Citation Nr: 1314018 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-37 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for peripheral neuropathy (PN). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from June 1954 to June 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, the Veteran and his wife testified before a Decision Review Officer at the RO. They also testified at a video-conference hearing before the undersigned Veterans Law Judge in October 2012. Transcripts of both hearings are associated with the claims file. In December 2012, the Board remanded the case for further development. It now returns for further appellate review. The Board notes that the issue of entitlement to service connection for bilateral hearing loss, which was remanded by the Board in December 2012, was granted by the Appeals Management Center in March 2013. Accordingly, as that issue has been granted in full and is therefore no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In an April 2013 Informal Hearing Presentation, the Veteran's representative asserted that the Veteran had filed a claim for left shoulder arthritis in January 1959 and that this claim remained unadjudicated. The claims file contains two documents dated in January 1959. The first is a request from a VA hospital inquiring as to the Veteran's status for treatment purposes, and the second is a record of hospitalization diagnosing instability and arthritis of the left sternoclavicular joint. The Board finds no document provided by the Veteran during this timeframe that can be construed as a claim for service connection. Thus, referral is not warranted. If the Veteran wishes to file a claim for service connection for left shoulder arthritis, he should do so with specificity at the RO. The issue of entitlement to service connection for ankylosing spondylitis/Marie Strumpell disease was raised in the April 2013 Informal Hearing Presentation, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence shows that the Veteran's peripheral neuropathy was not present in service or until many years thereafter and is not related to service. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board finds that VA has satisfied its duty to notify under the VCAA. A March 2008 letter provided notice, before the initial unfavorable decision in July 2008, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA treatment records, private treatment records, and a VA examination report. Further, pursuant to the December 2012 remand directive, the RO obtained current treatment records from the Memphis VA Medical Center (VAMC). Regrettably, in March 2002 the National Personnel Records Center indicated that the Veteran's STRs and service administrative personnel records were damaged in the July 12, 1973 fire in St. Louis, Missouri, and were therefore partially unavailable. The originals STRs were "moldy or brittle and cannot be mailed." Copies of all available STRs were provided. The Veteran has not identified any additional outstanding records that have not been requested or obtained. Also pursuant to the December 2012 remand, the Veteran was afforded a VA examination in January 2013 with respect to the issue decided herein. The Board finds that such VA examination and accompanying opinion are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record; and physical examination with extensive testing. The opinion considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided adequate rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Board notes that, pursuant to the December 2012 remand directives, the RO provided a VA examination and additional VA treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ specifically identified the element of nexus that was lacking in the Veteran's service connection claim for PN. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Specifically, she asked him to identify any doctors or facilities that had treated him for his PN whose records had not been submitted, and asked whether any doctor had ever stated that the PN was related to service. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim for service connection. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the VLJ hearing. The hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that there is no prejudice to the Veteran in deciding this case. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument and presenting for a VA examination. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran seeks service connection for PN, contending that his current PN is due to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board has reviewed all the evidence in the record. 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 the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); see also Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record shows that the Veteran has a current disability of PN in both lower extremities. Lay statements, testimony, and reports to physicians consistently show an onset of numbness in the lower extremities in 1999. The 2013 VA examiner diagnosed PN of the bilateral lower extremities with a diagnosis date of 1999. The claims file contains numerous diagnoses and continued treatment of PN of the lower extremities from 2002 through November 2012. The Board finds that the Veteran has a current disability of PN of the bilateral lower extremities, with an onset in 1999. The Veteran's STRs are negative for a diagnosis of PN. They show that during active service he underwent treatment and extensive hospitalization for a variety of issues relating to his lower extremities, including foot surgery, rheumatoid arthritis, recurrent arthritis, Marie Strumpell disease, synovitis, chronic pain, and tenosynovitis. He was also treated for spinal, knee, and ankle conditions and received diagnoses for various chronic joint disorders. However, there are no reports of numbness, paresthesias, or dysesthesias until 1999, roughly 42 years after the Veteran separated from service. The Veteran contends that his current PN of the lower extremities is related to the diagnoses and treatment he received during active service. Statements by the Veteran and his representative state that his PN is attributed at various times to rheumatoid arthritis, ankylosing spondylitis/Marie Strumpell disease, and as a result of medical treatment he underwent during service. The Veteran also submitted a letter from his treating neurologist at Memphis VAMC, dated November 2012, into evidence. She stated that a thorough review of his medical records shows that the Veteran has multiple possible etiologies for PN. However, in addition to symptom onset and duration, it seems most likely to have been initiated during a hospitalization in Augsberg, Germany for an acute exacerbation of rheumatoid arthritis that lasted for an entire year. He was hospitalized from May 1956 - May 1957 without the adequate physical therapy necessary to stop long term hospitalized patients from developing peripheral neuropathy. I believe this aforementioned hospitalization is the most likely etiology for [the Veteran's] peripheral neuropathy. It is unclear what records the physician reviewed in rendering that opinion. Although the Veteran did have extensive treatment during service, he was not continuously hospitalized from May 1956 to May 1957. There were breaks in hospitalization and on several occasions he was afforded a one month period of leave. The records reflect that he was afforded some physical therapy in 1957 and that at one point he was discharged to duty on January 21, 1957. Thus, the opinion above appears to have been rendered on facts which are not entirely consistent with the record. Additionally, the physician did not address the normal neurological evaluation on separation examination and the length of time until PN was shown following service. While the Veteran asserted in his substantive appeal that the pain he had during active service has never ceased and now both legs are numb from the knee down, a September 2002 VA treatment report noted complaints of lower extremity numbness and burning of only three years' duration. Consequently, the Board finds that the treating neurologist's opinion is of minimal, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). The January 2013 VA examiner conducted a thorough review of the claims file and extensive testing of the Veteran's peripheral nerves. She opined that the Veteran's peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service illness. She provided a detailed rationale for her opinion, stating This veteran seems to most likely have been diagnosed with ankylosing spondylitis (Marie Strumpell disease) while in the military. The term "rheumatoid arthritis" is used a number of times in his STR notes, but because he presented with a right ankle tendonitis and then developed a right knee arthritis, it does not seem consistent with what [I know] as current findings of rheumatoid arthritis where small, symmetric joints are most often involved. . . . [I]t seems likely that physicians were interchangeably using the terms rheumatoid arthritis and ankylosing spondylitis/Marie Strumpell disease. Both of these conditions are inherited auto-immune disorders of unknown etiology. Both of them can cause peripheral neuropathy secondary to the auto-immune inflammatory process involving the nerves. (emphasis in original). The opinion elucidates how the medical findings in the STRs more closely resemble ankylosis spondylitis rather than rheumatoid arthritis. After summarizing several specific findings in the claims file, the VA examiner concludes that, based on her review of the entire record, [I feel] his peripheral neuropathy is secondary to an auto-immune disease - most likely ankylosing spondylitis and not rheumatoid arthritis. . . . STR[s] make no mention of this Veteran having any peripheral neuropathy while in the military. This neuropathy did not seem to develop until about 1999. So, his peripheral neuropathy was not incurred in or directly caused by his military service or his medical treatment during his military service. The Board finds that this opinion is highly probative. It considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, it is supported by the September 2012 VA treatment record which notes, "peripheral neuropathy likely caused by auto-immune disorder per rheumatology." The Board finds that this opinion outweighs that of the treating neurologist, as the latter opinion is based on unclear sources and appears to have been rendered on facts which are not entirely consistent with the record. The Veteran has contended on his own behalf that his peripheral neuropathy is related to his military service. Lay evidence may be competent to establish medical etiology or nexus. Davidson, supra. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's peripheral neuropathy and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg, the claimant is not competent to provide evidence as to more complex medical questions). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, peripheral neuropathy falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not possess the medical knowledge to attribute his peripheral neuropathy to any specific instance of his military service. Here, while the Veteran is competent to describe his peripheral neuropathy symptoms, the Board accords his statements regarding the etiology of the claimed disorder little probative value as he is not competent to opine on such a complex medical question. In contrast, the VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's history, current medical condition, and other causes for his symptomatology. Therefore, the Board accords greater probative weight to the 2013 VA examiner's opinion. To the extent the Veteran is arguing for service connection for PN as secondary to rheumatoid arthritis or ankylosing spondylitis, secondary service connection is only warranted when a disability is proximately due to or the result of an adjudicated service-connected disease or injury. See 38 C.F.R. § 3.310. Service connection has not been established for the diseases cited as possible etiologies of the peripheral neuropathy, including rheumatoid arthritis and ankylosing spondylitis/Marie Strumpell disease. Therefore service connection cannot be granted based on the theory of secondary service connection at this time. In summary, peripheral neuropathy was not shown in service or for decades thereafter, and the most probative evidence indicates the Veteran's peripheral neuropathy is not related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection for peripheral neuropathy is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for peripheral neuropathy is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs