Citation Nr: 21028401 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-00 570 DATE: May 11, 2021 ORDER Service connection for a heart condition is denied. Service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to service-connected diabetes mellitus, type II (diabetes), is denied. REMANDED Entitlement to service connection for an eye condition, including glaucoma, claimed as secondary to service-connected diabetes, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to service-connected diabetes, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed heart condition. 2. The Veteran does not have a current diagnosis of left upper extremity peripheral neuropathy, including as secondary to his service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to service-connected diabetes, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 decision, the Board remanded this matter for additional development. In consideration of the evidence of record, the Board has bifurcated and recharacterized the issue of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as reflected herein. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for disability 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 disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A disability for VA purposes includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a heart condition. The Veteran contends that he has a current heart condition that is related to, or caused by, service. However, the Veteran has not met the threshold element of any service connection claim, namely a current disability. There is no evidence of a current diagnosis of a heart condition, including a heart murmur. To the contrary, June 2013 and December 2020 VA examination reports affirmatively indicated that the Veteran does not have a current diagnosis or symptoms of a heart condition. While the June 2013 VA examination report indicated that the Veteran has a heart murmur, the VA examiner opined that it is an innocent murmur that is asymptomatic and does not constitute a heart disease. Furthermore, a March 2015 VA treatment record indicated that the Veteran had normal heart rhythm, with no murmurs, clicks, or gallops. While the Veteran has reported a history of a heart murmur since a young age, the record consistently reflects that he has no cardiac symptoms or diagnoses. See June 2013 and December 2020 VA examination reports; VA treatment records. Furthermore, while the June 2013 VA examination report indicated that the Veteran has an innocent heart murmur that is asymptomatic, the December 2020 VA examiner further clarified that although the Veteran was noted to have mild regurgitation across valves on echocardiogram, this can be visualized in normal individuals and is not indicative of valvular pathology consistent with a heart murmur. The Board finds the December 2020 VA examination report's assessment of the purported heart murmur to be the most probative evidence of record, as it is based on echocardiogram testing, while the June 2013 VA examination report's diagnosis of a heart murmur appears to be based solely on heart sounds. Thus, the Board concludes that the weight of the evidence supports a finding that the Veteran has not had a currently diagnosed of a heart condition, to include a heart murmur, throughout the period on appeal. Insomuch as the Veteran has attempted to establish a diagnosis of a heart condition through his own lay assertions, he is not competent to diagnose such because he is not shown to possess the requisite medical training. Thus, the Veteran's statements are not considered competent evidence of a current disability. It is acknowledged that any condition that results in functional impairment of earning capacity, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such condition results in functional impairment. Martinez-Bodon, supra. Here, however, the record reflects that the Veteran does not have any heart-related functional impairment in earning capacity. See December 2020 VA examination report. In sum, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have a currently diagnosed heart condition; therefore, the claim must therefore be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to service-connected diabetes, is denied. The Veteran contends that he has current peripheral neuropathy of the left upper extremity that is related to, or caused by, his service-connected diabetes. However, the Veteran has not met the threshold element of any service connection claim, namely a current disability. There is no evidence of a current diagnosis of peripheral neuropathy of the left upper extremity. To the contrary, the December 2020 VA examination report affirmatively indicated that the Veteran does not have a current diagnosis or symptoms of peripheral neuropathy of the left upper extremity. Furthermore, a February 2015 VA treatment record indicated that a nerve conduction study did not reveal any nerve condition of the left upper extremity. Insomuch as the Veteran has attempted to establish a diagnosis of peripheral neuropathy of the left upper extremity through his own lay assertions, he is not competent to diagnose peripheral neuropathy of the left upper extremity because he is not shown to possess the requisite medical training. Thus, the Veteran's statements are not considered competent evidence of a current disability. It is acknowledged that any condition that results in functional impairment of earning capacity, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such condition results in functional impairment. Martinez-Bodon, supra. Here, however, the record reflects that the Veteran does not have symptoms of or functional impairment due to peripheral neuropathy of the left upper extremity. See December 2020 VA examination report. In sum, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have currently diagnosed peripheral neuropathy of the left upper extremity; therefore, the claim must therefore be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an eye condition, including glaucoma, claimed as secondary to service-connected diabetes, is remanded. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In June 2013, the Veteran was afforded a VA diabetes examination. The VA examiner stated that review of the Veteran's VA records indicated that he had no diabetic retinopathy. In December 2020, the Veteran was again afforded a VA diabetes examination. The VA examiner stated that the Veteran did not have a current diagnosis of an eye condition that is at least as likely as not due to his service-connected diabetes. However, a March 2020 VA treatment record indicated that the Veteran has been diagnosed with, and is being treated for, glaucoma in the left eye. No etiology opinion has been obtained as to the Veteran's diagnosed glaucoma. Therefore, remand is warranted to obtain an addendum medical opinion addressing the etiology of the diagnose glaucoma of the left eye. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to service-connected diabetes, is remanded. As noted above, in December 2020, the Veteran was afforded a VA examination. The VA examiner stated that the Veteran does not have a diagnosis or symptoms of peripheral neuropathy of the right upper extremity. However, a February 2015 VA treatment record indicated that the Veteran has hand numbness and cramps and a nerve conduction study revealed evidence of "early axonal peripheral neuropathy with overimposed right mild focal median nerve entrapment at the wrist." Therefore, remand is warranted to obtain an addendum opinion as to the etiology of the Veteran's diagnosed peripheral neuropathy of the right upper extremity. 3. Entitlement to a TDIU is remanded. Finally, the Board finds that it must defer consideration of the issue of entitlement to a TDIU, as it is inextricably intertwined with the service connection issues remanded herein. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). The matters are REMANDED for the following actions: 1. Obtain an addendum medical opinion from the December 2020 VA examiner, or a suitable substitute, as to the nature and etiology of any eye disability, to specifically include diagnosed glaucoma of the left eye. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any currently eye disability, to specifically include diagnosed glaucoma of the left eye is related to, caused by, or aggravated by the Veteran's service-connected diabetes. It is noted that aggravation does not require that there be "permanent" worsening of the nonservice connected disability. Provide separate findings and rationales relating to causation and aggravation. A detailed rationale should be provided for the opinions rendered. 2. Obtain an addendum medical opinion from the December 2020 VA examiner, or a suitable substitute, as to the nature and etiology of the Veteran's diagnosed peripheral neuropathy of the right upper extremity. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the currently diagnosed peripheral neuropathy of the right upper extremity is related to or caused by the Veteran's service-connected diabetes. **The examiner should note the February 2015 VA treatment record indicating that the Veteran had hand numbness and cramps and a nerve conduction study revealed evidence of "early axonal peripheral neuropathy with overimposed right mild focal median nerve entrapment at the wrist." A detailed rationale should be provided for the opinions rendered. 3. Then, readjudicate the remaining issues on appeal. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.