Citation Nr: 18156306 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-58 051 DATE: December 7, 2018 ORDER Service connection for right leg peripheral neuropathy is denied. Service connection for left leg peripheral neuropathy is denied. FINDINGS OF FACT 1. It has not been shown that the Veteran’s right leg peripheral neuropathy is related to the Veteran’s active service, to include as secondary to his service-connected diabetes mellitus. 2. It has not been shown that the Veteran’s left leg peripheral neuropathy is related to the Veteran’s active service, to include as secondary to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for right leg peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for left leg peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1966 to September 1969. Service Connection Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented as to that claim. 38 U.S.C. § 5108 (2012). The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim “must be read as creating a low threshold.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Id. at 118. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran previously submitted a claim of entitlement to service connection for right and left leg peripheral neuropathy which was denied in a May 2009 Board decision on the basis that the Veteran did not have peripheral neuropathy that was related to his active military service. The May 2009 Board decision became final because the Veteran did not submit appeal the decision within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, he stated that his neuropathy was secondary to his service connected diabetes mellitus, which is a contention that was not previously considered. See August 2012 Claim for Service Connection. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that, during the course of the Veteran’s appeal, service connection for diabetes mellitus was severed. The issue of the propriety of this severance is not before the Board. Although the Veteran expressed his disagreement, the RO rejected his Notice of Disagreement (NOD) on the basis that it was prematurely filed, see Shipley v. Shinseki, 24 Vet. App. 458 (2011), and to date, he has not properly filed a timely NOD. Because, however, service connection was in effect for diabetes mellitus for at least part of the appeal period, the outcome of the severance claim will not affect the merits of the adjudication of the secondary service connection claim for the period from the date of claim to the date of severance of service connection for diabetes mellitus. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2017). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a 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). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has asserted entitlement to service connection for left and right leg peripheral neuropathy, to include as being secondary to his service-connected diabetes mellitus. A review of the file shows that a VA examiner in June 2013 determined that his right and left leg peripheral neuropathy was not secondary to the Veteran’s diabetes mellitus, but instead was caused by a vitamin B12 deficiency and an immune-mediated process. The diabetes mellitus VA examination that the Veteran underwent as a part of his claim for peripheral neuropathy did not reveal any recognized complications of diabetes mellitus or any conditions that have been aggravated by the Veteran’s diabetes. As such, entitlement to service connection for right and left leg peripheral neuropathy on secondary basis is not warranted. The Board will now determine whether service connection is warranted on a direct basis. The Veteran had another Diabetic Sensory Motor examination in April 2016, to determine the etiology of his right and left leg neuropathy. At this examination, the examiner determined that the Veteran’s diabetes did not aggravate his diagnosed peripheral neuropathy beyond its natural progression, which was first diagnosed in 2007 and his diabetes mellitus was first diagnosed in 2013. The examiner further commented that it was impossible to know the degree of involvement at the time of his diagnosis of diabetes. The examiner noted that the Veteran’s neuropathy is caused by a multitude of factors, and it is impossible to say with any certainty how much of his symptoms are due to diabetes. As such, service connection based upon aggravation is not warranted. The Board will now review the evidence of records to see if entitlement to service connection on a direct basis is warranted. A review of the Veteran’s service treatment records does not refer to any complaints or finding regarding the Veteran’s lower extremities. The Veteran’s skin and neurological evaluations completed at service discharge were normal in August 1969. A review of private treatment records dated May and August 2007 indicate that after a review of laboratory studies and a diagnostic work up in regards to the Veteran’s complaints of numbness, tingling, and painful dysesthesias in his legs, Dr. P.M.N, concluded that the Veteran neuropathy was due to a Vitamin B12 deficiency and an immune-mediated process. The Veteran has himself asserted that he has current neuropathy of the right and left leg are the result of his active military service. A layperson is competent to report observable symptomatology which comes to him via his senses. See Jandreau, 492 F.3d at 1372; see also Buchanan, 451 F.3d at 1331. Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. See Clemons, 23 Vet. App. at 6. Lay testimony on the etiology of current diagnoses of neuropathy of the right and left leg are not competent in the present case, because the Veteran is not competent to state that his current disorders resulted from in-service diseases or injuries. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433. An opinion of etiology would require knowledge of the complexities of orthopedic and vascular disabilities and the various causes of such disorders, knowledge that the Veteran is not shown to possess. The Veteran has also not alleged that he was told of such a nexus by a competent expert, and such assertions have not subsequently been verified by such an expert. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for neuropathy of the right and left leg either directly related to service or as secondary to a service-connected disability, or as aggravated by a service-connected disability, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson