Citation Nr: 21028564 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-39 908 DATE: May 11, 2021 ORDER Service connection for bilateral lower extremity peripheral neuropathy is denied. FINDING OF FACT The Veteran's bilateral lower extremity peripheral neuropathy was not initially manifested during service, may not be presumed to have been incurred during service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to October 1973. He did not serve in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 Agency of Original Jurisdiction (AOJ) decision. The Veteran perfected a timely appeal to the Board, which issued a denial decision in December 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court approved a Joint Motion for Remand filed by both parties to the case, vacated the Board's decision, and remanded for action consistent with the Joint Motion for Remand. The Board then remanded in February 2020 with instructions to the AOJ to obtain private medical records, VA medical records, and VA medical opinions. The Board finds there was substantial compliance with the February 2020 Remand. VA records and medical opinions were obtained. The AOJ requested that the Veteran execute the required release of information forms so that the VA could assist him by obtaining copies of his private medical records in a March 2020 letter. The letter was mailed to the Veteran's address of record and was not returned by the Postal Service as undeliverable. However, the Veteran did not complete and return the forms. Because VA cannot request private medical records without the permission of the Veteran, these forms are essential to obtain such records for review by adjudicators. Although the Veteran had previously submitted such release forms in 2013, the permission expires, according to the notice printed on the face of the forms. Therefore, because the Veteran has not provided an updated authorization, the VA is unable to request such records. "The duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished to fully develop his claim, he had a corresponding duty to assist by submitting the release of information form to VA. The Board therefore holds that, even though the Veteran's claim has not been fully developed, the VA has fulfilled its duty to assist him to the extent possible. We will thus proceed to evaluate the Veteran's claim based on the evidence currently of record. The Court remand and the Board remand also addressed the question of entitlement to service connection for a left knee disability. Following the development requested in the February 2020 Board remand, the AOJ granted service connection for a left knee disability in October 2020. This grant represents a complete resolution of the appeal as to that issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases, such as diabetes mellitus and organic diseases of the nervous system, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations pertaining to herbicides used in Vietnam, provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus and early-onset peripheral neuropathy, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Historically, the medical evidence and the Veteran's history indicates that peripheral neuropathy of both legs was initially manifested in 2014. There is no indication of peripheral neuropathy in his service treatment records, or in his post-service treatment records, which are available back to 1976. As peripheral neuropathy of the bilateral lower extremities was not manifested during service or for many years afterwards, direct service connection based upon service incurrence is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Similarly, because the Veteran did not serve in Vietnam, he is not eligible for the legal presumption of service connection for herbicide-related diseases. 38 C.F.R. §§ 3.307, 3.309. The VA obtained an informed medical opinion regarding the etiology of the Veteran's peripheral neuropathy in October 2020. A medical doctor with special expertise in internal medicine reviewed the Veteran's available medical records and performed a clinical examination. The examiner concluded that the Veteran's right and left lower extremity peripheral neuropathy was proximately caused by his diabetes mellitus. Service connection for diabetes was denied by the AOJ in August 2013. The Veteran did not appeal this decision and it thus became final one year after he was notified of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Review of the Veteran's file shows, however, that diabetes was not incurred during service, and although the Veteran had pre-diabetic signs in 1976, no diagnosis of diabetes was assigned during service or within one year of discharge from service. Therefore, as the Veteran's peripheral neuropathy has been medically associated with his diabetes, which is not service-connected, the peripheral neuropathy may not be service-connected either. 38 C.F.R. § 3.310. In sum, there is no legal basis to support an award of service connection for bilateral lower extremity peripheral neuropathy. The preponderance of the evidence is against the claim and service connection is denied. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.