Citation Nr: 18154404 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-27 298A DATE: November 29, 2018 ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to chronic obstructive pulmonary disease (COPD)/emphysema is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to COPD/emphysema is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity to include as secondary to COPD/emphysema is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to COPD/emphysema is denied. Entitlement to an effective date earlier than February 16, 2011 for the award of service connection for major depressive disorder (MDD) is denied. REMANDED Entitlement to an initial disability rating in excess of 50 percent for MDD is remanded. Entitlement to an initial disability rating in excess of 60 percent for COPD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the left upper extremity is secondary to chemotherapy treatment for testicular cancer and did not manifest during, or as a result of, active military service, and has not been caused or aggravated by the service-connected COPD. 2. The Veteran’s peripheral neuropathy of the right upper extremity is secondary to chemotherapy treatment for testicular cancer and did not manifest during, or as a result of, active military service, and has not been caused or aggravated by the service-connected COPD. 3. The Veteran’s peripheral neuropathy of the left lower extremity is secondary to chemotherapy treatment for testicular cancer and did not manifest during, or as a result of, active military service, and has not been caused or aggravated by the service-connected COPD. 4. The Veteran’s peripheral neuropathy of the right lower extremity is secondary to chemotherapy treatment for testicular cancer and did not manifest during, or as a result of, active military service, and has not been caused or aggravated by the service-connected COPD. 5. On February 16, 2011, and no earlier, a claim was received for service connection for MDD. CONCLUSIONS OF LAW 1. The criteria for service connection for a peripheral neuropathy of the left upper extremity, to include as secondary to COPD/emphysema, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for a peripheral neuropathy of the right upper extremity, to include as secondary to COPD/emphysema, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a peripheral neuropathy of the left lower extremity, to include as secondary to COPD/emphysema, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for a peripheral neuropathy of the right lower extremity, to include as secondary to COPD/emphysema, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for an effective date prior to February 16, 2011 for service connection for MDD have not been met. 38 U.S.C. §§ 5101 (a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1964 to July 1968. The Board notes that the claim of entitlement to TDIU has been raised by the evidence of record, notably medical evidence and arguments submitted by the Veteran’s attorney that his service-connected COPD and MDD have rendered him unemployable. (See August 2017 written argument and associated private medical opinions, submitted by the Veteran’s attorney to VA). Thus, by virtue of Rice v. Shinseki, the TDIU claim is part and parcel of the Veteran’s pending initial rating claims for his service-connected COPD and MDD. Rice v. Shinseki, 22 Vet. App. 447 (2009), i) Service Connection Claims-Peripheral Neuropathy Bilateral Upper and Lower Extremities The Veteran seeks service connection for peripheral neuropathy of the bilateral upper and lower extremities. He maintains that he has peripheral neuropathy of the upper and lower extremities that are secondary to his COPD/emphysema. (See VA Form 21-526(b), Veteran’s Supplemental Claim, received by VA in August 2012). After a brief discussion of the laws and regulations governing service connection, to include those claimed on a secondary theory of entitlement, the Board will analyze the merits of the claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As peripheral neuropathy is not a chronic disease, the theory of continuity of symptomatology is not applicable to the claims decided herein. Id. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). As an initial matter, the Board notes that the Veteran was not afforded a VA examination with respect to his claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities; however, the Board finds that a VA examination is not necessary. In this regard, the Veteran has claimed that these disabilities are secondary to his service-connected COPD. However, and as discussed further herein, the Board finds that the evidence of record does not competently and credibly establish that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities were caused or aggravated by his COPD, but are secondary to chemotherapy treatment for his testicular cancer. Furthermore, the Veteran has not alleged that such disorders are otherwise the result of his military service or that he has had a continuity of symptomatology since service. The United States Court of Appeals for Veterans Claims (Court) has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination is not necessary to decide the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities, claimed as secondary to COPD/emphysema decided herein. The Board finds that the preponderance of the evidence of record is against the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include on a secondary basis. The Board notes that the Veteran does not allege, nor does the record reflect, that his peripheral neuropathy of the bilateral upper and lower extremities are related to service on a direct or presumptive basis. In this regard, the Board notes that service treatment records are negative for any findings, complaints, or treatment referable to such disorders. In fact, the earliest lay or medical evidence of any of these claimed disorders derives from VA medical records, dated in February 2011. In this regard, a February 2011 VA treatment report contains an assessment of generalized peripheral neuropathy/left sided paresthesias and mild weakness that was felt to have been either radiculopathy versus chemotherapy neuropathy. (See VA treatment reports, dated from January to February 2011, labeled as “Medical Treatment-Government Facility,” and received into the Veteran’s Veterans Benefits Management System (VBMS) electronic record on February 9, 2011)). Moreover, the Veteran has not alleged a continuity of symptomatology referable to either disorder since service. Furthermore, there is no competent evidence linking the Veteran’s disorders directly or presumptively to service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). In addition, as the Veteran has not maintained that that his peripheral neuropathy is the result of exposure to herbicide agents due to service in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ), the laws and regulations pertaining to these claims are not for application in the instant appeal. See 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6) (2018). The Veteran has claimed that his peripheral neuropathy is secondary to his service-connected COPD/emphysema. There is no evidence, aside from the Veteran’s own assertions, to support this theory of causation. In fact, the medical evidence of record shows that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities is secondary to chemotherapy treatment for his non-service-connected testicular cancer. (See November 2013 and October 2016 VA treatment reports, labeled as “CAPRI” and received into the Veteran’s VBMS electronic record in May 2015 and April 2017, respectively). This evidence is against the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities, and is uncontroverted. The Board finds no evidence linking the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities to his period of military service, or to the service-connected COPD/emphysema, thus, the claims must therefore be denied. The Board notes that while the Veteran might sincerely believe that he has peripheral neuropathy of the bilateral upper and lower extremities that are related to his service-connected COPD/emphysema, as a lay person he is not competent to link these conditions to a service-connected disability as that is outside the common knowledge of a lay person and would require medical expertise. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is simply no competent evidence of record relating the Veteran’s bilateral upper and lower extremities to service or a service-connected disability and the claims are denied. ii) Earlier Effective Date Claim-Award of Service Connection for MDD The Veteran seeks an effective date earlier than February 26, 2011 for the award of service connection for MDD. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160 (d). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). The Board finds that the Veteran is not entitled to an effective date earlier than February 16, 2011 for the grant of service connection for MDD. The evidence shows that the Veteran first raised entitlement to service connection for depression as secondary to his service-connected lung disability in a statement, received by VA on February 16, 2011. (See VA Form 21-4138, Statement in Support of Claim, received by VA on February 16, 2011). The evidence of record does not contain any communication from the Veteran prior to February 16, 2011 that may be construed as an intent to seek or apply for service connection for MDD, nor has the Veteran argued that he filed a claim for service connection prior to that time. Prior to February 2011, there was no medical opinion of record indicating that there was a nexus between a current diagnosis of MDD and the Veteran’s period of military service, or his service-connected COPD/emphysema. See 38 C.F.R. §§ 3.303; 3.310; EF v. Derwinski, 1 Vet. App. 324, 326 (1991). VA is not required to anticipate, or assume an intent to file, any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998). Given the foregoing, the earliest possible effective date for the grant of service connection for MDD under 38 C.F.R. § 3.400 is February 16, 2011, and the claim must be denied. REASONS FOR REMAND The Board finds that prior to further appellate review of the remaining claims, additional substantive development is required. Notably, in part, to schedule the Veteran for VA examinations to determine the current severity of his COPD and MDD. A remand is also required to have the RO adjudicate the claim of entitlement to a TDIU rating, to include on an extraschedular basis. First, a remand is warranted to schedule the Veteran for VA examinations to determine the current severity of the Veteran’s service-connected COPD/emphysema and MDD. Here, VA examined the Veteran to determine the current (then) severity of his COPD/emphysema and MDD in October 2014. (See October 2014 Respiratory and Mental Disorders Disability Benefits Questionnaires (DBQs)). As the Veteran’s attorney has maintained that these disabilities have increased in severity in that they have caused his unemployability (see Veteran’s attorney’s August 2017 written argument to VA), the Board finds that more recent VA examinations for the service-connected COPD/emphysema and MDD are warranted. Of note, the Veteran’s representative recently submitted a Psychiatric DBQ in 2017, but the DBQ appears to have been completed in 2013 and therefore does not address the need for a contemporaneous VA examination. Second, a remand is warranted to have the RO adjudicate the claim of entitlement to TDIU, to include on an extraschedular basis. Here, the Veteran maintains that he is unable to secure and maintain sedentary and physical employment as a result of his service-connected COPD and MDD. The Board notes that the Veteran failed to meet the schedular criteria for TDIU consideration for the period prior to February 16, 2011 (i.e., June 4, 2009 to February 16, 2011), as his combined rating was 60 percent. However, the adjudication of the initial rating claims for COPD and MDD herein may impact the combined rating. Furthermore, it is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. The Board is unable to grant extraschedular benefits in the first instance. In cases where the scheduler criteria are not met, the matter must first be referred to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. Provide the Veteran with examinations to determine the severity of the service-connected COPD/emphysema and MDD. 2. Adjudicate the claim of entitlement to TDIU, to include on an extraschedular basis. For any portion of the appeal period in which the scheduler criteria remain not met, refer the matter to the Director, Compensation Service, for extraschedular consideration for consideration under § 4.16(b). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel