Citation Nr: 1322542	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  07-22 628	)	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 upper and lower extremities to include as secondary to residuals of fracture of L-1 and T-12.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Hinton, Counsel








INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).

The Veteran, who is the appellant, served on active duty from August 1956 to June 1959.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In December 2010, in June 2012, and in January 2013, the Board remanded the case for further development.  As the development has been completed, no further action to ensure compliance the Board's remands is needed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In a decision in January 2013, the Board denied the claim of service connection for a cervical spine disability. 


FINDING OF FACT

Peripheral neuropathy of the upper and lower extremities was not affirmatively shown to have had onset during service; a peripheral neuropathy was not manifested to a compensable degree within one year from the date of separation from service; and  peripheral neuropathy of the upper and lower extremities first shown after service beyond the one year presumptive period for organic diseases of the nervous system, is unrelated to an injury, disease, or event, in service; and peripheral neuropathy is not caused by or permanently made worse by service-connected residuals of fracture of L-1 and T-12. 



CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy of the upper and lower extremities have not been met.  38 U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 


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. 

Duty to Notify

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. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).
 








The RO provided pre-adjudication VCAA notice by a letter dated in May 2006.  As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained the service treatment records, VA records, and private medical records.  

The Veteran was afforded VA examinations in May 2007, January 2011, July 2012, and March 2013.  As the examination reports and the medical opinions are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports and the medical opinions are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).in 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 




REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military 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 coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation 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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  

Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For a veteran who served 90 days or more of continuous, active service, and a chronic disease, such as peripheral neuropathy as an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309.



Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a).
Evidentiary Standards

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 served in peacetime and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. 

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C.A. § 5107(b). 

Facts

The service treatment records show that in October 1956 the Veteran fell from a height of ten foot from a telephone pole and landed on his feet.  On hospitalization, there were no neurological symptoms of numbness or tingling in the lower extremities.  The knee and ankle reflexes were normal.  



There were no sensory changes in the lower extremities.  X-rays of the spine showed a compression fracture of the 12th thoracic and 1st lumbar vertebra.  During the hospitalization, the Veteran was placed on bed rest he was in a body case for one week.  By November 1956, the back pain was almost gone, and he was discharged from the hospital.  The diagnosis was compression fracture of T-12 and L-1.  In January 1957 the Veteran was admitted for follow-up care and he was  hospitalized until March 1957.  

In May 1957, the Veteran fell from a parked fire engine and landing on his back and hitting his head without loss of consciousness.  Examination of the central nervous system showed no paresthesia or malfunction of consciousness.  The Veteran was able to move all extremities with no limitations.  The cranial nerves were intact.  An X-ray of the thoracic spine was negative.  The diagnosis was scalp laceration, muscle sprain in the right scapular region and no artery or nerve involvement.

In June 1957, the Veteran was hospitalized for low back pain.  In neurological evaluation there was atrophy or weakness, sensation was intact, and reflexes were physiological.  The straight leg raising was negative.  X-rays showed that the compression fracture was healed.

The service treatment records contain no complaint, finding, or history of peripheral neuropathy of the upper and lower extremities.  On separation examination, the clinical evaluation of the r upper extremities was marked as abnormal with notation that there was no deformity or limitation of motion of the spine. The evaluation of lower extremities and the spine was normal.

After service on VA examination in October 1959, the Veteran complained low back pain with lifting.  On examination, the VA examiner found no evidence of back pathology.  The neurologic evaluation was normal.  





VA records in January 1999 show that the Veteran fell and fractured his right hip, which required internal fixation. 

In November 2005, private medical records show that the Veteran had a MRI for a history of low back pain.  The findings were a disc bulging at L2-L3, bilateral L4 foraminal encroachment, right and left foraminal stenosis, borderline L4-L5 spinal stenosis, no visible focal disc herniation, L3 and L4 vertebral body hemangiomas.  .

VA records show that in January 2007 the Veteran complained back pain that radiated to the left lower extremity.  There was reference to degenerative disc disease at L4-L5, possible compression at L5 root, a laminectomy of L5, and facet fusion of L5-S1.  The assessment included cervical stenosis with myelopathy.

In April 2007, on VA examination, the Veteran complained of bilateral foot numbness, tingling and a burning sensation since 2005.  The VA examiner noted that the Veteran was not diabetic, but apparently the Veteran had peripheral neuropathy in the lower extremities.  The diagnosis was peripheral neuropathy of the lower extremities.  

In May 2007 on VA examination, the VA examiner noted the Veteran's history of back injury during service.  The Veteran complained of mechanical low back pain with radiating pain to the left lower extremity.  On neurological examination, sensation was intact to light touch for the dermatomes of the upper and lower extremities.  Motor strength was 5/5 for the upper and lower extremities.  The reflexes were physiologic and symmetrical, except for left ankle reflex, which was absent.  

In January 2011 on VA examination, after a review of the Veteran's file, the VA examiner expressed the opinion that the compression fracture did not cause or aggravate the neuropathy of the upper and lower extremities.




On VA examination in July 2012, the VA examiner stated that paresthesia,  dysesthesia, and numbness in the upper extremities were associated with intervertebral disc syndrome of the cervical spine.  The VA examiner stated that it was less likely as not that the current cervical spine disability was due to the compression fracture of T12 and L1.  The VA examiner explained that the  compression fracture was healed without residual disability in 1959 and there was no indication there was any damage to the cervical spine.  Further, there was no medical study showing a relationship between cervical disc disease and lumbar injuries or fractures.  The first documentation of cervical degenerative disc disease or degenerative joint disease was by MRI in 2000, 44 years after the injury in service.  The diagnosis was carpal tunnel syndrome, bilateral.  

As for the lower extremities, the VA examiner expressed the opinion that it was less likely as not that the lower extremity polyneuropathy diagnosed in 2005 by EMG/NCV studies was aggravated by the service-connected residuals of the compression fracture of T12 and L1.  The VA examiner explained that the lower extremity polyneuropathy was idiopathic by EMG/NCV in 2005, 49 years after the injury in service and there were many years of active employment as a truck driver without any documentation of lower extremity neuropathy.  

In March 2013 on VA examination, the VA examiner expressed the opinion that it was 
less likely than not that the polyneuropathy of the upper extremities, including carpal tunnel syndrome, was caused by or aggravated by the service-connected residuals of a compression fracture of T-12 and L-1.  

The VA examiner explained that the service treatment records showed no nerve involvement with the injury sustained in the fall and the evaluation by the neurosurgical service found no evidence of nerve involvement. 




Analysis 

Service connection has been granted for residuals of fracture of L-1 and T-12.  Service connection for a cervical spine disability has been denied.  And service connection has not been established for any other disability of the lumbar spine other than the residuals of fracture of L-1 and T-12.  

To extent that peripheral neuropathy of either the upper or lower extremities is caused by or aggravated by the disability of the cervical spine or disability of the lumbar spine other than the service-connected residuals of fracture of L-1 and T-12, service connection is not warranted on a secondary basis theory of service connection.  38 C.F.R. § 3.310(a).  

The Veteran is competent to describe his injury in service, which is within the realm of the Veteran's personal experience, and his statements are consistent with the service treatment records.  38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses).  

The injury in service answers the question of what happened, but does not answer the questions of whether there is a relationship or nexus between any current peripheral neuropathy of the upper or lower extremities to injury in service.  Competent and credible evidence is still required to establish a nexus to an injury or disease in service.  

Peripheral neuropathy of the upper or lower extremities was not affirmatively shown to have had onset in service and service connection under 38 C.F.R. § 3.303(a) is not established.  


Peripheral neuropathy as an organic disease of the nervous system is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology, need to be addressed, but as peripheral neuropathy was not noted in service, and as a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection, creating a presumption of service connection for a chronic disease manifesting during service and then again at any later date, is available only for a chronic disease enumerated in 38 C.F.R. § 3.309(a), the only regulation listing named chronic diseases.).

The Veteran asserts that his currently diagnosed polyneuropathy of the upper extremities, including carpal tunnel syndrome, and polyneuropathy of the lower extremities were caused by service or proximately due to or aggravated by his service-connected disability.  

The Veteran is competent to describe peripheral neuropathy symptoms that are capable of lay observation.  And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The question is whether the Veteran as layperson is competent to diagnose peripheral neuropathy or to offer an opinion on a causal relationship between peripheral neuropathy and service or a service-connected disability, that is, the "nexus" requirement for entitlement to service connection.  





Whether the current polyneuropathy of the upper extremities including carpal tunnel syndrome, and the polyneuropathy of the lower extremities, were present in service, or whether these disabilities were caused by an injury or event in service, or whether any current neuropathy is proximately due to, the result of, or was increased in severity due to a service-connected disability, are not questions that can be competently answered by the Veteran as a lay person based on mere personal observation.  

This is because the disability falls outside the realm of common knowledge of a lay person, that is, this question is not capable of lay observation without specialized education, training, or experience.  And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to diagnose or to render an opinion on the etiology of claimed neuropathies. 

If as here, there is a question of the diagnosis, which is not capable of lay observation, including by case law, then to the extent the Veteran's lay testimony is offered as proof of the presence of the claimed disability or on causation, the Veteran's lay testimony is not competent evidence and the Veteran's lay testimony is not admissible as evidence.  Explicitly, the Veteran's lay testimony is not to be considered as competent evidence that the claimed peripheral neuropathy of all four extremities was present in service or was caused by any incident in service, or was caused or aggravated by service-connected residuals, fracture of L-1 and T-12. 

Although the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  No medical professional has diagnosed  neuropathy before 2005, about 45 years after service separation in 1959 and no medical professional has provided an opinion linking peripheral neuropathy to service or to the service-connected disability.  
 



Because peripheral neuropathy was not shown within one year of discharge from service, presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309(a) does not apply.   

As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d), and medial causation, the Board looks to the medical evidence.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008).

With respect to symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed any current diagnosis of neuropathy to an injury, disease, or event in service or to the service connected residuals of fracture of L-1 and T-12.   

The competent medical evidence of record pertaining to causation or a nexus to service consists of the reports of VA examinations.  The VA examiners expressed the opinion essentially that it was less likely than not that peripheral neuropathy of upper and lower extremities was related to service or to a service-connected disability.  The VA examiners linked peripheral neuropathy of the upper extremities nonservice-connected disability of the cervical spine or to carpal tunnel syndrome.  






As for the lower extremities, neuropathy was associated with the lumbar spine other than the service-connected residuals of fracture of L-1 and T-12, and unrelated to the service-connected disability as found on VA examination in January 2011.  

There is no medical evidence to the contrary.  The opinions of the VA examiners constitute competent and persuasive medical evidence which opposes rather than supports the claim.  

As there is no competent lay evidence on the material issue of fact, namely, a nexus to service and no medical evidence in favor of the claim, the preponderance of the medical evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).  
 

ORDER

Service connection for peripheral neuropathy of the upper and lower extremities is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs