Citation Nr: 23019907 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 10-16 433 DATE: March 30, 2023 ORDER Entitlement to service connection for a neurologic disability of the legs (claimed as bilateral peripheral neuropathy) is denied. FINDING OF FACT The Veteran does not have a neurologic disability of the legs that had its onset in service or within one year of service or is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurologic disability of the legs have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded by the Board in July 2017, September 2019, and September 2022 for further development by the Agency of Original Jurisdiction (AOJ). In the July 2017 Board remand, the Board directed the AOJ to ask the Veteran to identify any outstanding records and to schedule the Veteran for a VA examination to determine the nature, date of initial onset, and etiology of any neurologic disability affecting the Veteran's lower extremities. In the September 2019 Board remand, the Board determined that the AOJ made several attempts to schedule the VA examination, but the examination could not be scheduled because the Veteran was incarcerated. When the Veteran was released from jail in May 2019 the examination was scheduled, but later declined by the Veteran. However, the claims file did not appropriately annotate this exchange. Accordingly, the Board remanded so that the AOJ could obtain and associate with the claims file all outstanding post-service medical records and to request that the Veteran be scheduled for an appropriate VA examination. In the event the Veteran was unwilling to participate in a VA examination, the Board directed that an appropriate VA clinician review her file and provide a medical opinion. In the September 2022 Board remand, the Board found that the AOJ, after determining that the Veteran was again incarcerated, made numerous unsuccessful attempts to contact the county facility to schedule an examination. Upon her release, the AOJ sent two requests to the Veteran's home but was later informed that the Veteran was again incarcerated as of March 2021. Thereafter, the AOJ made three attempts to schedule an examination at the county facility, but the facility was unresponsive, and the examination was canceled. The Board determined that it did not appear that the AOJ attempted to forward the claims file to an appropriate clinician to address the requested medical opinions as directed by the September 2019 Board directive. Therefore, the Board remanded the case back to the AOJ and directed the AOJ to ascertain the Veteran's current incarceration status, to contact the Veteran to request a release for any outstanding post-service treatment records, obtain and associate all outstanding records to the claims file, and to request a VA examination or request that an appropriate VA clinician review the Veteran's file and provide a medical opinion if she is unwilling or unable to participate in the examination. In accordance with the September 2022 Board directives, the AOJ confirmed that the Veteran is currently incarcerated. In September 2022, a request was sent to the Veteran's appropriate address requesting the medical release, but no response was received. In November 2022, a VA peripheral nerve condition examination was conducted. A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all available records identified by the Veteran have been sought. The duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The examination reports and opinions are thorough and adequate for the Board to render a decision in the Veteran's appeal. 38 U.S.C. § 5103A (a)(2). The Board finds that substantial compliance was met. See Stegall at 271. As such, the Board may proceed to consider this claim. SERVICE CONNECTION Establishing service connection generally requires competent evidence of the following: (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 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. 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). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including peripheral neuropathy, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Nix v. Brown, 4 Vet. App. 462, 466 (1993). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker v. Shinseki at 1338. Entitlement to service connection for a neurologic disability of the legs is denied. The Veteran contends that her symptoms of pain and numbness of her bilateral lower extremities had its onset in 2003, while in-service. A review of the Veteran's service treatment records (STRs) does not show any reports or treatment for peripheral neuropathy or any related symptoms. Her records do show reports of back pain. However, her STRs show that she consistently denied any issues with her lower extremities. Her November 2002 entrance examination report was normal to neurologic and lower extremities issues. Furthermore, the Veteran specifically denied any numbness, tingling, or weakness down the lower extremities in a May 2003 treatment record. In July 2003, the treatment report noted that the pain she experienced in her lower back does not cause any radicular symptoms into her legs. Lastly, a lower extremities examination was conducted during her November 2003 separation examination due to reports of back pain, which resulted in normal findings. In sum, the Veteran did not have a diagnosis of a neurologic disability of the legs in service. The Veteran was afforded an April 2004 VA examination where she did note shooting pains up and down her spine. A neurological examination was conducted and the results were negative for a neurologic disability. In fact, the first post-service report of pain and numbness in the lower extremities contained in a medical treatment record is not until May 2011, when the Veteran reported pain radiating down her leg, causing numbness. At this medical visit, tenderness of the extremities was noted, but no diagnosis was indicated. See May 2011 private medical record. In a November 2022 VA examination for peripheral nerve conditions, the Veteran reported that since 2003 she has intermittently experienced sharp shooting pains, described as numbness, tingling, and/or burning, up and down her spine from the lumbar to the front of the legs bilaterally. However, the examiner noted that the Veteran did not have any symptoms attributable to any peripheral nerve condition. All muscle strength testing, sensory testing, and reflex testing was normal upon examination. Her gait was deemed normal. There was no evidence found on examination to support a diagnosis of a peripheral nerve condition and there were no other pertinent physical findings, complications, conditions, signs or symptoms related to any neurological disability of the bilateral lower extremities. Here, the Board recognizes the Veterans report of bilateral lower extremity pain. However, although she may be competent to report pain, she is not competent to attribute such pain to an actual diagnosis as this requires a level of medical training that the Veteran does not possess. Moreover, such a diagnosis requires a level of diagnostic testing. The Veteran's reports of subjective lower extremity neurological symptoms have been considered by the November 2022 VA examiner. A VA examination was conducted with several various diagnostic tests, including the pertinent and relevant diagnostic tests deemed appropriate by the medical professional. The physical examination of the Veteran was thorough, and the tests revealed that the Veteran's bilateral lower extremities were normal as to a neurological disability. The Board gives significant probative weight to the competent medical evidence, specifically the November 2022 VA examination report, whereas no diagnosis of a neurological lower extremity disability was established. The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. The Board is mindful of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, in this case, there is no showing of a functional impairment related to a bilateral lower extremity neurological disability. See November 2022 VA Examination Report. In sum, April 2004 and November 2022 examination reports, along with various medical records, do not reveal a diagnosis of a neurological disability of the lower extremities. The evidence weighs persuasively against the finding that the Veteran had a neurological disability of the bilateral lower extremities present at any point proximate to the claim or during the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). In the absence of a current disability, the claim for a neurological disability of the bilateral lower extremities must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. It is important to note that to the extent that the Veteran has reported bilateral lower extremity pain in context of and connection to back pain, she is not service-connected for any back disability. Continued on the next page The evidence weighs persuasively against service connection and the benefit of the doubt rule does not apply. Lynch v. McDonough, 999 F.3d 1391, 1394-95 (Fed. Cir. 2021). Therefore, entitlement to service connection is denied. S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Navin, N. M., 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.