Citation Nr: 1317805 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-02 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral lower extremity peripheral neuropathy, claimed as cold injury residuals. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1955 to April 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. An August 2010 Board decision denied the Veteran's claim of service connection for bilateral lower extremity peripheral neuropathy, claimed as cold injury residuals. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2011 Order, the Court granted a Joint Motion for Remand of the parties (the VA Secretary and the Veteran), vacated the Board's August 2010 decision, and remanded the case to the Board for action consistent with the terms of the Joint Motion. In March 2012, the Board remanded the case to the RO for additional development. Following that, the case was returned to the Board for further appellate consideration. In February 2013, the Board deemed that a medical expert opinion concerning the claim from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901(a) was necessary. Opinions were received in March 2013 and in April 2013 (when an addendum clarifying opinion was requested). The Veteran has been provided copies of the opinions, and in response he has submitted additional argument and evidence in April and May 2013. The Veteran's additional submissions, in the form of lay statements and VA outpatient records dated in April 2013, were not accompanied by a waiver of his right to have the RO initially consider relevant evidence in accordance with 38 C.F.R. § 20.1304. However, the lay evidence is cumulative of other lay statements indicating that the Veteran was exposed to cold weather during service in Korea and that he continued to receive treatment for a neurologic condition of the lower extremities (points not in dispute). The VA records are also cumulative as they show continuing treatment for current peripheral neuropathy in the lower extremities. As the evidence does not have a bearing on a material issue of fact in this case, namely, the remaining question of a nexus between the current disability and the cold injury in service, consideration of the evidence will not affect either way the outcome of the decision. For this reason, the additional evidence need not be referred to the RO for initial consideration under 38 C.F.R. § 20.1304. 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 Bilateral lower extremity peripheral neuropathy, claimed as cold injury residuals, was not shown to have had onset during service, and the Veteran's current bilateral lower extremity peripheral neuropathy, first shown years after service, is not shown to be related to an injury [including from cold], disease, or event in service. CONCLUSION OF LAW Service connection for bilateral lower extremity peripheral neuropathy, claimed as cold injury residuals, is not warranted. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letters dated in July 2007 and in January 2008. The Veteran was notified of the evidence needed to substantiate a claim of service connection for bilateral lower extremity peripheral neuropathy; that VA would obtain service records, VA records and records of other Federal agencies; and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the elements of a service connection claim, specifically including the effective date of an award and the degree of disability. Furthermore, under 38 U.S.C.A. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including those from VA and those identified by the Veteran such as records from Dr. Tischler. The Veteran has submitted various private treatment records, such as those from Dr. Van Houten. The Veteran's service personnel records appear to be unavailable, but the fact of the Veteran's service in Korea is not disputed. The Veteran has not identified any additional available evidence that remains outstanding. VA has provided the Veteran with an examination to assist him to substantiate his claim. 38 U.S.C.A. § 5103A(d). He was examined by VA in March 2012; however, the Board determined that the medical opinion provided then was not adequate and that the Board's review of the claim would not be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 ((2007). Therefore, in February 2013, the Board sought an additional medical opinion through the VHA from a specialist in neurology; such opinion was received in March 2013 (with addendum by the same specialist in April 2013). VA's duty to assist is met. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Notwithstanding the above, service connection may also be granted for disability first diagnosed after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue, and the record does not show, that the claimed disability was the result of participation in combat with the enemy. Thus, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file (and has also viewed Virtual VA). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each item of evidence. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence as appropriate, prior to applying the law. The Veteran's service personnel records are unavailable; it is not in dispute that he served in Korea. He submitted photographs, purportedly of him serving in Korea during the winter of 1956; the photos do not show that he was suffering from a cold injury. Nevertheless, it may be conceded that he was exposed to cold weather by virtue of his service in Korea during the winter. Service treatment records do not show objective evidence of a cold injury to the feet or lower extremities during service. A service separation examination in April 1957 shows that the Veteran's feet, skin, vascular system, and neurologic evaluation were normal. On the basis of the service treatment records, bilateral lower extremity peripheral neuropathy was not affirmatively shown to have had onset during service to establish service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service). Postservice records from December 2001 to September 2005 show treatment for non-diabetic peripheral neuropathy of the lower extremities. A private record dated in July 2005 notes the Veteran reported a 10-year history of peripheral neuropathy, which had worsened in the past eight months. VA treatment records from March 2006 to May 2008 show that the Veteran received treatment for peripheral neuropathy. As chronicity of lower extremity peripheral neuropathy in service is not adequately supported by the STRs, a showing of continuity of symptomatology after service may establish service connection. 38 C.F.R. § 3.303(b). However, there is no competent evidence since service that peripheral neuropathy of the lower extremities was noted, that is, observed during service or for many years after service discharge. By the Veteran's own report, he did not experience neurologic symptoms in his lower extremities until the mid-1990s, and medical evidence in the file does not document peripheral neuropathy in the lower extremities until 2001. Given the lack of competent evidence of related symptomatology shown in the years after service, service connection for bilateral lower extremity peripheral neuropathy based on chronicity and continuity of symptomatology after service under 38 C.F.R. § 3.303(b) is clearly not warranted. Under 38 C.F.R. § 3.303(d) service connection may still be granted, even though the disability was first diagnosed after service, if all the evidence, including that pertinent to service, shows the disability was incurred in service,. The central question presented is whether the diagnosis of bilateral lower extremity peripheral neuropathy, which was initially made decades after service, bears a causal connection or relationship to any injury, disease, or event of service. The Veteran maintains that his peripheral neuropathy can be related back to his exposure to cold while serving in Korea. The record contains medical opinions addressing the etiology of the lower extremity peripheral neuropathy. In May 2008, the Veteran's private provider, Mark Van Houten, M.D., Ph.D., stated that the Veteran's peripheral neuropathy was caused by frostbite during the Korean War. Notably, the opinion was brief, conclusory, and unaccompanied by any explanation or rationale. Also, there is no indication that the physician's opinion is based on a comprehensive review of/familiarity with the Veteran's entire record (e.g., the Veteran's active service in Korea was after, not during, the Korean War). Therefore, Dr. Van Houten's statement has little probative weight on a material issue of fact, that is, whether the Veteran's current peripheral neuropathy is related to the Veteran's period of service to include cold injury therein, especially when the statement is compared to a VHA opinion, as discussed below. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a mere conclusion statement by a private physician is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against a contrary opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion). In March 2012, the Veteran underwent a VA examination to determine the nature and likely etiology of his bilateral lower extremity peripheral neuropathy, and specifically whether it was related to his conceded exposure to cold weather in service. EMG and NCS studies were performed on both lower extremities, and according to the examiner the studies were normal and there was no evidence of a generalized sensory or motor polyneuropathy. The examiner also noted that nerve conduction studies were done twice previously in the past year (records in the file confirm one of the studies was done in January 2012) and that results were normal then too. As she found the Veteran did not have peripheral neuropathy, the examiner offered no opinions regarding etiology. This opinion likewise is accorded little probative weight as it does not reach the nexus question. It finds that the Veteran does not have his claimed disability, but the totality of the evidence in the record shows that the Veteran currently has bilateral lower extremity peripheral neuropathy, as will be explained. Following the VA examination, additional medical records were added to the file. On a January 2012 VA podiatry consult, the care provider noted the Veteran's report of having been diagnosed with peripheral neuropathy in 2000. He noted the history of treatment for peripheral neuropathy and the fact that the Veteran had a normal EMG and NCS study conducted by VA in November 2011. On neurologic evaluation, there were positive findings, and the diagnosis was peripheral neuropathy. In a private report dated in January 2012, Dr. Mark Van Houten stated that the Veteran had a longstanding disturbance in the sensibility of his toes, which had been attributed to peripheral neuropathy. He stated that electrodiagnostic studies of the legs showed a mild slowing of the tibial motor nerve conduction velocities, bilaterally, which was not seen on prior tests in 2004 and 2005. The impression was that of a clinical history of peripheral neuropathy, as supported by that day's neurologic finding on physical examination and NCV testing. In an April 2012 private report, Andrew Gerken, M.D., indicates that the Veteran was referred to him for bilateral foot pain. He notes the Veteran's report that he had had chronic neuropathy since 1998, which the Veteran believed to be related to his Korean War service. (His two-year history of non-insulin dependent diabetes was also noted.) After X-rays of the feet were taken to rule out other underlying causes for pain, the diagnosis was bilateral neuropathy, chronic. Based on conflicting findings and conclusions in the record, the Board in February 2013 sought an opinion through the VHA from a specialist in neurology in order to reconcile the discrepancies in the record. The questions posed included determining the likelihood that the Veteran currently had a diagnosis of peripheral neuropathy of the lower extremities, and if so, identifying the most likely etiology for the disability to include whether it is related to his conceded exposure to cold weather in Korea during the winter of 1956. The consulting physician reviewed the record in detail and concluded that it was more likely than not that the Veteran had a peripheral neuropathy of his lower extremities. He explained the inconsistencies in the record concerning the diagnosis, noting that a "major concept" to such understanding was that the Veteran's neuropathy was mild (and slowly progressive) and that as such may not show as abnormal on sensory testing from EMG nerve conduction studies. He also explained that EMG nerve conduction testing was an objective measure for specifically evaluating the large fibers of the peripheral nerves. While he conceded that the Veteran experienced cold injury to his feet while on active duty in Korea, he believed it was more likely that a causative relationship between the cold exposure and the Veteran's current problem did not exist. He was skeptical that the current condition would begin 40 years after cold exposure and then become progressive as the Veteran complained. Rather, he found it more likely that the etiology of the Veteran's neuropathy was his diabetes, finding that this was a "textbook case of that problem." For support, he cited to one of the Veteran's own private physicians who diagnosed diabetic neuropathy. In March 2013, because the record appeared to show that the Veteran's peripheral neuropathy pre-existed his diabetes, the Board sought an addendum opinion from the VHA consulting physician. Regarding the onset of peripheral neuropathy and diabetes, the record includes a December 2001 report after an EMG/NCS of the legs in which Panos Marmarelis, M.D., Ph.D., noted a diagnosis of mild peripheral neuropathy. In June 2004, Alexander Tischler, M.D., indicated in a record that he had been treating the Veteran for a "classic neuropathy" that had been diagnosed in the past, that the Veteran was a non-diabetic, and that the etiology of the neuropathy was undetermined. In a July 2005 record, Dr. Van Houten stated that the Veteran had a 10-year history of peripheral neuropathy that had worsened in the past 8 months. The Veteran then underwent Anodyne Therapy for treatment of non-diabetic neuropathy manifested by bilateral foot pain and paresthesias. On a December 2005 Anodyne Therapy Physician Order Form, Dr. Van Houten indicated that the Veteran had a polyneuropathy not associated with diabetes, that there was a non-diabetic loss of sensation, and that the onset of peripheral neuropathy was in 1995. Records from Paul Rosenblit, M.D., in March 2012 show that the Veteran started taking metformin HCl in July 2011. A January 2012 VA outpatient record indicates that the Veteran reported he had been diabetic for two years (diabetes with neurological manifestations appeared on a VA medical problem list at that time). In an addendum report dated in April 2013, after reviewing the records again the VHA consulting physician amended his opinion, stating that the Veteran did not have a diabetic neuropathy documented at the time he began to complain of neuropathic symptoms. He believed that the etiology of the neuropathy was more likely than not idiopathic, which was mentioned in the records and was an "extremely common" causative diagnosis, both from his clinical experience as a neurologist and from the medical literature. He set forth two main reasons for finding that it was less than 50 percent likely that cold exposure in Korea was the cause of the Veteran's neuropathy. One, he found it difficult to conceive that 40 years would elapse from the time of the cold exposure until the development of neuropathic symptoms. Two, he found the pathologic pattern of the Veteran's neuropathy made it unlikely that cold exposure led to the development of the peripheral neuropathy. He related this conclusion to data reported in medical literature. He believed the Veteran's neuropathy primarily involved small nerve fibers rather than the large myelinated (insulated) fibers, and explained why this was so given the type of symptoms experienced by the Veteran. For support, he cited to an "animal model" in which a detailed study of cold injury of peripheral nerves was conducted, wherein the "brunt" of the cold injury involved the large nerve fibers and not the small nerve fibers. The examiner found it significant that this was the reverse of the pattern experienced by the Veteran. There are no other medical opinions of record addressing the question of whether the Veteran's bilateral lower extremity peripheral neuropathy is related to service including cold exposure therein. The VHA opinion considered the significant facts presented in the record and provided a rationale that was supported in part by medical principles or a review of medical literature for statistical data to determine the likelihood that the Veteran's peripheral neuropathy was related to service. Therefore, the Board finds that it is has the most probative weight of the medical opinions in the record. In sum, the VHA examiner found that the Veteran has bilateral lower extremity peripheral neuropathy, and that the disability is idiopathic and not traceable to service, as claimed by the Veteran. The Board acknowledges the Veteran's assertions that cold injury during service in Korea led to the development of the lower extremity peripheral neuropathy. His statements, however, are not competent for the purpose of providing a material issue of fact, that is, whether his current peripheral neuropathy is related to his period of service to include cold injury therein. The Veteran is competent to state that he was exposed to cold weather during his tour of duty in Korea, but there is no evidence that a cold injury eventually resulted in his current bilateral lower extremity peripheral neuropathy. Although the Veteran is competent to describe symptoms of peripheral neuropathy, the etiology of such disability is not within the capability of lay observation; instead, it is a medical question, and competent medical evidence is required to address that matter (because the Veteran is a layperson, not qualified through education, training, and expertise to offer an opinion regarding medical causation). 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board rejects the Veteran's statements as competent evidence to establish that his bilateral lower extremity peripheral neuropathy is related to his service/exposure to cold therein. As the Veteran's statements are not competent evidence regarding the cause of his peripheral neuropathy, the Board need not reach the question of the Veteran's credibility, that is, the probative value of his statements. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether evidence may be considered, that is, admissible, while credibility is a factual determination going to the probative value or weight of the evidence to be made after the evidence has been admitted.). Thus, as shown, the preponderance of the competent medical evidence is against the claim based on a disability first diagnosed after service under 38 C.F.R. § 3.303(d). Considering all the evidence, including the lay and medical evidence, there is not an onset during service of lower extremity peripheral neuropathy under 38 C.F.R. § 3.303(a); there is not continuity of symptomatology under 38 C.F.R. § 3.303(b); and service connection based on a postservice initial diagnosis under 38 C.F.R. § 3.303(d) is not warranted. For the foregoing reasons, the preponderance of the evidence is against the claim that the Veteran has bilateral lower extremity peripheral neuropathy related to an injury, disease, or event in service. Hence, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The appeal seeking to establish service connection for bilateral lower extremity peripheral neuropathy, claimed as cold injury residuals, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs