Citation Nr: 1317662 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 10-25 455 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected L4-5 disc bulge. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from April 1990 to February 1994. The Veteran served in the Southwest Asia Theater during the Persian Gulf War. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in September 2012. FINDINGS OF FACT 1. The probative competent evidence of record shows that any current peripheral neuropathy of the lower extremities is not likely related to service or any incident therein, to include as due to ingestion of pyridostimine bromide pills and radiation exposure. 2. There is probative competent evidence of record that shows that the Veteran has lumbar radiculopathy (left leg sciatica) that is caused by the service connected low back disability. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the lower extremities was not incurred in or aggravated by active service nor may any current neuropathy be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317 (2012). 2. Left lower extremity radiculopathy is caused by service-connected L4-5 disc bulge. 38 U.S.C.A. §§ 1110, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished to the extent possible, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal, and was also afforded an opportunity for a personal hearing, but declined. The Board finds that the December 2012 VA examination was thorough and adequate upon which to base a decision on the merits of the claim. The examiner personally interviewed and examined the Veteran, elicited a medical history and provided the information necessary to render a fair and impartial decision on the merits of the claim. Additionally, the appeal was remanded for additional development of the record in September 2012. The remand directives included obtaining all outstanding VA treatment records from 2007 to the present, and for a VA examination to determine whether the Veteran's bilateral peripheral neuropathy is due to service or service-connected disability. In this case, the AMC associated all VA treatment records from 2007 to 2012 with the virtual VA record keeping system, and the Veteran was examined by VA in December 2012, in compliance with the remand directives. In light of the foregoing, the Board finds that the agency of AMC has substantially complied with the September 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (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). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Where a Veteran served 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 of 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). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Factual Background The Veteran contends that his bilateral peripheral neuropathy of the lower extremities was due to exposure to Pyridostigmine Bromide (PB) pills or, in the alternative, to radiation exposure. Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the claims file, including the Veteran's statements and the VA and private medical reports of record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all 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 claim. 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). Regarding the Veteran's contentions, while he is competent to describe the symptoms he has experienced and he is credible in this regard, the etiology of any current bilateral lower extremity disorder may not be diagnosed via lay observation alone, and he is not shown to have the expertise to provide an opinion concerning the complex medical question of the nature or etiology of the claimed disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, whether the Veteran's peripheral neuropathy is due to service or service-connected disability, this question 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) (providing that lay persons are not competent to diagnose cancer). The Veteran's STRs showed that the Veteran was treated for chronic low back problems with radiating pain into the left leg on numerous occasions in service beginning July 1991. Parenthetically, service connection was established for bulging disc at L4-5 with intermittent pain by the RO in February 1997, and is currently evaluated as 20 percent disabling. However, the STRs are completely silent for any complaints, treatment, abnormalities or diagnosis of peripheral neuropathy (PN) in service. On a Report of Medical History in December 1993, the Veteran specifically denied any lameness, foot trouble or neuritis, and no pertinent abnormalities of the feet or lower extremities were noted on examination at that time. When examined by VA in January 1997, in connection with his original claim of service connection for a low back disability, the Veteran complained of intermittent low back pain, but denied any numbness, tingling or radiation of pain into his lower extremities. Sensation was normal to light touch, pain, pin prick, and vibratory sense. The impression included intermittent low back pain and bulging of the L4-5 disc. On his application for VA benefits, received in October 2007, the Veteran reported that he first noticed numbness and a tingling sensation in his feet in 2002, and that his symptoms had gradually worsened over the years. VA medical records showed that the Veteran was treated for various maladies, including low back pain and neurological symptoms in both lower extremities since 2007. When examined by VA in January 2008, the Veteran complained of weakness in his legs and chronic numbness and tingling in his feet. The Veteran reported that he was told that he had poor circulation in his legs and was diagnosed with peripheral neuropathy of uncertain etiology. On examination, the Veteran had loss of sensation in a stocking distribution from the toes to the ankles, bilaterally. The examiner indicated, however, that no specific nerve root could be identified because it involved multiple nerve roots. The impression included peripheral neuropathy of undetermined etiology. The examiner opined that it was less likely than not that the Veteran's bilateral peripheral neuropathy was related to his back disability. Private medical records showed that the Veteran was seen for low back pain with intermittent numbness and tingling in both feet in December 2006 and July 2007. A letter from the treating physician, Dr. M.S., dated in October 2011, indicated that the Veteran's clinical and electrodiagnostic findings were indicative of peripheral neuropathy (PN) involving the lower extremities, distally. The physician stated that the etiology of the Veteran's bilateral PN was unknown, but that given his reported history, the "possibility" of a toxic-metabolic cause was strongly suggested. The physician indicated that other metabolic causes had already been investigated and ruled out. In September 2012, the Board remanded the appeal for a VA examination to determine whether the Veteran's symptoms were related to service from either PB ingestion, radiation exposure, as a manifestation of an undiagnosed illness, or secondary to his service-connected low back disability. When examined by VA in December 2012, the examiner indicated that the Veteran's claims file and Virtual VA medical records were reviewed, and included a detailed description of the Veteran's complaints, medical history and the clinical and diagnostic findings on examination. On examination, deep tendon reflexes were absent in the knees and ankles, and light touch and vibratory sensation was decreased below the knees and absent below the ankles, bilaterally. The examiner indicated that the sensory abnormalities were attributable to PN. There was no muscle atrophy or gross motor weakness and the Veteran could stand on his toes and heels, and either foot. The examiner indicated that there was radicular pain involving the L-4 through S-3 nerve roots (sciatic nerve) in the left lower extremity, but not on the right side. X-ray studies revealed moderate L3-4 and mild to moderate L4-5 degenerative disc disease with facet arthropathy at the L4 through S1 levels and partial sacralization of L5. The examiner also noted that a VA nerve conduction velocity (NCV) study in June 2009 confirmed the presence of a severe polyneuropathy affecting both lower extremities. The examiner noted that there was documented evidence of radicular symptoms in the left leg associated with the Veteran's low back disability in service and at present, aggravated by movement and position, which was consistent with mild left L5 radiculopathy due to degenerative disc disease of the lumbar spine. However, based on NCV studies and the Veteran's clinical history, the examiner opined that the primary diagnosis in this case was bilateral peripheral neuropathy of undetermined etiology. The examiner pointed out that lumbar radiculopathy and PN are pathophysiologically unrelated and distinct conditions, and that while there may be, as in this case, some overlap in signs and symptoms between the two conditions, the underlying pathophysiology of one condition does not predispose to the pathophysiology of the other. Therefore, the examiner opined that the peripheral neuropathy was less likely as not proximately due to or aggravated by the lumbar disc disease. The examiner maintained that the peripheral neuropathy and the radiculopathy are co-existing conditions. He went on to explain that his use of the qualifier, "undetermined etiology" was based on the fact that medical evaluations to date were unable to identify a toxic, metabolic, infectious or genetic cause of the Veteran's PN. He noted that of peripheral neuropathies in general, one third are idiopathic - meaning that the specific etiology cannot be identified, one third are due to diabetes, and one third are due to other metabolic, heritable, infections or toxic etiologies. Parenthetically, the Board notes that while the Veteran reported a strong family history of diabetes to his private physician in July 2007, he is not shown to have diabetes at present. In response to specific questions in the September 2012 remand, the examiner opined that the Veteran's PN was more likely a "diagnosable chronic multisymptom illness with a partially explained etiology." Whereas the specific etiology of the Veteran's PN had not been identified, the pathophysiology of PN, in general, is well understood, in that a multiple number of possible metabolic, infectious, genetic and toxic etiologies result in permanent damage to the myelin sheath of the peripheral nerves, resulting in decreased nerve transmission. He opined, therefore, that the Veteran's condition could not be characterized as a "diagnosable but medically unexplained chronic multisymptom illness of unknown etiology" for which the pathophysiology is not otherwise understood. The examiner also referred to recent reports by the Institute of Medicine (IOM) in which it found that several well designed studies in the United States, United Kingdom and Australia found no evidence of excess PN in Gulf War veterans, and that several other secondary studies supported that conclusion of no excessive risk. The examiner acknowledged that while some studies did report higher rates of PN, those studies were based on self-reported symptomatology, which the committee did not find to be a reliable measure of PN. He noted that the committee found no increase in the prevalence of PN in deployed versus nondeployed veterans, as defined by history, physical examination, and electrophysiological studies. Detailed quantitative analyses to investigate small-fiber polyneuropathy have not, as yet, been reported in Gulf War veterans. Therefore, the committee concluded that there was "limited/suggestive evidence of no association between deployment to the Gulf War and peripheral neuropathy." The VA examiner ultimately concluded based on review of the IOM's most recent report on the subject that it was less likely as not that the Veteran's peripheral neuropathy was due to any specific environmental exposure in the Gulf War. The VA examiner also referenced Dr. M.S.'s October 2011 letter. The VA examiner also noted that diagnostic testing revealed that the Veteran's B12 level was low suggesting a possible contribution of B12 deficiency to the condition of peripheral neuropathy. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the Board finds the December 2012 VA opinion persuasive, as it was based on a thorough examination of the Veteran and included detailed discussions of all relevant facts and medical research references. The examiner offered a rational and plausible explanation for concluding that the Veteran's PN was not likely due to the Veteran's service in the Persian Gulf and was not proximately due to or aggravated by his service-connected low back disability. The examiner's opinion was based on consideration of the Veteran's entire medical history, the clinical picture of peripheral neuropathy, and sound medical principles (IOM research findings). For these reasons, the Board places great evidentiary weight on the opinion. In contrast, the Board does not find the favorable private medical opinion from Dr. M.S. persuasive. Dr. M.S. essentially provided an opinion couched in speculative and general terms. Dr. M.S.'s entire explanation or analysis for concluding that the Veteran's peripheral neuropathy is possibly due to "toxic-metabolic causes" is based on "given [the Veteran's] history" and that "other metabolic causes ha[ve] already been investigated and ruled out." Dr. M.S. indicated that "other metabolic causes" were ruled out but yet found that the disorder was possibly due to "toxic-metabolic causes." This is not a clear statement. The referenced "history" was also not defined. The Board would have to presume Dr. M.S. is referring to the Veteran's service in the Persian Gulf as opposed to some other history. Dr. M.S.'s opinion is not a definitive statement linking the Veteran's peripheral neuropathy to service in the Persian Gulf. Also, the Board recognizes that the submitted Internet Article (Acetylcholinesterase Inhibitors and Gulf War Illnesses) describes "excess illness" and "chronic symptoms" in Persian Gulf War Veterans from exposure to inhibitors including PB pills but does not specifically reference peripheral neuropathy. Thus, this treatise evidence does not specifically address the Veteran's situation or provide a basis for a medical opinion of record. For these reasons, the Board finds Dr. M.S.'s opinion and the treatise evidence less probative than the December 2012 VA opinion. Accordingly, the Board finds that the preponderance of the probative competent evidence weighs against a favorable disposition of the Veteran's claim of service connection for bilateral lower extremity PN. However, the Board notes that the Veteran does have left leg sciatica, which a VA physician opined was consistent with radiculopathy due to service connected degenerative disc disease of the lumbar spine. While the VA examiner indicated that there was some overlap of symptoms associated with the Veteran's radiculopathy and his PN, he opined that the two disorders were pathophysiologically distinct. Based on the VA medical opinion, the Board finds that service connection for radiculopathy of the left lower extremity, secondary to the service-connected low back disability is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for peripheral neuropathy of the lower extremities is denied. Service connection for left lower extremity radiculopathy secondary to service-connected L5-S1 disc bulge is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs