Citation Nr: 1217849 Decision Date: 05/18/12 Archive Date: 05/31/12 DOCKET NO. 10-05 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left and right lower extremities on a direct/presumptive basis. 2. Entitlement to service connection for peripheral neuropathy of the left and right lower extremities, as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1944 to May 1946. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Detroit, Michigan, which denied the Veteran's claims. The Board observes that the Veteran's initial service connection claim was for cold weather injuries to the bilateral feet, manifested by pain, numbness and tingling. Following the denial of that claim by the RO, he submitted a second claim for service connection for the bilateral feet, claimed as secondary to his service-connected right paralumbar soft tissue scar, status-post gunshot wound, but with the same symptoms. That claim was denied in a September 2010 rating decision. However, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") has held, among other things, that separate theories in support of a claim for benefits for a particular disability does not equate to separate claims for benefits for that disability. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Accordingly, as the Board finds that these claims have the same factual basis for purposes of 38 U.S.C.A. § 7104(b), the Board concludes that the Veteran's claims are essentially one and the same. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for peripheral neuropathy of the left and right lower extremities on a secondary basis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the left lower extremity was not present in service, did not develop to a degree of at least 10 percent within one year of separation from service, and is not otherwise shown to be causally-related to a disease, injury or event in service, to include residuals of a cold weather-related injury. 2. The Veteran's peripheral neuropathy of the right lower extremity was not present in service, did not develop to a degree of at least 10 percent within one year of separation from service, and is not otherwise shown to be causally-related to a disease, injury or event in service, to include residuals of a cold weather-related injury. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left lower extremity was neither incurred in, nor aggravated by, active service and may not be presumed to be. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2011). 2. Peripheral neuropathy of the right lower extremity was neither incurred in, nor aggravated by, active service and may not be presumed to be. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, VA essentially satisfied the notification requirements of the VCAA by means of letters dated in July 2008 and April 2010. The RO informed the appellant of the types of evidence needed in order to substantiate his service connection claims, the division of responsibility between the appellant and VA for obtaining the required evidence, and requested that the appellant provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The letters also informed the Veteran of how VA determines the disability rating and effective date elements of a claim, thereby satisfying the Dingess/Hartman requirement. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as VA examination reports dated November 2009 and March 2010. Additionally, the claims file contains the Veteran's statements in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claims that have not already been obtained and associated with the record. Review of the examination reports shows that the VA examiners reviewed the relevant evidence of record, elicited from the Veteran his history of service and post-service symptomatology, performed comprehensive clinical evaluations, and provided the results of such evaluations. They further provided detailed rationales for their conclusions. For these reasons, the Board concludes that the examination reports are adequate upon which to base decisions in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may be established for a disability resulting from personal injury suffered, or disease contracted, in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). 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) (2011). Additionally, service connection for certain organic diseases of the nervous system, such as peripheral neuropathy, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that while serving in France in 1945, he sustained injuries to his bilateral lower extremities due to exposure to cold temperatures and snow. As an initial matter, the Board observes that the Veteran's service treatment records contain no evidence of complaints of, treatment for, or a diagnosis of an injury or condition due to exposure to cold weather, such as frostbite. In addition, his May 1946 service separation examination report revealed no evidence of cold weather injury residuals, to include peripheral neuropathy, to either lower extremity. The first post-service treatment reports of record are dated 2009, and are comprised of both private and VA treatment records. Private treatment reports show that in February 2009, the Veteran underwent motor and sensory nerve conduction studies, as well as a needle electromyography, for complaints of low back pain with radiation into the left leg and numbness and tingling into the bilateral feet. He reported that the symptoms had remained unchanged for the previous four (4) years. The tests revealed evidence of a diffuse severe sensorimotor peripheral neuropathy with demyelination and axonal loss. Thereafter, in a one-sentence statement, dated March 2009, the Veteran's physician, Dr. Aquino, diagnosed the Veteran with neuropathy and wrote "maybe due to old shrapnel injury suffered during WWII." However, Dr. Aquino provided no explanation or basis for his statement. In November 2009, the Veteran was afforded a VA cold injury examination, at which time, he reported that his exposure to the cold in 1945 had only lasted for "minutes." He said that he neither sought, nor received, medical treatment for any cold injuries either during, or in the many years since separating from service. On examination, there were normal findings for the bilateral feet, including normal skin color, temperature and texture, as well as normal hair growth. Reflex and sensory examinations were also found to be normal. X-rays revealed no findings associated with cold injury residuals. The examiner opined that there was no clinical or medical evidence showing cold injury to the Veteran's lower legs, including the feet. In this regard, she noted that there was no evidence of complaints, treatment or a diagnosis of a cold weather injury to the bilateral lower legs or feet. She did, however, note that the Veteran had a significant history of tobacco abuse, with a 70-pack-year history of smoking. She further observed that he was 84 years-old and continued to smoke and, while she did not specifically attribute any condition to smoking, she did state that tobacco has significant vasoconstrictive effects. VA outpatient treatment records show that in January 2010, the Veteran was seen by his primary care physician for an opinion in connection with the denial of his service connection claims. He reported a history of shrapnel wounds to the back, as well as frostbite while serving in WWII. In reviewing the notes associated with the Veteran's claim, the clinician noted that there was no clinical evidence to support the history as reported by the Veteran. A physical examination revealed a strong pulse in the dorsal pedal area of the feet with no evidence of neurovascular compromise or erythema. There was also no evidence of pallor, although the clinician noted a hallux deformity of the feet with onychomycosis. Although the physician's impression was residuals of cold weather injury while serving during WWII, he indicated that the examination was essentially benign and noted that he would direct his nurse to perform a monofilament test and refer the Veteran for a consultation with a podiatrist. Later that month, the Veteran was seen in the VA podiatry clinic with complaints of hurting feet for more than 60 years. Upon examination, his feet were cool with supple skin, tubor at the toes and thick, yellow, brittle toenails bilaterally. A vascular evaluation showed weak but palpable pulses. Neurological senses were grossly intact. The diagnoses were bunion, foot pain and onychomycosis of all 10 digits. In March 2010, the Veteran was afforded a VA muscle examination, during which he complained of low back pain radiating to the left leg and numbness and tingling in the bilateral feet, symptoms which he said had remained unchanged for the previous four years. The Veteran reported that he still had shrapnel in his back from a gunshot wound in 1945, which he said affected his walking and left leg. He added that he had been told that there was nerve damage from his back injury. He said he had been hospitalized for one month during service following his gunshot wound injuries, after which time, he returned to full duty. Upon examination, he was found to have no residuals of nerve, tendon or bone damage. Pedal pulses were 1+ bilaterally, left toes were slightly dusky, and there was decreased pinprick sensation to the right and left lower extremities. The examiner diagnosed the Veteran with a shrapnel injury to the back muscle group XX without residual. Instead, he found that the Veteran had a diffuse lower extremity peripheral polyneuropathy that did not stem from the back, as shown by EMG results. In this respect, he noted that the Veteran had reported that his symptoms had begun four years earlier, in 2005, which would have been many years after his 1945 shrapnel injury. He concluded that there was no evidence of record that the Veteran sustained nerve damage from his shrapnel injuries that had resulted from his gunshot wounds in service. Based on a review of the complete claims folder, the Board finds that the probative and competent evidence of record is against the Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as a result of residuals of a cold weather injury. Rather, the Board finds the most probative evidence to be the reports of the VA examiners, who, after reviewing the evidence of record, performing comprehensive examinations, along with a review of diagnostic test results, and noting the Veteran's self-reported history, found no evidence to support his claim that his peripheral neuropathy was the result of service. As such, service connection on a direct basis is not warranted. In addition, post-service records show that the Veteran did not seek treatment for peripheral neuropathy until 2009, more than 60 years after military service; he also admitted to the 2009 VA examiner that he had not sought treatment at any time during or after service. In this regard, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The amount of time that passed between service and the first treatment or documented complaint of record of peripheral neuropathy of the lower extremities is evidence that weighs against the Veteran's claim on both a direct and presumptive basis, and further substantiates the fact that he has not suffered from chronic peripheral neuropathy ever since service. In addition to the medical evidence, the Board has also considered the Veteran's assertions concerning the cause of his peripheral neuropathy. In this regard, the Court has repeatedly held that laypersons, such as the Veteran, are competent to report what they experience with their own senses. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As such, his reports of foot and leg pain are entitled to some probative weight. However, a layperson without medical training or experience is not competent to offer an opinion on complex medical issues, such as associating pain, numbness and tingling of the feet, diagnosed some 60 years after service, with purported frostbite during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Moreover, the Court has held that, even where a veteran has asserted a continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition ...." See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). As a result, while the Board has considered the contentions of the Veteran, the Board ultimately places more probative weight on the medical evidence of record, including the VA examiners' reports and outpatient VA treatment records. Accordingly, while the Board sympathizes with the Veteran's belief that his peripheral neuropathy is the result of some incident of service, the Board concludes that the probative evidence of record is against the Veteran's claim on a direct and presumptive basis. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity, on both a direct and presumptive basis, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, on both a direct and presumptive basis, is denied. REMAND The Veteran also asserts that he has left and right peripheral neuropathy secondary to a service-connected disability, including right paralumbar soft tissue scar, status-post gunshot wound. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claim for secondary service connection. The probative evidence of record, including the Veteran's service and post-service treatment records, as well as the March 2010 VA examination report, reveals that the Veteran's recently-diagnosed diffuse lower extremity peripheral polyneuropathy is not the result of a disease or event in service, and neither manifested during service, nor within the one-year presumptive period following separation from service. In addition, although the examiner specifically noted that the Veteran's self-reported symptoms began many years after his 1945 shrapnel injury to the low back, he did not provide an opinion as to whether the Veteran's lower extremity peripheral neuropathy was the result of an already service-connected disability. Moreover, as the previous examiners did not opine as to whether the Veteran's peripheral neuropathy had been permanently aggravated by a service-connected disability (to include right paralumbar soft tissue scar, status-post gunshot wound), the report must include an opinion on the issue of aggravation. Because the Board may not rely on its own unsubstantiated medical conclusions, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), it must rely on an informed medical opinion in order to adjudicate a claim. As the VA examiners did not offer an opinion as to the possibility of a relationship between the Veteran's left and right lower extremity peripheral neuropathy and another service-connected disorder, including right paralumbar soft tissue scar, status-post gunshot wound, the Board finds that an addendum opinion or new examination is necessary. In addition, it appears that the most recent VA treatment reports of record pertaining to treatment for the Veteran's peripheral neuropathy are dated December 2010. Where VA has constructive and actual knowledge of the availability of pertinent reports in its possession, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). As records in the possession of VA are deemed to be constructively of record, they must be obtained. Id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Obtain all available VA treatment records pertaining to the Veteran's left and right peripheral neuropathy since December 2010 and associate with the claims folder. Any negative response must be noted in the claims folder. 2. Following completion of the above, schedule the Veteran for an examination with the VA examiner who performed the March 2010 examination; if such examiner is not available, schedule a new examination with an appropriate, qualified examiner to obtain an opinion as to whether either the Veteran's left or right lower extremity peripheral neuropathy was the result of another service-connected disability, to include right paralumbar soft tissue scar, status-post gunshot wound. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder and a copy of this REMAND must be provided to the clinician for review of pertinent documents therein, to include both the November 2009 and March 2010 VA examination reports, and the clinician must note that the claims folder has been reviewed. The examiner should be sure to elicit from the Veteran a complete history and symptomatology of his right paralumbar soft tissue scar, status-post gunshot wound. The examiner should indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's left or right lower extremity peripheral neuropathy was either caused or aggravated (a permanent worsening as opposed to temporary flare-ups or increase in symptoms) by a service-connected disorder, to include right paralumbar soft tissue scar, status-post gunshot wound. Any opinions expressed must be accompanied by a complete rationale, to include a discussion of the Veteran's documented medical history, as well as his statements and assertions. It would be helpful if the examiner would use the following language, as appropriate: "more likely than not," (meaning likelihood greater than 50%); "at least as likely as not," (meaning likelihood of at least 50%); or "less likely than not" or "unlikely" (meaning there is less than 50% likelihood). The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means 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 to find against causation. "More likely" and "at least as likely" support the contended causal relationship; "less likely" weighs against the claim. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history), and addresses such matters as whether 1) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); 2) the question falls outside of the limits of current medical knowledge or scientific development; 3) the condition manifested in an unusual way, such that its cause or origin is unknowable; or 4) there are other risk factors for developing the condition. 3. Thereafter, readjudicate the secondary service connection claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Claim and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2011). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs