Citation Nr: 1807662 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a neurological disability involving the lower extremities, claimed as peripheral neuropathy, to include as secondary to type II diabetes mellitus. REPRESENTATION Appellant represented by: James Brakewood, Jr., Agent ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1967 to December 1970. This matter comes before the before the Board of Veteran's Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied entitlement to service connection for a neurological disability involving the extremities, claimed as peripheral neuropathy, to include as secondary to type II diabetes mellitus. In February 2016, the Board remanded this matter to obtain any other relevant treatment records as well as afford the Veteran another VA examination. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141 146 47 (1999); Stegall v. West 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, a June 2016 rating decision granted entitlement to service connection for a neurological disability involving the upper extremities, claimed as peripheral neuropathy, to include as secondary to type II diabetes mellitus. Specifically, the Board assigned a 10 percent rating for service connection for carpal tunnel syndrome, left upper extremity (claimed as diabetic peripheral neuropathy) effective May 23, 2016 and assigned a 10 percent rating for service connection for carpal tunnel syndrome, right upper extremity (claimed as diabetic peripheral neuropathy) effective May 23, 2016. The record currently before the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective dates assigned. The Board therefore finds that these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, the only issue that remains before the Board is entitlement to service connection for a neurological disability involving the lower extremities, claimed as peripheral neuropathy, to include as secondary to type II diabetes mellitus. This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. The Veteran has a neurological disability in his lower extremities. 2. The Veteran's neurological disability in his lower extremities did not manifest during active service or within one year of separation therefrom, and is not otherwise related to service, to include as proximately due to or chronically aggravated by the Veteran's service-connected type II diabetes mellitus. 3. The Veteran is not service-connected for a back disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological disability involving the lower extremities, claimed as peripheral neuropathy, to include as secondary to type II diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See 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 duty to assist argument). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may be granted for any disease initially diagnosed after service 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). 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 other 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. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. A neurological disability is considered to be a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an alternative to direct service connection and aggravation, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Analysis The Veteran contends that he has numbness and tingling in the tips of his toes that he believes is related to his service-connected type II diabetes mellitus. The evidence of record includes service treatment records, statements from the Veteran's representative, VA treatment records, a 2013 VA examination, and a June 2016 Disability Benefits Questionnaire (DBQ). Applying the evidence of record to the elements of direct service connection, the Veteran reported lower extremity numbness and tingling that started around five to six years ago. He stated that he had numbness and tingling in the tips of his toes and it felt like he had to rub or massage them to attempt to restore sensation. A May 2016 electromyography (EMG) indicated a neurological disability in his lower extremities. Since the May 2016 EMG revealed a nerve disability in the lower extremities and thus a current diagnosis, the first element of direct service connection is met. Second, the Veteran has an in-service event as the Veteran contends that his neurological disability in his lower extremities is due to his type II diabetes mellitus that he incurred in service. Consequently, the only remaining question is whether the Veteran's current neurological disability in his lower extremities is related to the in-service event. In the Veteran's most recent VA examination in June 2016, the Veteran reported lower extremity numbness and tingling that started around five to six years ago. He stated that he had numbness and tingling in the tips of his toes, and it felt like he had to rub or massage them to attempt to restore sensation. However, following a May 2016 electromyography (EMG), the examiner stated there were no objective findings of polyneuropathies of the lower extremities on the EMG to indicate diabetic peripheral neuropathy. The examiner stated that the findings were more indicative of lumbar stenosis. The examiner concluded that it was less likely as not that the lower extremity neuropathies were caused by or aggravated by service or his service-connected diabetes, because the May 2016 nerve study found that the Veteran's complaints of numbness and tingling in his lower extremities were more indicative of lumbar manifestations. As the June 2016 VA examiner's medical opinion is negative with respect to the third element of service connection, a nexus, the Veteran's claim for service connection for a neurological disability involving the lower extremities, claimed as peripheral neuropathy, cannot be granted on a direct basis. With regard to secondary service connection, the Veteran contends that his neurological disability was caused by his service-connected type II diabetes mellitus. However, as mentioned above, in the June 2016 VA examination, the examiner concluded that it was less likely as not that the lower extremity neuropathies were caused by or aggravated by his service-connected diabetes, because the May 2016 nerve condition study found that the Veteran's complaints of numbness and tingling in his lower extremities were more indicative of lumbar manifestations and not diabetic neuropathy. Further, the Board notes that although the Veteran's current neurological problems of the lower extremities were attributed to spinal stenosis, given that the Veteran is not currently service-connected for lumbar stenosis, secondary service connection cannot be awarded. The Veteran asserts that his neurological disability in his toes is due to his service-connected type II diabetes mellitus. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his neurological disability in this case. While the Veteran is competent to report experiences and symptoms since service, he is not competent to provide a nexus opinion regarding the nature and etiology of his disabilities. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of the numbness and tingling in his toes are relevant, competent, and credible; however, the question of the etiology of his neurological disability in his lower extremities is a complex medical finding that is limited to the purview of someone with medical knowledge and training, such as the VA examiner in this case. Thus, the Veteran's assertions of the etiology of his neurological disability are not competent evidence. The June 2016 VA examiner provided the most probative evidence as to the etiology of the Veteran's back disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The rationale was sufficient and accurately portrayed the evidence and addressed the relevant facts. It is clear that the examiner reviewed the entire claims file and considered the Veteran's contentions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In sum, the preponderance of the evidence does not show that the Veteran's neurological disability in his lower extremities are related to his active service, manifested within one year from the date of separation from service, or that they were caused by his service-connected disability. Since the preponderance of the evidence is against the claim, service connection for a neurological disability involving the lower extremities is not warranted. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a neurological disability involving the lower extremities, claimed as peripheral neuropathy, to include as secondary to type II diabetes mellitus, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs