Citation Nr: 1814967	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  11-33 495	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for right foot peripheral neuropathy, as secondary to left foot hallux valgus, status post traumatic arthritis and osteotomy.

2. Entitlement to service connection for left foot peripheral neuropathy, as secondary to left foot hallux valgus, status post traumatic arthritis and osteotomy.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1979 to August 1982. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 

These claims were previously remanded by the Board in September 2016 for additional development. That development has been completed and jurisdiction has returned to the Board. 

The Board notes that the previously remanded issue of service connection for an adjustment disorder with mixed anxiety and depressed mood has been granted and is therefore no longer on appeal before the Board. 

With regard to the Veteran's representation in this matter, the record shows that, in March 2009, the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of The American Legion. In January 2018, he executed a VA Form 21-22 in favor of Texas Veterans Commission. However, pursuant to 38 C.F.R. § 20.1304(b) (2017), any request for a change of representation after 90 days following the mailing of notice to the Veteran that an appeal has been certified to the Board for appellate review must be mailed to the Board with a good cause explanation. Accordingly, the Board may not accept the Veteran's January 2018 change in representation under the provisions of 38 C.F.R. § 20.1304(b) because this appeal was certified to the Board on October 3, 2017, and his request for a change in representation was received after 90 days of notification that the case had been certified to the Board. No good cause explanation for a change in representation has been received, and The American Legion submitted an Informal Hearing Presentation to the Board in January 2018.  Therefore, The American Legion represents the Veteran in this appeal; however, the Veteran's 2018 power of attorney may be recognized upon transfer of the case to the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304(b)(1)(i) (2017).

FINDINGS OF FACT

1. Right foot peripheral neuropathy was not caused or aggravated by his service-connected left foot hallux valgus, status post traumatic arthritis and osteotomy.

2. Left foot peripheral neuropathy was not caused or aggravated by his service-connected left foot hallux valgus, status post traumatic arthritis and osteotomy.


CONCLUSIONS OF LAW

1. The criteria for service connection for right foot peripheral neuropathy have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

2. The criteria for service connection for left foot peripheral neuropathy have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor the 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).

II. Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Service connection is also warranted for a disability, which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Board notes that the focus of the Veteran's contentions for service connection for his bilateral peripheral neuropathy is on a secondary basis to his service-connected left foot hallux valgus. The Board will address both feet together as the analysis is essentially the same for both disabilities. 

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against granting service connection for bilateral peripheral neuropathy, as the Veteran's bilateral peripheral neuropathy was not caused or aggravated by the service-connected left foot hallux valgus. The reasons for this determination are explained below.

There is evidence of a current diagnosis of bilateral peripheral neuropathy, and thus, evidence of a current disability is established.  Where the claim for secondary service connection fails is the nexus between the current disability and the service-connected disability of left foot hallux valgus. The Veteran was afforded a VA examination in both October 2009 and June 2017 for his claims of bilateral peripheral neuropathy. Both examinations and medical opinions indicated that the Veteran's peripheral neuropathy was not related to his service-connected left foot hallux valgus. For example, it was noted at both examinations that the Veteran had very poorly maintained diabetes and that his neuropathy disabilities were more likely than not related to that medical diagnosis, which is a disability for which the Veteran is not service connected. 

In addressing the Veteran's claim that this disabilities are caused by his left foot hallux valgus, the June 2017 examiner emphasized that the Veteran had had his left foot hallux valgus disability since service, but noted that the peripheral neuropathy issue did not begin until the Veteran developed his non-service-connected diabetes. The October 2009 examiner also wrote that if the Veteran's hallux valgus were the cause of the peripheral neuropathy, it would more than likely affect only the left side, not both legs; in particular, the symptoms would be in the left great toe as that is where the hallux valgus disability is located.

The Board's remand in September 2016 requested an opinion that addressed any potential aggravation of the Veteran's peripheral neuropathy by his service-connected left foot hallux valgus. The examiner stated that the medical literature available does not support that peripheral neuropathy can be aggravated by hallux valgus. 

The Board notes the Veteran's statements as well as his family members's statements in regard to his symptomology and etiology of his neuropathy. While the Veteran is competent to discuss the pain and other symptoms he is experiencing, the Veteran nor his family are not competent to establish the etiology of a complex disease process such as peripheral neuropathy. Therefore their statements are insufficient to establish a relationship to his service-connect left foot hallux valgus. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

The Board also notes that the Veteran has not provided a supporting medical opinion or evidence for his claim that connects his bilateral peripheral neuropathy to his service-connected left foot hallux valgus. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease [related to] service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The most probative and credible evidence establishes that the Veteran's bilateral peripheral neuropathy is not caused or aggravated by the service-connected left foot hallux valgus disability. 

For the above reasons, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for bilateral peripheral neuropathy. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for service connection for right foot and left foot peripheral neuropathy is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Service connection for right foot peripheral neuropathy, as secondary to left foot hallux valgus, status post traumatic arthritis and osteotomy, is denied.

Service connection for left foot peripheral neuropathy, as secondary to left foot hallux valgus, status post traumatic arthritis and osteotomy, is denied. 




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs