Citation Nr: 20006286 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 18-52 544 DATE: January 28, 2020 ORDER Entitlement to service connection for right leg peripheral neuropathy is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for unspecified vertiginous syndromes and labyrinthine disorders is remanded. FINDING OF FACT The Veteran’s right leg peripheral neuropathy did not originate in service, was not manifest to a compensable degree within one year of service and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for right leg peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1954 to January 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in February 2019. The Board recognizes that a separate appeal from the Veteran is active before the Board. However, that appeal originates from a different agency of original jurisdiction, and pursuant to the internal procedures of the Board, the two appeals will therefore be adjudicated separately. Service Connection 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; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as peripheral neuropathy, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for right leg peripheral neuropathy The Veteran seeks service connection for right leg peripheral neuropathy he contends had its onset during his active military service when he crashed through a glass door while chasing an escaped prisoner. There is no dispute that the Veteran has a current disability, as evidenced by his diagnosis of right leg peripheral neuropathy in his post-service VA treatment records. The remaining question for the Board is whether this disability began during service, was compensably disabling within one year of separation from service, or is otherwise related thereto. Turning to the evidence of record, the Veteran’s service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of right leg peripheral neuropathy. Post-service VA treatment records show a diagnosis of and treatment for right leg peripheral neuropathy with a note by the examining physician that this disability is likely due to pre-diabetes mellitus or low normal vitamin B12. Pursuant to the Board’s February 2019 remand directives, outstanding VA treatment records from Loma Linda were obtained. Review of the records do not reflect treatment for right leg peripheral neuropathy. After consideration of the entire record and relevant law, the Board finds that service connection for rig leg peripheral neuropathy is not warranted. The Board has reviewed all of the evidence of record, to include in-service and post-service treatment records, which does not support the finding that right leg peripheral neuropathy was demonstrated during the Veteran’s military service, that this claimed disability was compensably disabling within one year of separation from active duty, or that there is a nexus between the claimed disability and service. The Board acknowledges that the Veteran has not been provided with a VA examination with respect to his claimed right leg peripheral neuropathy. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that “indicate” that a current disability “may be associated” with service include, but are not limited to, medical evidence that suggests a nexus but 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 v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that a VA examination is not warranted. There is no evidence, other than the Veteran’s statements, which indicates that his claimed right leg peripheral neuropathy may be associated with service. Further, there is no credible evidence of in-service incurrence of this claimed disability, nor is there evidence the claimed disability manifested within one year of discharge. Here, post-service VA treatment records reflect a diagnosis of right leg peripheral neuropathy, but the Veteran’s STRs are silent for complaints of, treatment for, or a diagnosis of right leg peripheral neuropathy. Although his STRs show treatment in May 1956 following an incident whereby the Veteran crashed through a window while trying to catch an escaped prisoner, these records reflect that this incident resulted in only a left cheek laceration. Moreover, the Veteran did not report issues with his right leg during his January 1957 separation examination. Post-service VA treatment records reflect treatment for right leg peripheral neuropathy in 2018 and onward, approximately sixty-one years following separation from service. This period without treatment for right leg peripheral neuropathy is evidence that there has not been a continuity of symptoms. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Thus, while the Veteran has been diagnosed with right leg peripheral neuropathy, it did not have its onset in active service or within one year thereafter. Finally, there is no competent evidence of a nexus between active service and the Veteran’s claimed right leg peripheral neuropathy. The Veteran is considered competent to report the observable manifestations of his claimed disability. While the Veteran is competent to report observable symptoms, the etiology of right leg peripheral neuropathy is a complex medical question that is not within the competence of a lay person and requires medical expertise. As there is no indication that the Veteran has any medical training, education or expertise, the Board finds he is not competent to etiologically link any such symptoms to a current diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Although VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a “conclusory, generalized lay statement” that an event or illness during service caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Therefore, the Board finds that the Veteran’s statements as to the etiology of his right leg peripheral neuropathy are not sufficient to satisfy the requisite nexus requirement, nor are they sufficient to warrant a VA examination. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim of service connection for right leg peripheral neuropathy. Absent medical or other competent evidence of a nexus between the Veteran’s right leg peripheral neuropathy and service, the Veteran’s claim for service connection must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection, to include on a secondary basis, for unspecified vertiginous syndromes and labyrinthine disorders is remanded. The Veteran raised a new theory of entitlement in his January 2019 Informal Hearing Presentation (IHP), that his service-connected bilateral hearing loss caused or aggravated his unspecified vertiginous syndromes and labyrinthine disorders. The matter is remanded to obtain a medical opinion as to the nature and etiology of the Veteran’s claimed unspecified vertiginous syndromes and labyrinthine disorders, to include service connection on a secondary basis. The matter is REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any diagnosed unspecified vertiginous syndromes and labyrinthine disorders. The Veteran’s electronic claims file must be accessible for review by the VA examination in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed unspecified vertiginous syndromes and labyrinthine disorders had their onset in service or are otherwise directly related to service? b. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed unspecified vertiginous syndromes and labyrinthine disorders are proximately due to or caused by the Veteran’s service-connected bilateral hearing loss? c. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed unspecified vertiginous syndromes and labyrinthine disorders are aggravated (made worse beyond its natural progression) by the Veteran’s service-connected bilateral hearing loss? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 3. After completing all indicated development, the AOJ should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.