Citation Nr: 1315633 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-10 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from June 1986 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for nerve damage of the lower extremities. In January 2012, the Veteran testified before a Decision Review Officer at the RO. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. [In addition, a copy of the October 2012 transcript was sent to the Veteran in February 2013, along with a letter advising her that she had 30 days to file a motion to correct the transcript. The record reflects that to date, the Veteran has not responded to this letter.] The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the claim for service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage) must be remanded for further development. Specifically, the Veteran essentially contends that she has nerve damage to her legs that is related to a back injury in service. The Veteran testified that during active service in Korea, in late 1986 or early 1987, she fell off a deuce and a half truck and landed on her low back. She claims that after this accident she could not move her legs, went to the aid station, and was transported to a hospital. She claimed that X-rays were taken and that thereafter she was placed on an extended profile. She testified that she had swelling and nerve impairment to her legs as a result of this accident and has continued to have swelling and nerve impairment in her legs since service. In her initial claim for service connection (VA Form 21-526, Application for Compensation and/or Pension), received in March 2007, the Veteran contended that her disabilities included persistent swelling in the legs, ankles, and knees, which she reported occurred in July 1986, and that treatment began in August 1989. Service treatment records (STRs) show no report or finding of a back injury from falling off of a truck, or of nerve problems in the legs. STRs do, however, show that the Veteran complained of swelling in the lower extremities, primarily in the ankles, on numerous occasions. In early July 1986, she was seen for a one day history of swelling in both ankles, and it was noted that she had marched two miles but had no pain. The assessment was tendonitis. An orthopedic consultation was ordered, and she was put on a profile for early over use-tendonitis. Later in July 1986, she was seen for complaints of a several week history of edematous lower extremities with little pain, and the provisional diagnosis was edema of the legs and ankles. In August 1986, she was seen in the medical clinic at Fort Dix and reported that she had a history of progressive ankle swelling starting in early July and that it progress to below the knees and into the hands. The assessment was lymphedema, etiology undetermined, consider allergic, Milroy's syndrome (idiopathic). STRs further show that in August 1986 the Veteran was placed on physical profile for swelling in the extremities. In March 1987, she complained of a long history of intermittent lower leg swelling especially with increased running and physical activity. The assessment was intermittent leg swelling with normal work up in the past. In June 1990, she was again seen for complaints of swelling in the hands and feet, with outdoor strenuous activity, and the assessment was idiopathic edema, not significant. On a separation examination in June 1992, her lower extremities were clinically evaluated as normal, and, on a related report of medical history, she responded "yes" to having or having had cramps in the legs, a trick or locked knee, and foot trouble. She had swelling in both ankles and legs in the past. On a VA examination in October 1992, the Veteran reported that due to marching, walking, and jogging on PT, with her heavy boots and with a fallen arch, she started to have pain in her feet and ankles and also swelling of the ankles. This was noted to be her main problem currently. The diagnoses included pes planus, callosities on toes and plantar area, with tendonitis on both feet, mostly on the ankle Achilles tendon area, and shin splint with tenderness on palpation pretibial area. Based on the STRs and the October 1992 VA examination, the RO granted service connection for tendonitis of the left ankle and tendonitis of right ankle. See March 1993 rating action. Post-service VA treatment records show that in September 2003 the Veteran complained of chronic pain in her left lower leg. In February 2005 she complained of leg swelling since she left the military and had been on a CCB (calcium channel blocker) for the last three years, with prior swelling. "[L]eg swelling nonpitting CCB?" was assessed. In January 2006, she complained of right leg pain. In April 2006, she described continued achiness in most joints, especially with any increase in repetitive activity. It was noted that she had a history of injury to the ankle while in the military. The impression was chronic arthalgias, likely early degenerative joint disease. In August 2006, examination of her lower extremities revealed that her left knee was positive for slight localized swelling and tenderness and that she had varicose veins in the back of the leg area with slight peripheral edema noted. On VA examination in July 2007, the diagnoses were bilateral ankle tendinitis and bilateral pedal and pretibial edema, worse on the left side, which was chronic. It was noted that the Veteran had intermittent complaints of paresthesias in the left lower extremity. An NCV/EMG study of the lower extremities, dated in October 2007, revealed evidence of mild to moderate sensorimotor peripheral neuropathy, mainly axonal type. In a VA examination addendum dated in November 2007, clarification was requested as to the likely etiology of the Veteran's claimed leg pain. It was noted that there was bilateral lower extremity edema noted in service and that the Veteran had hypertension for which she took several medications (vasodilators), which would likely account for the edema along with venous insufficiency. The examiner noted that the Veteran's asymmetric lower extremity edema was chronic and currently seen on examination. Objective testing showed a mild to moderate bilateral peripheral neuropathy in the lower extremities, which the examiner opined would not likely be associated with the edema, but that these findings would likely correspond to the Veteran's complaints of pains in the legs. Finally, the examiner opined that it was less likely than not that the Veteran's current complaints of pain in the legs were related etiologically to the complaints or findings noted during service. Received from the Veteran in December 2007 was another VA Form 21-526, in which she reported having bilateral lower extremities nerve damage in July 1987, for which she was treated at Fort Dix. After reviewing the 2007 VA examination report, in light of the Veteran's statements and recent testimony, the Board concludes that such examination and opinion are inadequate with regard to her claim for service connection, and that another supplemental examination/opinion is warranted, primarily to address the Veteran's competent report of continuity of symptoms since service. The Board notes that, when VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the Veteran is competent to report that in service she fell off a truck and landed on her back and that after that incident she experienced symptoms including swelling and nerve problems which continue to this day. The Board emphasizes that lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, 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, the onset and etiology of peripheral neuropathy of the lower extremities falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, supra. Thus, this matter should be remanded for a supplemental VA examination/opinion, and the VA examiner should be advised as to the Veteran's competency to report on her back injury in service as well as the presence of symptoms in her lower extremities during and since service. Then, the examiner should provide an opinion, with rationale, as to whether the Veteran's current bilateral lower extremity peripheral neuropathy may be related to service. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter pertaining to the issue of entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage). 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the current peripheral neuropathy of her lower extremities (which she initially claimed as nerve damage). The claims folder must be made available to examiner, and the examination report should reflect the examiner's review of the claims folder and of his/her consideration of the Veteran's documented medical history and assertions. All necessary diagnostic tests and/or studies should be conducted, and all clinical findings should be noted. After reviewing the claims folder and examining the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the peripheral neuropathy of the Veteran's lower extremities had its onset in service or is causally related to her back injury in service (involving a fall from a truck and landing on her back), or whether such onset or causation is unlikely (i.e., less than a 50-50 probability). In answering this question, the examiner should be reminded of the Veteran's competency to report on a fall from a truck in service which caused her to land on her back; to report on the presence of symptoms (i.e., swelling and nerve symptoms in the legs) during and after service; and to report that her swelling and nerve symptoms have continued from service to the present. The examiner must provide supporting rationale for all opinions given. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 3. Thereafter, readjudicate the issue of entitlement to service connection for peripheral neuropathy of the lower extremities (claimed as nerve damage). If the determination remains unfavorable to the Veteran, she and her representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond. The case must then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).