Citation Nr: 21006017 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-39 608 DATE: February 3, 2021 ORDER Service connection for neuropathy in the right lower extremity, including as due to the service-connected disabilities of diabetes mellitus, hypertension, and peripheral vascular disease, is denied. FINDING OF FACT The Veteran does not have a current nerve disability associated with the right lower extremity. CONCLUSION OF LAW The criteria for service connection for the claimed peripheral neuropathy in the right lower extremity, including as due to the service-connected disabilities of diabetes mellitus, hypertension, and peripheral vascular disease, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to May 1971. This matter is on appeal from a November 2015 rating decision issued by the Regional Office (RO) in Decatur, Georgia. The Veteran testified at a virtual Board hearing in November 2020 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 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). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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. See 38 C.F.R. § 3.303(d). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Allen v. Brown, 7 Vet. App. 439 (1995). The Federal Circuit recently held, however, that the term “disability” as used in 38 U.S.C. § 1110 and § 1131 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018). In this case, the disorder at issue, neuropathy, is an organic disease of the nervous system and, as such, is considered to be a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the chronic disease presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply. See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as neuropathy (an organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, 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 current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Service Connection for Neuropathy in the Right Lower Extremity, Including as Due to the Service-Connected Disabilities of Diabetes Mellitus, Hypertension, or Peripheral Vascular Disease The Veteran contends that while he was a field medic in Vietnam he hurt his right leg when he jumped into several holes. He claims that the reported neuropathy in the right lower extremity began in service when he was jumping into holes. See November 2020 Board Hearing Transcript. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current nerve disability of the right lower extremity. Post-service treatment records show no diagnosis relevant to the right lower extremity. VA examinations in September 2015 and January 2017, to assess the service-connected diabetes, indicated that the Veteran did not have neuropathy in the right lower extremity. Treatment records relevant to the claim show subjective complaints of pain in the right lower extremity. In this case, the medical and lay evidence does not show that the reported pain in the right lower extremity causes functional impairment to be considered a disability. No impairment of normal functioning or reduction in earning capacity due to nerve pain in the right lower extremity has been shown at any time during this claim. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that, to establish the presence of a disability, the evidence will need to show that the pain reaches the level of functional impairment of earning capacity). For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for the claimed neuropathy in the right lower extremity. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.