Citation Nr: 21069278 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-12 824 DATE: November 18, 2021 ORDER Entitlement to service connection for neuropathy of the right upper extremity is denied. REMANDED Entitlement to service connection for a right club foot, claimed also as a right foot disorder, is remanded. Entitlement to service connection for type 2 diabetes mellitus is remanded. Entitlement to service connection for a back disorder, herniated discs with arthritis is remanded. Entitlement to service connection for sciatica is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of neuropathy of the right upper extremity. CONCLUSION OF LAW The criteria for service connection for neuropathy of the right upper extremity is not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1965 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2016 by a Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for neuropathy of the right upper extremity is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In a February 2016 claim, the Veteran noted that he was seeking service connection for right upper extremity neuropathy. The Board finds that there is no current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Upon review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence shows no diagnosis of peripheral neuropathy in the right upper extremity. In October 2006 VA medical records, the Veteran complained of pain in his hands. After examination, the Veteran was diagnosed with DJD of the carpometacarpal joints and Dupuytren's Contracture. The Veteran denied neuropathy in the upper extremities multiple times in 2018 VA records despite reporting neuropathy and numbness in other parts of his body such as his lower extremities. The Veteran reported pain in his hands, but this pain was attributed to the extensive hand arthritis previously documented in the VA treatment records as well as in July 2006 private treatment records. The Veteran had a separate claim for arthritis of the hands which he did not appeal. Although a diagnosis is not always necessary to establish a current disability, which may be demonstrated by evidence of functional impairment of earning capacity, the Veteran has not provided such evidence. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Furthermore, the Veteran was provided with a VA examination to evaluate his condition in November 2020. The examiner found that the Veteran was diagnosed with diabetic neuropathy but only observed symptoms in his lower extremities. The examiner noted that the Veteran did not have diabetic peripheral neuropathy in the upper extremities. The evidence also does not indicate that any reported hand pain is related to service or a service-connected disability. The Veteran is not competent to provide any linkage in that regard as such a nexus opinion requires medical knowledge, because the development of an internal nerve condition due to chemical exposures or to a service-connected condition is not capable of lay observation. Furthermore, there is no allegation of continuous symptoms or early-onset peripheral neuropathy that would create a link to service. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right club foot, claimed also as a right foot disorder, is remanded. In the January 2019 Board remand, the Board requested an examination to assess whether the Veteran's club foot is a congenital condition that was aggravated due to military service. The December 2019 VA examination report noted that the club foot condition is congenital. However, the corresponding medical opinion indicated that the Veteran's club foot "clearly and unmistakably existed prior to service, [but] was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The rationale was that there is no medical evidence of permanent worsening. However, this is a conclusory opinion. The Board also notes that the examiner did not properly consider that aggravation means an increase in disability beyond the natural progression. The Board also notes that the examiner was not asked to address whether the Veteran's club foot condition was a defect or a disease. It has repeatedly been addressed as a congenital condition. As such, the examiner should opine as to whether the condition is a defect or disease in the addendum opinion and provide an opinion supported by adequate rationale. 2. Entitlement to service connection for type 2 diabetes mellitus is remanded. The examiner provided a nexus opinion in November 2020. The examiner determined that the Veteran's diabetes mellitus was less likely than not related to service. The examiner relayed the timeline of the Veteran's medical records regarding diabetes treatment but noted that it was unclear as to when the Veteran's diabetes began. The examiner found that there was not enough evidence to determine when the Veteran was diagnosed with diabetes and whether it was related to service. As such, he denied a nexus. The Board finds this opinion to be vague and unsupported by proper rationale. The lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The Court has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Veteran should be provided with another VA medical opinion. 3. Entitlement to service connection for a back disorder, herniated discs with arthritis is remanded. 4. Entitlement to service connection for sciatica is remanded. Remand is also required for an adequate VA addendum opinion regarding the Veteran's back condition and sciatica. The examiner was asked to determine whether the Veteran's herniated disc with arthritis and sciatica was caused by service or aggravated by his club foot condition. In a December 2019 VA opinion the examiner denied nexus. The examiner noted that the Veteran did not complain of back problems in service and that the Veteran had a physically demanding job after service. The examiner noted that the Veteran had a significant leg length discrepancy, which was often seen with a club foot condition, and noted that this was the likely cause of the back condition. The examiner finds this opinion to be inadequate as the examiner denied direct service connection by relying largely on the lack of documentation in the STRs. The examiner then noted the Veteran's physically demanding civilian occupation but did not provide any explanation or rationale as to why that disproved nexus. The Board also finds this opinion to be confusing as the examiner denied aggravation of the Veteran's back condition by his club foot condition but did not provide any rationale. The examiner then attributed the back condition to the altered gait associated with club foot despite denying a connection between the conditions. Finally, the examiner addressed the Veteran's back condition but did not actually address the Veteran's sciatica. The examiner was directed to address both conditions in the prior Board remands. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. As such, remand is required to cure these discrepancies. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran's club foot condition from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. Explain whether the Veteran has a congenital or developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. Please provide a complete explanation for the opinion. The examiner is asked to note the lay statements and the Veteran's hearing testimony regarding this issue. If it is a congenital or developmental defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional foot disability. Please provide a complete explanation for the opinion. If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that it pre-existed active service. Please provide a complete explanation for the opinion. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing disease WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. 2. Obtain an addendum opinion regarding the etiology of the diabetes mellitus from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diabetes mellitus had onset in, or is otherwise related to, active service. 3. Obtain an addendum opinion regarding the etiology of the spine condition and sciatica from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the back condition and sciatica had onset in, or is otherwise related to, active service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the back condition and sciatica is caused or aggravated by the club foot condition. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.