upper extremities was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to or a result of a service-connected disease or injury.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2015).

2.  Neuropathy of the lower extremities was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to or a result of a service-connected disease or injury.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. VA's Duty to Notify and Assist

VA has a duty to notify and duty to assist a Veteran in the claims process.  The Veteran was provided with adequate notice in a March 2013 letter, prior to the May 2013 rating decision on appeal. 

The duty to assist includes assisting the Veteran in the procurement of relevant records.  Of record, as relevant, are service treatment records (STRs), VA treatment records and private medical records.  The Board finds that the evidence of record is sufficient to decide the Veteran's claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  In this case, the Veteran was provided with a VA examination, and an opinion was provided, in September 2013.  The Board finds this VA examination report to be thorough, complete and sufficient bases upon which to reach a decision on the Veteran's claim.  See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007).

In conclusion, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim.

II. Legal Criteria and Analysis

Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty."  38 U.S.C.A. §§ 1110, 1131 (West 2014); see also 38 C.F.R. § 3.303 (2015).

In order to establish direct service connection, three elements must be established. These elements are: "(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," which is often referenced as the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In the absence of proof of a present disability, there is no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013).  As noted, organic diseases of the nervous system are chronic diseases. 38 U.S.C.A. § 1101.  The appellant claims to have a upper and lower extremity neurological pathology. 

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

Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(b).  

VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability or death benefits.  38 U.S.C.A. § 1154(a) (West 2002).  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, (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, 1377 (Fed. Cir.2007). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

At the outset, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disabilities are the result of combat with the enemy.  Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable.

The Veteran seeks service connection for neuropathy of the upper and lower extremities, specifically as due to the service connected cervical spine disability.  After a careful review of the evidence of record, the Board finds that the evidence is against the claim.

At the outset, the Board notes that the evidence does not show and the Veteran has not argued that the claimed neuropathy of the upper and lower extremities was incurred in service or within a year form service.  Rather, he has solely argued that it is due to his service connected cervical spine disability.  

A review of the service treatment records shows that the records are completely devoid of any complaints of or treatment for any neuropathy of the upper and/or lower extremities.  

Post service treatment records are equally silent for any complaints of, treatment of, or diagnosis of radiculopathy or neuropathy of the upper and/or lower extremities.  

The Veteran was afforded a VA examination in September 2013.  At the time, the examiner specifically found that there was no radiculopathy or peripheral neuropathy, and found there was no functional impairment of an extremity which was caused by the cervical spine disability.  Moreover, at the time of the examination, the Veteran specifically denied any radiation of pain from the cervical spine to the upper extremities to include the shoulders, arms and forearms.  No diagnosis of any type of peripheral neuropathy or radiculopathy was found at the time.  

Considering the evidence above, the Board finds that there is no current disability relevant to the claim of service connection for neuropathy of the upper and or lower extremities.  38 C.F.R. § 3.303; Shedden, 381 F.3d 1163; Brammer , 3 Vet. App. 223; McClain, 21 Vet. App. 319.  Thus, service connection cannot be granted as there is no current disability and no neuropathy has been identified at any time during the appeal period.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310.  Thus, there can be no valid claim for service connection.  See Brammer, 3 Vet. App. 223. 

The Veteran has submitted a claim for service connection for radiculopathy and as such, by inference, has alleged he suffers from radiculopathy of the bilateral upper and lower extremities.  As noted above, the Veteran is competent to provide evidence of observable manifestation or symptoms and report that which he has been told.  While he may report symptomatology and his belief of a current disability, the more probative competent evidence establishes that the Veteran does not have current neuropathy of the upper and/or lower extremities.  To the extent that he may have symptomatology, which he denied at the VA examination, of the upper and/or lower extremities, there is no evidence of disease or injury.  Accordingly, service connection is not warranted for those claimed disabilities.

Whether the issue is direct service connection, presumptive service connection, an Agent Orange presumptive, or secondary service connection, the result is the same.  In the absence of pathology, there can be no finding of incurrence, aggravation, proximate causation or proximate aggravation.  It also follows that in the absence of disease or injury, a neurologic disease was not manifest within one year of separation or at any time.  Furthermore, despite in-service and post service complaints, a chronic neurologic disease was not "noted," identified or diagnosed during service.  Additionally, characteristic manifestations sufficient to identify the disease entity were not identified during service.  Therefore, the provisions of 38 C.F.R. § 3.303(b) are not applicable.  

The preponderance of the evidence is against these issues and there is no doubt to be resolved.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).  Accordingly, on this record, service connection for radiculopathy of the bilateral upper and lower extremities must be denied. 



ORDER

Service connection for neuropathy of the upper extremities, to include as due to service connected disease or injury, is denied.

Service connection for neuropathy of the lower extremities, to include as due to service connected disease or injury, is denied.


REMAND

The Veteran seeks service connection for peripheral arterial occlusive disease of the lower extremities, to include as due to the service connected ischemic heart disease and exposure to Agent Orange.  

At the outset, the Board notes that exposure to Agent Orange has been conceded by the RO as the record reflects the Veteran had service within the waters of the Republic of Vietnam.  

As noted above, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310 (2015).

The Veteran was afforded a VA examination in April 2013.  At the time, the examiner opined that peripheral arterial occlusive disease of the lower extremities had not been caused and was not due to ischemic heart disease.  However, an opinion as to whether the disability was caused by exposure to Agent Orange or whether it was aggravated by ischemic heart disease was not obtained.  On remand, these opinions should be obtained.  

Accordingly, the case is REMANDED for the following action:

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

1. Return the file to the examiner who conducted the April 2013 VA examiner and ask that the following opinions be provided as to the etiology of the claimed peripheral arterial occlusive disease of the bilateral lower extremities:

a) Is it at least as likely as not that the peripheral arterial occlusive disease of the lower extremities aggravated beyond its natural progression by the service connected ischemic heart disease, or is such etiology unlikely?  

b) Is it at least as likely as not that the peripheral arterial occlusive disease of the lower extremities caused by exposure to Agent Orange, or is such etiology unlikely?  The examiner is advised that an opinion that the claimed disability is not presumed to have been caused by exposure to Agent Orange will be deemed inadequate.   

The claim file should be made available to the examiner for their review and the examination report must state that a review of the file was conducted.  If an in-person examination of the Veteran is needed to provide the requested opinions, one should be scheduled.  If the April 2013 VA examiner is not available, the file should be forwarded to an equally qualified examiner for its review and for the requested opinions.  

A complete rationale for any opinion rendered must be provided.  

2. If a new examination is scheduled, the Veteran must be given adequate.  He is advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim.  38 C.F.R. § 3.655 (2013).

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures.  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).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs