Citation Nr: 1802823 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-14 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities (peripheral neuropathy). 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II (diabetes). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Rescan, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1964 to January 1968. His service included a tour of duty in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to an increased rating for diabetes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a diagnosis of peripheral neuropathy. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy, bilateral lower extremities, have not been met. 38 U.S.C. §§ 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). In this appeal, the Board finds the letter dated in June 2011 before the December 2011 rating decision provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letter, the rating decision, and the statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence to include his service treatment records (STR) and VA treatment records. VA also provided the Veteran with a VA examination to determine the nature and etiology of the Veteran's disabilities in August 2011. Moreover, the Board finds that the opinion provided by the VA examiner is adequate to adjudicate the claim because it was provided after a review of the record on appeal, referred to a detailed medical history from the Veteran, and, after the Veteran was examined, the examiner provided an opinion as to the diagnosis and origin of his claimed disability, which was based on citations to the relevant evidence found in the claims file. Therefore, the record is now sufficient to decide the claim. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007). Lastly, neither the Veteran nor his representative has argued that any prejudice results from the assistance provided for this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the VBMS and virtual VA claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 claim and what the evidence in the Veteran's claim's folders show, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. The Claim The Veteran contends that his peripheral neuropathy is due to his service-connected diabetes. In order to establish service connection for the claimed disability, there must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to the claim for service connection for peripheral neuropathy, the threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought; specifically a peripheral neuropathy. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As to a current diagnosis, the Veteran does not have a diagnosis of peripheral neuropathy. Initially, the Board has examined the Veteran's service treatment records and the Board finds that the Veteran's service treatment records are silent for a diagnosis of peripheral neuropathy. See January 1968 Separation Examination. As to the Veteran's lay statements, the Veteran has reported to his doctor that "he has a little diabetes in his toes." See August 9, 2015 VA Progress Note. The Board finds that the Veteran is considered competent to report on observable problems, such as numbness or pain, because these symptoms are observable by a lay person. See Kahana, supra. However, the Board also finds that the Veteran is not competent to provide a medical opinion as to the origins or diagnosis of his present disability because such an opinion requires medical expertise which he does not have. As such, the Board places little probative weight on the Veteran's statements because they are not supported by the medical evidence contained in the record and he does not have the medical expertise to provide a diagnosis for his claimed disability. See Davidson, supra; Kahana, supra. Turning to the medical evidence at hand, the Veteran was afforded a VA examination in August 2011. At that examination, the Veteran reported that he has been "experiencing numbness in his left calf area when he is active such as walking or playing golf for a prolonged period of time." Following the examination, the examiner reported that the Veteran did not have a peripheral nerve condition or diabetic peripheral neuropathy. Then the doctor opined that there "was no objective/subjective evidence of peripheral neuropathy of the lower extremities." See August 2011 VA examination. The Board finds this VA examination to be a highly probative piece of evidence in regards to the nature and etiology of the Veteran's claimed disability. The Board has reached this conclusion because the examiner reviewed the Veteran's medical history, interviewed the Veteran, and examined him before he rendered an opinion. Accordingly, the Board has placed significant weight on this evaluation. Davidson, supra. In addition, the Board has reviewed the Veteran's VA medical history and the Board finds that the Veteran's medical records are silent for a diagnosis for peripheral neuropathy. Thus, the opinion provided by the August 2011 examiner is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In sum, the Board finds that the most probative evidence of record shows that the Veteran does not have a diagnosis for peripheral neuropathy at any time during the pendency of the appeal. In reaching this conclusion, the Board has considered the Veteran's lay statements and the available medical information contained in the Veteran's claims file and finds that the VA examiner's opinion is the most probative piece of evidence. Accordingly, as a diagnosis is a condition precedent for establishing service connection, and this Veteran does not have such a diagnosis, the Board must conclude that entitlement to service connection for a peripheral neuropathy must be denied because the weight of the evidence is against the claim. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(d), 3.309. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for peripheral neuropathy, bilateral lower extremities, must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, is denied. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As to the claim for an increased rating for the Veteran's diabetes, a review of the record indicates that the Veteran last received an examination for his diabetes in August 2011. The Board finds that this examination is too old to properly evaluate the Veteran's current disability. Accordingly, VA's duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Thus, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. While the appeal is remand status, the AOJ should also obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from September 20, 2016 to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of his diabetes. The claims file should be made available to and reviewed by the examiner. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and their representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs