Citation Nr: 1323631	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  07-14 493	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities, to include as secondary to service-connected recurrent pilonidal cyst with painful scarring of the buttocks.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel




INTRODUCTION

The Veteran served on active duty in the United States Army from February 1968 to February 1971.  Although a Vietnam War Era veteran, his military records show that he did not serve in the Republic of Vietnam, nor did he serve overseas, during active duty.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities (to include as secondary to service-connected recurrent pilonidal cyst with painful scarring of the buttocks).

In his substantive appeal of May 2007, the Veteran initially requested to be scheduled for a hearing with regard to his claim.  However, he subsequently withdrew his hearing request in July 2010.  The Board will therefore proceed with the adjudication of this appeal on the merits.

This case was thrice-remanded by the Board to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development in July 2010, February 2011, and November 2012.  Following development conducted pursuant to the latest remand, the denial of VA compensation for bilateral peripheral neuropathy of the upper and lower extremities (to include as secondary to service-connected recurrent pilonidal cyst with painful scarring of the buttocks) was confirmed in a May 2013 rating decision/supplemental statement of the case.  The case was then returned to the Board in May 2013 and the Veteran now continues his appeal.


FINDINGS OF FACT

The Veteran's bilateral peripheral neuropathy of the upper and lower extremities did not have its onset during his active military service and is not secondary to, nor is it permanently worsened beyond its normal progression by, his service-connected recurrent pilonidal cyst with painful scarring of the buttocks.


CONCLUSION OF LAW

Bilateral peripheral neuropathy of the upper and lower extremities was not incurred, nor is it presumed to have been incurred in active duty, and is not proximate to, nor is it aggravated by a service-connected disability.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), (b) (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties to notify and to assist

The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The Veteran's claim for service connection decided herein was filed in July 2005.  Notice letters addressing the applicability of the VCAA to the claim and of VA's obligations to the appellant in developing the claim were dispatched in March 2006 and July 2006 which, collectively, fully satisfied the above-described mandates.  No timing of notice defect exists as fully compliant notice was sent prior the initial adjudication of the claims in the October 2006 RO rating decision now on appeal.

VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the claimant of its duty to assist in obtaining records and supportive evidence.  In its remands of July 2010, February 2011, and November 2012, the Board collectively instructed the RO/AMC to provide the Veteran with the opportunity to testify at a hearing, obtain his service treatment records and any outstanding medical records relating to the Veteran's treatment for his bilateral peripheral neuropathy of his upper and lower extremities, and to provide him with the appropriate VA medical examinations for purposes of obtaining medical nexus opinions addressing the claimed disability at issue.  Towards this end, a review of the claims file indicates that VA has obtained his service treatment records pertinent to his period of active duty, as well as private and VA medical treatment records dated 1974 - 2013. The Board has also reviewed the Veteran's claims file as it appears on the Virtual VA electronic database for any pertinent clinical records.  

Pursuant to the Board's remands of February 2011 and November 2012, VA provided the Veteran with VA examinations addressing the neurological disability at issue in September 2011 and March 2013, in which nexus opinions were obtained by the clinicians who examined the Veteran and had opportunity to review his pertinent clinical history contained in his claims file.  The opinions specifically addressed the service connection issue on appeal.  The Board finds that the physician's opinions of September 2011 and March 2013 are collectively deemed to be adequate for purposes of adjudicating the VA compensation claims decided herein, as they adequately address, contemplate, and incorporate the findings of the Veteran's pertinent clinical history and his prior treatments and examinations of record.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  (The Board notes that the deficits of the September 2011 opinion that were noted in its November 2012 remand have been largely rectified by the opinion obtained in March 2013.)  At this juncture, the Board has considered the contentions of the Veteran's representative in his June 2013 brief on appeal, which asserts that the March 2013 nexus opinion remains defective because the examiner only addressed the relationship between the Veteran's claimed peripheral neuropathy and his service-connected scars associated with his pilonidal cyst, but did not discuss the relationship between the pilonidal cyst itself.  The Board finds that this argument is without merit as the question was addressed in the prior examination of September 2011.  The two opinions obtained in 2011 and 2013, when collectively considered, adequately address the likelihood of a relationship between the Veteran's peripheral neuropathy and his service-connected pilonidal cyst and buttock scars.     

Thusly, in view of the foregoing discussion, Board finds that the RO/AMC has substantially complied with its instructions regarding the evidentiary and procedural development ordered by the Board in its prior remands of July 2010, February 2011, and November 2012.  Therefore, no additional remand for corrective action is required.  [See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order.  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999): Exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.]  

Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required. The record shows that neither the Veteran nor his representative have indicated that they had any additional evidence or arguments to submit in support of the current claim.  He has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  Bernard v. Brown, 4 Vet. App. 384 (1993).  Thus, the Board will proceed with the adjudication of this appeal.  

Service connection analysis

The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. 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. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

To establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any documentation of treatment for complaints of paresthesias of the extremities or other symptoms indicative of peripheral neuropathy during active duty will permit service connection for peripheral neuropathy of the extremities, first shown as a clear-cut clinical entity, at some later date.  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."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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) (2012).   The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).

Peripheral neuropathy of the extremities may be presumed to have been incurred in service as an organic disease of the nervous system if manifest to a compensable degree within one year after discharge from active duty.  38 C.F.R. §§ 3.307, 3.309 (2012).

The Veteran is a Vietnam War Era serviceman.  Although acute and subacute peripheral neuropathy is a disease that is presumptively linked to exposure to chemical herbicides (including Agent Orange) for Vietnam War Era veterans who served within the territorial boundaries of the Republic of Vietnam, or who were assigned to perimeter duties at certain airbases in Thailand used by the United States Air Force where chemical herbicides were sprayed, or who were attached to specific army units assigned to patrol the De-Militarized Zone (DMZ) between North and South Korea where chemical herbicides were used, or who were stationed in Johnston Island in the Pacific where old stockpiles of chemical defoliant were sent for disposal, the Veteran's military records clearly demonstrate that he was never deployed to Vietnam, or otherwise served in any area where chemical herbicides were known to be used.  Therefore, he is not presumed to have been exposed to chemical herbicides during active duty and is not entitled to any of the presumptions afforded by the law and regulations for service connection for diseases associated with Vietnam War Era chemical herbicide exposure.

As relevant, the Veteran's service medical records show that his neurological system and upper and lower extremities were normal on enlistment examination in February 1968 and on service separation examination in January 1971.  His service medical records do not show treatment for paresthesias of the extremities or any neuropathic symptoms during his period of active duty.  On discharge from service in February 1971, the Veteran affirmed in a signed statement that his medical condition remained unchanged since the examination conducted approximately one month earlier in January 1971.

Post-service medical records include the reports of VA medical examinations conducted in October 1974 and November 1976, which show normal findings on evaluation of his neurological system and no indications of the presence of paresthesias of the extremities or any other neuropathic symptoms.  

Thereafter, private and VA medical records show normal findings with respect to the Veteran's neurological system and no complaints of any neuropathic symptoms even as late as May 2004.  The first clinical indication of onset of the claimed bilateral peripheral neuropathy of the upper and lower extremities is a private medical report dated in November 2004, which shows treatment for complaints of bilateral paresthesias of the upper and lower extremities.  The private and VA medical records afterward confirm the diagnosis of bilateral peripheral neuropathy of the upper and lower extremities that was idiopathic in nature.  The reports also show radiculopathy associated with his non-service-connected foraminal stenosis of his lumbosacral spine (confirmed by MRI imaging).  The examiners determined that the Veteran at the time did not have diabetes mellitus or any other disease which could be attributed as a causative factor to his bilateral peripheral neuropathy of the upper and lower extremities.  While the Veteran's full-time occupation as a printer was considered, his exposure to neurogenic chemicals at the workplace was also ruled out.     

In view of the facts discussed above, the Board finds that there is no clinical evidence that objectively demonstrates the onset of a chronic neurological disorder during the Veteran's period of military service, nor the presence of a chronic neurological disease manifested to a compensable degree within one year following his separation from active duty in February 1971.  A review of the post-service medical evidence also shows that no opinion has been presented that objectively associates his bilateral peripheral neuropathy of the upper and lower extremities to his period of military service.  As such, the Board concludes that the facts of the case do not support a finding that the Veteran's bilateral peripheral neuropathy of the upper and lower extremities may be directly or presumptively linked to active duty.

Notwithstanding the absence of evidence showing onset of bilateral peripheral neuropathy of the upper and lower extremities in service, the Veteran has presented a theory of service connection for this disease as being secondary to his service-connected recurrent pilonidal cyst with painful scarring of the buttocks.  By history, his service medical records reflect treatment for pilonidal cysts while serving in the military.  He is now service-connected for this disability, which is currently rated 20 percent disabling.  The Veteran contends that due to the physical proximity of his recurring pilonidal cyst near his coccyx, the surgery to treat his cyst resulted in the removal of the underlying tissue and musculature surrounding the tailbone, which weakened the tissues supporting his tailbone or damaged the coccyx itself, such that the surrounding nerve distribution was damaged as well, resulting in his bilateral peripheral neuropathy of his upper and lower extremities.  

To address the Veteran's aforementioned contentions, he was provided with VA neurological examinations in September 2011 and March 2013, which were conducted by VA physicians who had opportunity to review his pertinent clinical history.  These examination reports collectively present nexus opinions that, however broadly worded, determined that it was less likely than not (i.e., less than a 50 percent probability) that the Veteran's bilateral peripheral neuropathy of the upper and lower extremities was associated in any way to his service-connected recurrent pilonidal cyst, his history of surgery to treat the cyst, or to the residual scars associated with the pilonidal cyst and its surgical treatment, the overarching rationale being that there was no logical or medical reasons known to current medical science that a pilonidal cyst would cause bilateral peripheral neuropathy of the upper and lower extremities.  Otherwise, the clinical diagnosis of radiculopathy was definitively attributed to his non-service-connected lumbosacral foraminal stenosis. 

The Board has considered the pertinent evidence discussed above and finds that the weight of the objective clinical evidence is against the Veteran's claim for VA compensation for bilateral peripheral neuropathy of the upper and lower extremities, to include as secondary to service-connected recurrent pilonidal cyst with painful scarring of the buttocks.  In adjudicating the merits of this claim, the Board accords great probative weight to the physicians' nexus opinions of September 2011 and March 2013, due to the medical accreditation and expertise of the opining clinicians and because their opinions are informed by a review of the Veteran's entire pertinent clinical history and therefore implicitly reconcile any conflicts, irregularities, or inconsistencies in the record as they pertain to the claim at issue.  As relevant, these medical opinions, when considered holistically with the other medical evidence of record, have collectively and definitively determined that the Veteran's neurological symptoms, as they affect his upper and lower extremities, are either idiopathic in nature or are attributable to his non-service-connected orthopedic disability of his lumbosacral spine, but are not otherwise etiologically  related in any manner to his service-connected pilonidal cyst.  38 C.F.R. § 3.310(a) (2012).  Furthermore, based on the broadness of their language, the 2011 and 2013 medical opinions are also deemed by the Board to have considered and ruled out the existence of a secondary association through aggravation (which is to say, a permanent worsening beyond its normal clinical progression) of the erstwhile non-service-related bilateral peripheral neuropathy of the upper and lower extremities by the service-connected pilonidal cyst and its related residuals.  38 C.F.R. § 3.310(b) (2012).  Therefore, in view of the foregoing discussion, the Veteran's VA compensation claim based on a theory of proximate causation by a service-connected disability must be denied.  

To the extent that the Veteran attempts to relate his bilateral peripheral neuropathy of the upper and lower extremities to his service-connected pilonidal cyst based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board first notes that he is not shown in the record to be a trained medical clinician.  His military records reflect that he served on active duty in the United States Army in the capacity of an automobile mechanic.  His post-service vocational background is in the printing industry.  Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific question in this case regarding the nature and medical etiology of his bilateral peripheral neuropathy of the upper and lower extremities falls outside the realm of common knowledge of a lay person, he lacks the competence to provide a probative medical opinion linking this disability to service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are not competent to diagnose internal medical conditions, such as a neurological disorder of his peripheral nerves, which may be presented only by a trained physician or medical specialist in neurology.) 

In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for bilateral peripheral neuropathy of the upper and lower extremities (to include as secondary to service-connected recurrent pilonidal cyst with painful scarring of the buttocks), as the preponderance of the evidence is against allowing his claim.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).            

 
ORDER

Service connection for bilateral peripheral neuropathy of the upper and lower extremities (to include as secondary to service-connected recurrent pilonidal cyst with painful scarring of the buttocks) is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs