Citation Nr: 1308141 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-11 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a left lower extremity disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In April 2009, September 2011, and June 2012, the Board remanded this matter for further evidentiary development. Having been completed, the Board is now ready to proceed with appellate disposition. FINDINGS OF FACT The competent and probative medical evidence of record preponderates against a finding that the Veteran's left lower leg disability, variously diagnosed as axonal polyneuropathy and L5-S1 radiculopathy, is due to events in active service; it is not proximately due to, the result of, or aggravated by a service-connected disability; and as organic diseases of the nervous system, neither polyneuropathy or radiculopathy is shown to have been manifested to a compensable degree within one year after the Veteran's separation from service in February 1970. CONCLUSION OF LAW The criteria for service connection for a left lower extremity disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in March 2005. Notice pursuant to the Dingess decision was provided in June 2009 and the claim was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence (post-service VA outpatient treatment records), provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information or evidence. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some 'chronic diseases,' such as other organic diseases of the nervous system, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, slip op. at 13 (Fed. Cir. Feb. 21, 2013). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). 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. See 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"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that he has a left lower extremity disability, variously diagnosed as L5-S1 radiculopathy and axonal polyneuropathy, as a result of receiving rabies vaccine in service. Specifically, he testified before the Board in March 2009 and indicated that a little dog nipped him on the leg in service. BVA transcript at 3. He indicated that he had an allergic reaction to the rabies serum requiring him to receive additional shots. Id. He further testified that a VA treatment provider told him that the rabies vaccine may have caused nerve damage. BVA Transcript at 6. He stated that he did not have left leg problems prior to service. BVA Transcript at 10. The service treatment records reflect the Veteran reported cramps in his leg on his January 1967 enlistment report of medical history. The provider noted the Veteran injured his right knee prior to service. A left leg disability was not found upon the corresponding enlistment examination. In December 1969, the Veteran informed treatment providers that he had an open cut on his leg and came into contact with a rabid puppy one month prior. He underwent anti-rabies shots and received a booster. There was no indication the Veteran had an allergic reaction to the vaccine. On the February 1970 medical history taken at separation from service, the Veteran reported cramps in his legs and reaction to serum, drug, or medicine. No remarks were made by the examiner. The corresponding physical examination was negative. The Veteran's lower extremity and neurological evaluations were both normal. Post-service, the Veteran first reported in August 2004 that he was diagnosed with a degenerative muscle disorder in 1985. He indicated that he could not walk far before he became tired. In January 2005, VA treatment providers noted degenerative muscle disease by symptoms, rule out myasthenia gravis versus thyroid disease versus less likely diabetes mellitus. In February 2005, the Veteran indicated he had a history of muscle biopsy for degenerative muscle disease, but he declined treatment. The Veteran complained of weakness when he walked or climbed stairs. Private treatment records dated in June 2004 contain radiographic evidence of degenerative disc disease of the lumbar spine. An electromyography (EMG) performed in May 2005 revealed left L5-S1 radiculopathy and severe axonal polyneuropathy in the lower limbs. VA outpatient treatment records dated in June 2005 noted the Veteran reported a history of rabies while in service and experiencing serum sickness requiring the use of steroids after receiving the rabies vaccine. The Veteran endorsed left leg pain since the 1970s. In November 2007, the Veteran reported no acute problems. Polyneuropathy rule out secondary to rabies and treatment in 1968 versus Lyme versus Agent Orange exposure was noted in the active problem list. The Veteran was diagnosed with Type II diabetes mellitus in November 2007. The Veteran was afforded a VA peripheral nerves examination in November 2010, after which the examiner opined left leg radiculopathy and axonal polyneuropathy was not caused by or a result of his service-connected diabetes mellitus. The examiner reasoned that the Veteran's radiculopathy symptoms of the left leg were clearly due to the lumbar spine condition, which was confirmed by EMG and lumbar spine magnetic resonance imaging (MRI). The examiner noted that this was also confirmed by neurology examination. The examiner indicated that diabetes did not cause radiculopathy. Peripheral neuropathy was diagnosed in 2005 and diabetes was diagnosed in 2007 and thus, the examiner found that the Veteran's neuropathy preceded his diabetes. Finally, the examiner stated that the Veteran's diabetes was not severe and did not require medication. The November 2010 VA muscle examiner diagnosed the Veteran with peripheral neuropathy of the left lower extremity, etiology unknown. The examiner further indicated that the Veteran had left L5-S1 radiculopathy, not related to the claim for peripheral neuropathy, but which could add to symptomatology and could be indistinguishable at times from the effects of axonal polyneuropathy. The examiner concluded that he could not resolve the etiology question with regard to axonal polyneuropathy without resorting to mere speculation. The examiner reasoned that search of database and adverse reactions to rabies vaccinations currently available did not list any type of polyneuropathy as an adverse effect. The examiner further indicated there was no evidence currently available regarding the older type of vaccines available when the Veteran was vaccinated. The September 2011 VA examiner opined axonal polyneuropathy was less likely than not incurred in or caused by the rabies vaccination. The examiner reasoned that rabies infection was a grey matter infection that travelled through the peripheral nerve system but resides in the central nervous system and not the peripheral axons. The examiner stated there was a brief prodrome that lasted 1 to 4 days and consisted of local site symptoms but there were no reports that he could find of this becoming chronic. The examiner indicated rabies affected the central nervous system/brain. The side effects of rabies vaccinations included erythema, swelling and induration. These were self-limited and resolved within a couple of weeks. There were very rare cases of Guillian Barre with the vaccination, but the Veteran's left leg symptoms were not Guillian Barre. The examiner further stated that the Veteran's left leg symptoms were due to radiculopathy from his well documented lumbar spine condition. In a June 2012 addendum opinion, the September 2011 VA examiner opined the Veteran's left lower extremity condition was less likely than not related to, caused by, or aggravated by his service-connected diabetes mellitus. The examiner reasoned that the left leg condition was clearly documented as being a radiculopathy based on the objective evidence of lumbar spine MRI, EMG studies and confirmed by a neurologist. The examiner stated that the unilateral location and distribution of the symptoms were radicular in nature. The neurologist who treated the Veteran had assessed his condition in depth with the conclusion that this was radiculopathy, which is a physical compression/interaction of a nerve in the spinal cord/canal. It was that interference that caused the specific nature of the Veteran' symptoms, confirmed by MRI. Diabetic peripheral neuropathy was a completely different process in which glycosylation of the nerves causes the symptoms. It was a metabolic process which affected different nerves in different fashion to radiculopathy. Diabetes did not cause worsening of degenerative disc disease which in turn is responsible for radiculopathy. Aging, trauma, and degenerative process causes the progression of disc disease. The diabetes was considered very mild, based on review of lab work and treatment. As noted above, the Veteran has alleged continuity of symptoms since service in the form of problems with his left leg (nerve damage). Radiculopathy and axonal polyneuropathy, are "chronic diseases" under 38 C.F.R. § 3.309(a). They are considered organic diseases of the nervous system, notably the peripheral nerves. Thus, consideration under 38 C.F.R. § 3.303(b) is warranted. Where a combination of manifestations sufficient to identify a 'chronic disease' in service, and establish chronicity at the time are present, any later manifestation of the same 'chronic disease' is subject to service connection unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Neither axonal polyneuropathy or radiculopathy were found during his active military service, despite showing the Veteran underwent rabies vaccination in service. Though the February 1970 medical history taken at separation from service, shows the Veteran reported cramps in his legs and reaction to serum, drug, or medicine; the corresponding physical examination was negative. The Veteran's lower extremity and neurological evaluations were both normal. Axonal polyneuropathy and radiculopathy were found more than one year following separation from his active duty service period, in fact more than 35 years after separation from service. 38 C.F.R. §§ 3.307, 3.309. The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran is competent to report his complaints of numbness, paresthesias, dysesthesias, and pain in the left leg and has done so repeatedly. The Veteran is not, however, competent to report whether these complaints were manifestations of a 'chronic disease.' See Jandreau, supra. As outlined above, the competent medical evidence of record concludes that axonal polyneuropathy and radiculopathy were not related to the rabies vaccination in service. Similarly, the Veteran's left leg complaints were felt to be attributable to the radiculopathy, which was a manifestation of the Veteran's non-service connected lumbar spine condition. Thus, receipt of the rabies vaccination in service has been ruled out as cause of peripheral nerve disease. The 'chronic disease' was not present to a degree capable of identifying the disease entity during service. No symptoms actually related to the rabies vaccination have been identified for continuity of symptomatology. The Board concludes that service connection is not warranted under 38 C.F.R. § 3.303(b). Service connection may also be granted when the evidence establishes a nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's left lower extremity disability (radiculopathy and axonal polyneuropathy), and his active service, despite his contentions to the contrary. In that regard, the Board finds substantially probative the September 2011 VA opinion that axonal polyneuropathy was less likely than not incurred in or caused by the rabies vaccination. The examiner further opined that the Veteran's left leg symptoms were due to radiculopathy from his well documented lumbar spine condition (which is not service-connected). The opinion was rendered after review of the Veteran's claims file, including his service treatment records, and physical examination of the Veteran; the opinions are clearly based on an accurate history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). The only evidence of record to support the Veteran's contentions is his statements and testimony. The Veteran's statements do not establish a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to a left lower extremity disability, notably neuropathy, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his left lower extremity disability because he is not qualified to offer such opinions. Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either. The Board has also considered service connection on a secondary causation basis, i.e. whether a left lower extremity disability was proximately due to, the result of, or aggravated by the service-connected diabetes mellitus. 38 C.F.R. § 3.310. As outlined above, the competent medical evidence of record (November 2010 VA examination and June 2012 VA addendum opinion) concluded that the Veteran's left lower extremity condition was less likely than not related to, caused by, or aggravated by his service-connected diabetes mellitus. Again, in the June 2012 addendum opinion, the examiner reasoned that the left leg condition was clearly documented as being a radiculopathy based on the objective evidence of lumbar spine MRI, EMG studies and confirmed by a neurologist. Diabetic peripheral neuropathy was said to be a completely different process in which glycosylation of the nerves caused the symptoms. Diabetes mellitus was also found not to cause a worsening of degenerative disc disease which in turn is responsible for radiculopathy. Aging, trauma, and degenerative process causes the progression of disc disease. The Veteran's diabetes was considered very mild. Thus, service connection is also not warranted on a secondary causation basis. Id. Finally, though not recently alleged by the Veteran, but at one point considered by the RO, the Board has also determined that the Veteran's left lower extremity disability is not a disease associated with exposure to Agent Orange. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran having served in the Republic of Vietnam during the Vietnam era, is presumed to have been exposed during such service to an herbicide agent; however, acute or subacute peripheral neuropathy did not manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during service. Thus, the presumptions are not afforded to this Veteran. 38 U.S.C.A. § 1116(f). Service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service, which has already been denied above. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left lower extremity disability, and thus, the benefit-of-the-doubt doctrine does not apply. As such, the evidence is insufficient to support a grant of service connection for any such disability of the left lower extremity. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a left lower extremity disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs