Citation Nr: A21017010 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 200831-135764 DATE: October 20, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for a gallbladder disability is dismissed. Entitlement to service connection for a hernia is dismissed. REMANDED Entitlement to service connection for a kidney disability is remanded. Entitlement to a disability rating greater than 10 percent for a lumbosacral spine disability is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not experience any current disability due to his claimed peripheral neuropathy of the bilateral upper extremities which could be attributed to active service. 2. In a letter date-stamped as received electronically by VA in May 2021, the Veteran, through his attorney, withdrew his appeal for service connection for a gallbladder disability and for a hernia; this withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for withdrawal of entitlement to service connection for a gallbladder disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). 3. The criteria for withdrawal of entitlement to service connection for a hernia by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1960 to September 1990, including in Thailand. This appeal has a long procedural history. A rating decision was issued under the Legacy system in February 2014 and the Veteran submitted a timely notice of disagreement. In August 2020, the Agency of Original Jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted these claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an August 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the August 2020 SOC. Therefore, the August 2020 SOC is the decision on appeal. In the August 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In March 2021, he withdrew the hearing request. His attorney subsequently attempted to move this appeal on to the Direct Review docket in August 2021 correspondence; however, this request is untimely and this appeal was not moved from the Hearing docket. Nevertheless, the Board finds there is no procedural harm to the Veteran's appeal in not moving his appeal to the Direct Review docket. He is receiving the benefit of the Direct Review docket prompt consideration of this AMA appeal without it being formally moved over to this docket which would impose additional administrative burdens on the Board without benefitting him. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In any event, the Board only may consider the evidence of record at the time of the August 2020 SOC as well as any evidence submitted by the Veteran or his attorney within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). As noted elsewhere, in a letter date-stamped as received electronically by VA in May 2021, the Veteran, through his attorney, withdrew his appeal for service connection for a gallbladder disability and for a hernia. 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for peripheral neuropathy of the bilateral upper extremities. He essentially contends that he incurred peripheral neuropathy of the bilateral upper extremities (which he characterized as tingling of the hands) during active service and experienced continuous post-service disability. The record evidence does not support these assertions. It shows instead that, although he has complained of numbness and tingling in his hands since his service separation, there is no diagnosis of peripheral neuropathy of the bilateral upper extremities which could be attributed to active service. The Board notes initially that the available service treatment records show no complaints of or treatment for peripheral neuropathy of the bilateral upper extremities at any time during his 30 years of active service. Clinical evaluation was within normal limits at his enlistment physical examination in September 1960. He denied any relevant in-service medical history at his separation physical examination in April 1990, prior to his separation from service in September 1990. Clinical evaluation also was within normal limits at his separation physical examination. The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for peripheral neuropathy of the bilateral upper extremities. It shows instead that, although the Veteran complained of and sought treatment for a variety of complaints, to include numbness and tingling in his hands, in the decades since his service separation, there is no diagnosed peripheral neuropathy of the bilateral upper extremities which could be attributed to active service. For example, on VA peripheral nerves conditions Disability Benefits Questionnaire (DBQ) in December 2013, his complaints included "dropping things and occasional numbness in the hand but not to any specific digits." This discomfort occurred twice a day and lasted 4-5 minutes. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. His symptoms were mild intermittent pain of the left upper extremity and mild paresthesias and/or dysesthesias of the bilateral upper extremities. Two point discrimination was normal in both hands. There was no thenar motor weakness. Physical examination showed 5/5 muscle strength in the elbows and wrists, normal reflexes and sensation, and normal median nerves. The VA examiner concluded that the Veteran's history and examination are "suggestive but not diagnostic" of bilateral carpal tunnel syndrome. The Veteran's attorney asserted in a May 2021 appellate brief that peripheral neuropathy of the bilateral upper extremities was due to diabetes mellitus. She also asserted that the November 2013 VA examiner had found evidence of a "peripheral nerve condition but never addressed or diagnosed peripheral neuropathy but only diagnosed carpal tunnel syndrome. There was no discussion as to the possibility that the [Veteran] could have peripheral neuropathy secondary to" diabetes mellitus. She asserted further that the November 2013 VA examination was inadequate because it did not diagnose the Veteran as having peripheral neuropathy of the bilateral upper extremities. In advancing an argument concerning the adequacy of the November 2013 VA examination, the Veteran, through his attorney, appears to be raising a general challenge to the professional competence of the VA examiner who conducted this examination. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor his attorney has raised a specific challenge to the professional medical competence or qualifications of the VA examiner who conducted the November 2013 examination. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. Other Federal Circuit precedent also suggests that VA may rely upon the November 2013 VA examination in adjudicating this claim. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his attorney has identified or submitted any evidence or argument that the November 2013 VA examiner was not competent or lacked the professional medical training necessary to review the claims file, including service treatment records and post-service VA and private treatment records, and diagnose the Veteran. It appears instead that, in the May 2021 appellate brief, the Veteran's attorney merely disagrees with the findings made at the November 2013 VA examination because they did not result in a diagnosis of peripheral neuropathy of the bilateral upper extremities. The attorney then engages in speculation by suggesting in the appellate brief that it was error for the November 2013 VA examiner not to discuss "the possibility that the [Veteran] could have peripheral neuropathy secondary to" diabetes mellitus. (Emphasis added.) The Board recognizes that a service connection claim for diabetes mellitus is on remand to the AOJ and is the subject of a separate AMA appeal. Current regulations provide that service connection may not be based on a resort to speculation or even remote possibility, however. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board cannot require a VA examiner to engage in the sort of speculation suggested by the Veteran's attorney in the May 2021 appellate brief especially where there is no evidence of current disability. The Board also cannot attempt to resolve the speculative medical questions presented by the Veteran's attorney in the appellate brief concerning the contended etiological relationship between the claimed peripheral neuropathy of the bilateral upper extremities and active service especially where there is no evidence of current disability. See also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding Board prohibited from exercising its own independent judgment to resolve medical questions). In other words, there is no support for the assertion by the Veteran's attorney in the May 2021 appellate brief that the November 2013 VA examination is inadequate. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291 92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019). There has been no showing or even an allegation that the November 2013 VA examiner was not competent or did not report accurately what she found in her review of the claims file. The Board also finds that this examination is adequate for evaluation purposes because it addressed fully all of the Veteran's contentions regarding his claimed peripheral neuropathy of the bilateral upper extremities. The Board notes in this regard that, absent a diagnosis of peripheral neuropathy of the bilateral upper extremities, the November 2013 VA examiner was not required to engage in speculation regarding the contended etiological relationship between this claimed disability and active service (as noted above) or otherwise discuss it in this examination report. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced peripheral neuropathy of the bilateral upper extremities at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the unsupported lay assertions of the Veteran and his attorney that he experiences any current disability due to his claimed peripheral neuropathy of the bilateral upper extremities which could be attributed to active service. A review of the outpatient medical records likewise reveals no evidence of an upper extremity disability. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. In summary, the Board finds that service connection for peripheral neuropathy of the bilateral upper extremities is not warranted. Withdrawn Claims 2. Entitlement to service connection for a gallbladder disability and for a hernia is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In Acree, the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). As noted in the Introduction, in a letter date-stamped as received electronically by VA in May 2021, the Veteran, through his attorney, withdrew his appeal for service connection for a gallbladder disability and for a hernia. The Board finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he has pursued these claims for many years. The Board also finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he was represented by his attorney when he withdrew his appeal for these claims in May 2021. Having reviewed the record evidence, the Board finds that withdrawal of these claims was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. See Acree, 891 F.3d at 1009. Accordingly, the claims of service connection for a gallbladder disability and for a hernia are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a kidney disability is remanded. The Veteran also contends that he incurred a kidney disability during active service and experienced continuous post-service disability. The record evidence shows that he was diagnosed as having and was treated for chronic kidney disease beginning in approximately 2013. To date, however, the AOJ has not scheduled an examination to determine the nature and etiology of his kidney disability. This constitutes a pre-decisional duty to assist error which requires remand. Thus, the Board finds that, on remand, an examination should be scheduled which addresses this matter. 2. Entitlement to a disability rating greater than 10 percent for a lumbosacral spine disability is remanded. The Veteran finally contends that his service-connected lumbosacral spine disability is more disabling than currently evaluated. The record evidence shows that his most recent VA examination for a lumbosacral spine disability occurred in February 2014, more than 7 years ago. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). During the pendency of this appeal, the Court also issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. It does not appear that the medical evidence of record complies with Correia. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in February 2014, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected lumbosacral spine disability. The matters are REMANDED for the following action: 1. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's kidney disability. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a kidney disability is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetes mellitus caused or aggravated a kidney disability. A rationale must be provided for any opinion(s) expressed. 2. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected lumbosacral spine disability. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.