Citation Nr: 1736598	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-31 020A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a neurological disorder of the bilateral lower extremities, including neuropathy and Morton's neuroma, to include as secondary to service-connected pes valgo planus.

2.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder.


REPRESENTATION

Appellant represented by:	Jan Dils, Esquire


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel
INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from October 1984 to July 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In a June 2015 statement, the Veteran, through the representative, withdrew the request for a Videoconference Board hearing and requested a decision based on the evidence of record.  Therefore, the hearing request is considered withdrawn.  38 C.F.R. § 20.704(d) (2016).

In July 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  The matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).  The issue of service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The Veteran does not have, nor has he had at any time proximate to, or during the course of this appeal, a current diagnosis of a bilateral lower extremity neurological disability.


CONCLUSION OF LAW

The criteria for service connection for a bilateral lower extremity neurological disability have not been met.  38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 
814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Service Connection for a Neurological Disorder of the Bilateral Lower Extremities

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  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.  38 C.F.R. § 3.303(d).  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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

The Veteran is not currently diagnosed with any bilateral lower extremity neurological disability.  Because the Veteran has no diagnosed bilateral lower extremity neurological disability, it necessarily follows that there is no "chronic disease" under 38 C.F.R. § 3.309(a) for which the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service would be applicable.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

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 evidence 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49.

The Veteran contends that he has pain in his legs and his feet with some tingling, which is secondary to the service-connected pes valgo planus.  After review of the lay and medical evidence of record, the Board finds that the weight (preponderance) of the evidence is against a finding of a current bilateral lower extremity neurological disability.

VA treatment records show that, in May 2011, the Veteran's feet tested positive for Mulder's sign, bilaterally, and he was diagnosed with rule out Morton's neuroma.  Since then, Morton's neuroma has been listed in the Veteran's medical history.  To assist in determining whether the Veteran has a current diagnosis of a neurological disability of the bilateral lower extremities, to include Morton's neuroma and neuropathy, the Veteran was afforded a VA examination of the peripheral nerves in June 2016 pursuant to the July 2015 Board Remand.

During the June 2016 VA examination, the Veteran reported that he has pain in his legs and his feet with some tingling, which is worse at night.  Significantly, the Veteran also indicated that he does not know if he has neuropathy, but that he has had the pain for years, since he was in his 30s.  The record reflects that the Veteran was 30 years old in 1995, approximately seven years after discharge from active service.

Upon objective testing, the VA examiner concluded that the Veteran does not have a peripheral nerve condition or peripheral neuropathy.  The VA examiner noted that the Veteran has subjective complaints of leg and foot pain with "tingling," as well as "diminished" sensory perception.  However, the VA examiner indicated that the remaining physical examination is normal.  The VA examiner explained that the Veteran has no history of Morton's neuroma, which was medically ruled out by MRI during podiatry evaluations for foot pain in 2010 and 2011.  The most recent podiatry exam dated in February 2015 stated the following, "Neuro: Negative Mulder's sign bilateral feet. Sharp/dull WNL.  Protective sensation is intact bilateral."  In addition, the VA examiner indicated that there were no leg or foot complaints made to the Veteran's primary care physician at the most recent visit dated in April 2016.

In this case, while the Veteran has competently complained of bilateral lower extremity pain and tingling, there is no current bilateral lower extremity neurological "disability."  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. West, 239 F.3d 1356, 1361-62 (Fed. Cir. 2001).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997).  Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C.A. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (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."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present.  McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that that, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency).

Although the Veteran has at least implicitly asserted that he experiences symptoms that are attributable to a diagnosis of a bilateral lower extremity neurological disability, he is a lay person and, under the facts of this case, he does not have the requisite medical expertise to diagnose a bilateral lower extremity neurological disability, or render an opinion as to the etiology of such symptoms claimed to be a bilateral lower extremity neurological disability.  An opinion as to diagnosis and causation of a bilateral lower extremity neurological disability involves making findings based on medical knowledge and clinical testing results, and the neurological system is complex and often involves unseen systems processes and disease processes that are not observable by the five senses of a lay person.  

The Veteran has also not reported contemporaneous medical diagnoses by a competent source, and his symptoms (bilateral lower extremity pain and tingling) have not later been supported by diagnoses rendered by a medical professional.  See Jandreau, 492 F.3d at 1372.  Consequently, the Veteran's purported opinion relating the reported bilateral lower extremity pain and tingling to a diagnosis of a bilateral lower extremity neurological disability are of no probative value.  Also, in this regard, although the Veteran generally complains of bilateral leg pain, the Veteran is already service connected for pes valgo planus with plantar fascial pain, left knee arthritis, left ankle strain, right knee MCL strain and meniscal tear, and right ankle strain.  In short, there is no diagnosed bilateral lower extremity neurological disability that accounts for the Veteran's complaints of bilateral leg pain and tingling.

In this case, the weight of the evidence is against finding a bilateral lower extremity neurological disability at any point during the claim period, including prior to the filing of the claim for service connection.  For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed bilateral lower extremity neurological disability.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  As previously noted, because a current bilateral lower extremity neurological disability has not been shown by competent evidence, the Board does not reach the additional question of the relationship (nexus) between any current bilateral lower extremity neurological disability and service, including as secondary to service-connected pes valgo planus.



ORDER

Service connection for a neurological disorder of the bilateral lower extremities, including neuropathy and Morton's neuroma, to include as secondary to service-connected pes valgo planus, is denied.


REMAND

Another remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal of service connection for an acquired psychiatric disability.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2014); 38 C.F.R. § 3.159(c), (d) (2016).

In this case, a psychiatric disability was not "noted" upon entry into active duty service.  See June 1984 Enlistment Report of Medical Examination.  As such, the presumption of soundness attaches and the burden falls upon VA to rebut the presumption of soundness by showing clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation.  While the Veteran was afforded a VA mental disorders examination in June 2016 pursuant to the July 2015 Board Remand, there is no etiology opinion specifically addressing the questions of whether the Veteran's acquired psychiatric disability, to include PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder, clearly and unmistakably preexisted service and, if so, whether the preexisting acquired psychiatric disability was clearly and unmistakably not aggravated by the Veteran's military service.  See 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2016).

Specifically, in the June 2016 VA examination report, the VA examiner opined that the diagnosed acquired psychiatric disabilities "all appear to be pre-existing conditions, that were in existence before the veteran ever joined the military."  The VA examiner further opined that it is less likely than not that the Veteran's pre-existing conditions (diagnoses) of PTSD, major depressive disorder, and alcohol use disorder were aggravated by the Veteran's experiences while in the military.  Because the acquired psychiatric disability was not "noted" at entrance into active service, the legal standard required is clear and unmistakable evidence that the acquired psychiatric disability both preexisted service and was not aggravated by service.  In opining that the currently diagnosed acquired psychiatric disabilities preexisted service and were not aggravated by service, the June 2016 VA examiner used a different legal standard (of reasonable doubt) instead of the higher, stricter evidentiary standard (clear and unmistakable evidence) in providing the opinions.  As such, the Board finds that an addendum VA opinion is necessary as there remains some question as to the etiology of the claimed acquired psychiatric disabilities.

Accordingly, the issue of service connection for an acquired psychiatric disability is REMANDED for the following actions:

1. If possible, request that the VA psychologist who conducted the June 2016 VA examination review the electronic file and provide an addendum medical opinion.  The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner.  If the June 2016 VA examiner is not available, obtain the requested opinion from another VA mental health professional.  If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary.

The examiner is informed of the following facts:

* The Veteran served on active duty from October 1984 to July 1988.  

* There are service treatment records and service personnel records in the file that pertain to the Veteran's period of service.  There are three (3) Document Types entitled, "STR - Medical," received 10/26/2015 and three (3) Document Types entitled, "Military Personnel Record," received 10/26/2015.  Some of the documents within the Military Personnel Records are for a person other than the Veteran.  In the Subject line, the Board has informed you of the pages that pertain to other person (not the Veteran). 

After a review of the file, the VA examiner should offer the following opinions:

a) Did the Veteran's acquired psychiatric disability, to include, but not limited to, PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder, clearly and unmistakably (i.e., obviously) exist prior to entrance into service in October 1984?

b) If it is the VA examiner's opinion that the acquired psychiatric disability, to include, but not limited to, PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder, preexisted service, was any pre-existing acquired psychiatric disability clearly and unmistakably not aggravated (not worsened beyond the natural progression) during active service?

In rendering the opinions requested in paragraphs 1a) and 1b), the VA examiner should use the explicit standard - clearly and unmistakably - to determine whether the acquired psychiatric disability preexisted service and was not aggravated by service.

Note: The term "aggravated" means a lasting increase in severity of the underlying disability that is not due to the natural progress of the disease.  An exacerbation of symptoms during service does not constitute aggravation.  Moreover, if the disability becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, there is no aggravation.

c) If, and only if, the VA examiner concludes that the Veteran's acquired psychiatric disability, to include, but not limited to, PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder, did not clearly and unmistakably pre-exist service in October 1984, OR that the preexisting acquired psychiatric disability was clearly and unmistakably not worsened by service beyond the natural progression, the VA examiner should then provide the following opinion:

Is it at least as likely as not (a 50 percent probability or greater) that any current acquired psychiatric disability, to include, but not limited to, PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder, began/had onset in service or is otherwise related to service?

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

In rendering the opinions requested in paragraphs 1a) through 1d), the VA examiner should assume, as fact, that the Veteran has current diagnoses of PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder.

A rationale should be given for all opinions and conclusions rendered.  The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to these claims.

2. After completion of the above and any additional development deemed necessary, the issue of service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, mood disorder with depression and anxiety, personality change due to general medical condition, and alcohol use disorder, should be readjudicated in light of all the evidence of record.  If the determination remains adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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