Citation Nr: 1320149	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  06-30 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and alcohol dependence.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to August 1971; he also served in the Republic of Vietnam.  

This matter initially came before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  In that decision, the RO denied entitlement to service connection for a bilateral foot disability.  

The Veteran testified before the undersigned at a December 2007 hearing.  A transcript of that hearing has been associated with the file and reviewed.  

In February 2008, November 2010, October 2011, and October 2012 the Board remanded this matter for further development.  In March 2013, the Board sought a Veteran's Health Administration (VHA) opinion.  


FINDING OF FACT

The Veteran has a current bilateral foot disability, diagnosed as small fiber neuropathy, which is due to service-connected PTSD and alcohol dependence.  


CONCLUSION OF LAW

The criteria for service connection for small fiber neuropathy of the feet have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013).  



REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

In this decision, the Board grants entitlement to service connection for small fiber neuropathy of the feet.  As this represents a complete grant of the benefits sought on appeal, no further assistance pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 West 2002 & Supp. 2013), is necessary to aid the Veteran in substantiating the claim.  

Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  

Establishing service connection generally requires evidence of (1) a current disability; (2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a).  "A foot disability" or small fiber peripheral neuropathy are not listed.  In Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit held that § 3.303(b) applies only to listed chronic diseases.  

If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e).  The enumerated diseases include acute and sub acute peripheral neuropathy, but the regulation also states they must be manifested within a year of the last exposure to an herbicide agent during service.  38 C.F.R. § 3.307(6)(ii).  A rule has been proposed to change this regulation from "acute and sub acute peripheral neuropathy" to "early-onset peripheral neuropathy" based on new findings by the National Academy of Sciences, but is not currently in effect.  See 77 Fed. Reg. 47795 (August 10, 2012).  

In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  § 3.310(a).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See, 38 U.S.C.A. § 5107(b) (West 2002).  It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case.  38 C.F.R. § 3.102 (2013).  

The Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In determining whether evidence is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  

Background

The Veteran testified at the December 2007 Board hearing that his feet started hurting right after basic training.  (Transcript, p. 7)  He felt as if he had broken toes and that his feet were swollen in the morning, but they were not.  Id.  He also had foot pain that radiated up his legs.  Id.  He believed that his problems were caused by marching and jumping in service.  (Transcript, p. 8)  His foot problems continued since service.  (Transcript, p. 15)  

Although the Veteran has at times reported having burning foot symptoms for 40 years (since service); he reported having no foot trouble on his separation report of medical history and did not report symptoms on claims for VA benefits in 1971 and May 1982.  

Private records detailing the Veteran's treatment in 1987, 1989, 1995 and 1999 show he reported vague musculoskeletal complaints including right side paresthesias and somatic symptoms that were hard to characterize.  Many records document long-term alcohol use.  (See, for example, May 2005 VA psychology record.)  

The Veteran has at other times stated that his feet started "burning" 20 to 40 years ago (see February 2008 VA record and April 2008 VA rheumatology record).  Treatment records document complaints of throbbing or stinging in the feet beginning in approximately 2004 (see November 2004 VA examination report).  That this symptom might be peripheral neuropathy was not investigated until 2008 (see February 2008 VA record).  

A May 2008 VA neurology record noted that the Veteran said his problems started 40 years ago at boot camp.  He denied alcohol use.  He said he had burning and stabbing foot pain.  Over the years, the pain had worsened but remained the same in quality.  The neurologist said the Veteran's reports were atypical for neuropathy.  There were intact ankle jerks.  He had severely impaired joint position sense, but his Rhomberg sign was steady.  His ankle jerks were easy to elicit despite stocking sensory loss.  Nerve conduction studies (NCS) did not find peripheral neuropathy; but small fiber peripheral neuropathy was not ruled out by the study, because such neuropathy did not cause much decreased sensation.  

An August 2008 VA neurology record noted the Veteran refused a bone scan and peripheral neuropathy medications.  The neurologist stated the examination was consistent with a peripheral neuropathy without any muscle weakness or other abnormalities.  The etiology of the peripheral neuropathy was unclear and the Veteran refused further studies.  He also left before being seen by the attending neurologist.  

A VA treatment record shows that in January 2012, a neurology resident noted a work-up for peripheral neuropathy, normal laboratory findings, normal rheumatology findings, and that the Veteran refused follow up treatment.  The resident stated: 

The exam today is not entirely consistent with a small fiber polyneuropathy given that he reports decreased sensation in his ankles relative to more distal structures.  The etiology of the neuropathy is unclear at this point.  

The addendum, written by a senior neurologist stated there was no convincing evidence for neuropathy, but the Veteran's "subjective symptoms" were "more likely than not unrelated to neuropathy."  The case had been discussed at length with a resident.  

At an October 2012 VA examination, the examiner concluded the Veteran did not have a detectable neuropathy by electrodiagnostic testing or any metabolic conditions that could be an underlying cause of neuropathy.  It was "possible" that he had a small fiber neuropathy not detectable by electromyography (EMG)/NCS, although a biopsy was not performed.  The examiner went on to state that it was "conceivable" the symptoms were related to small fiber neuropathy, although its presence was not demonstrated.  He could not say without resorting to speculation whether it was at least as likely as not that the Veteran had a neurological disability.  

In March 2013, the Board sought a VHA opinion.

The VHA opinion was provided in May 2013.  The chart was reviewed.  The examiner stated it was "more than likely" that the Veteran's complaints about having paresthesias in the feet "could be very well secondary" to peripheral neuropathy given the historical data.  The examiner noted the Veteran reported ongoing symptoms for the past 20 to 40 years and reiterated that small fiber neuropathy was less likely to show up as an abnormality on routine EMG/NCV testing.  There were more specialized tests that would be helpful.  

With regard to the etiology of the of the disability, the examiner went on to state that alcohol was a well-known cause of peripheral neuropathy; but other causes needed to be explored that were not mentioned in review of the Veteran's file.  The examiner noted that other testing was offered to the Veteran but was refused.  As for the issue of aggravation, the examiner stated that alcohol could lead to, or worsen, underlying peripheral neuropathy.  

Analysis

Although there are conflicting opinions as to whether the Veteran has a current disability, the January 2012 VA record and May 2013 VHA opinion, weigh in favor of a finding that the Veteran has small fiber peripheral neuropathy.  Shedden, 381 F.3d at 1167.  The Veteran also has an in-service disease or injury in the form of the service connected PTSD with alcohol dependence.

The remaining question is whether the current foot disability is related to service connected PTSD or alcohol dependence or directly to service.

The only evidence of direct service connection consists of the Veteran's testimony as to a continuity of symptomatology beginning in service.  Continuity of symptomatology can only establish a link between a current disability and service where the claimed disability is a chronic disease listed in 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. § 3.309.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  There is no evidence that the Veteran has a chronic disease of the feet.

Despite attempts by VA to determine its cause, the etiology of the small fiber peripheral neuropathy is not completely clear.  The May 2013 VHA opinion is somewhat confusing, but does support the theory that alcoholism caused small fiber neuropathy; and includes a rationale that would support finding that alcohol caused small fiber neuropathy in the Veteran's case.  The VHA medical expert did go on to speculate that there could be other causes for the Veteran's disability, no reasons were provided as to why these other causes were more likely than service connected alcohol abuse.

Resolving doubt in the Veteran's favor, the Board finds that small fiber peripheral neuropathy was caused by service-connected PTSD and related alcohol abuse.  38 C.F.R. § 3.310(a).  Service connection for a disease or disability caused by alcohol abuse is permissible in the circumstance where alcoholism was caused by service connected PTSD, and the alcoholism caused or aggravated another disability.  See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (PTSD could have aggravated alcoholism where the alcoholism led to hepatic cirrhosis and death).  

As the benefit of the doubt rule is for application, small fiber neuropathy of the feet is related to service-connected PTSD; service connection is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310.  


ORDER

Service connection for small fiber neuropathy of the feet is granted.  


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs