Citation Nr: 1805847 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-24 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Subsequently in August 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ) regarding this claim. A transcript of that hearing is of record. Briefly, the Board notes that the Veteran submitted a VA Form 9 in September 2017 for several issues that were not on appeal. Thus, the Veteran is advised that these issues are not before VA for consideration at this time. FINDINGS OF FACT 1. The Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities. 2. The Veteran received in-service treatment for pain and swelling of the bilateral heels. 3. The most competent and probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's peripheral neuropathy of the bilateral lower extremities was incurred in or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran's representative has argued that VA has a duty to provide the Veteran with a VA examination in regard to this claim. See statement dated June 2014; see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Typically, a VA medical examination is required for a service connection claim only when there is: (1) Competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect to the third factor, the United States Court of Appeals for Veterans Claims (Court) has held that this element establishes a low threshold and requires only that the evidence indicates that there may be a nexus between the current disability or symptoms and a veteran's service. Such relevant evidence includes, but is not limited to, medical evidence suggesting a nexus but which is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 79. In light of the above, the Board does not find that a VA examination is warranted at this time. In this case, the claims file contains competent evidence of an in-service injury and a current disability, as set forth in greater detail below. However, the record does not contain any evidence of a link between the two, other than the Veteran's own assertion that such a nexus exists. However, a veteran is not entitled to a VA examination based solely upon his own conclusory statements indicating a relationship between an in-service illness or injury and a present disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Instead, the record must contain some other factual basis supporting the veteran's statements. Id. at 1278; see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). As such a factual basis is absent from the record, a VA examination is not warranted at this time. Thus, the Board will now review the merits of the Veteran's claim. Legal Criteria and Analysis The Veteran is currently seeking entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection, there must be competent evidence of: (1) The current existence of the disability for which service connection is being claimed; (2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). In applying these standards to the Veteran's claim, the Board first finds competent evidence of the claimed disability. VA treatment records spanning February 1996 to October 2016 contain multiple references to a diagnosis of neuropathy, dating to November 2000 and requiring ongoing management with medication. See also, e.g., VA treatment records dated June 2002 (noting the Veteran's history of diabetes mellitus with neuropathy as controlled with insulin and medication) and September 2016 (including assessment of foot neuropathy). Accordingly, the Board finds that the first Shedden element has been met. Further, the Board finds competent and credible evidence of relevant in-service treatment. Specifically, service treatment records (STRs) from the summer of 1974 indicate that the Veteran was placed on bedrest following symptoms of pain and swelling in the bilateral heels. The Board finds that this treatment note, as provided by a medical professional, stands as competent evidence of an in-service injury sufficient to satisfy the second Shedden element. However, the claims file is entirely devoid of medical evidence linking the Veteran's current disability to his military service. Instead, VA treatment records consistently attribute the Veteran's peripheral neuropathy to his diabetes mellitus, a condition for which the Veteran has been denied service connection on multiple occasions. See rating decisions dated November 1997 and April 2006; Board decision dated April 2011; see also, e.g., VA treatment records dated September 2016 (reporting symptoms from diabetic autonomic neuropathy); March 2016 (reporting painful diabetic neuropathy); January 2016 (noting treatment for diabetic foot care). Moreover, at the August 2017 hearing, the Veteran and his representative contended that the Veteran's disability was due to diabetes mellitus. Thus in the total absence of a positive opinion, the Board is precluded from finding that a nexus exists in this case. The Veteran and his representative have been accorded ample opportunity to present competent medical evidence in support of his claim; they have failed to do so. See 38 U.S.C. § 5107 (a) (it is the claimant's responsibility to support a claim for VA benefits). In reaching this conclusion, the Board is cognizant of the Veteran's implicit contention that his peripheral neuropathy is etiologically related to service. However, the Veteran lacks the appropriate medical training and expertise to assess the etiology of a medical condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Thus, the Board defers to the medical evidence of record in assessing the etiology of the Veteran's disability. In doing so, the Board does not find competent evidence of a causal nexus in this case. Accordingly, the Veteran's claim for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is hereby denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs