Citation Nr: 1324656 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 08-19 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a neurological disorder of the upper and lower extremities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to September 1981 and February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for cervical and lumbar spine disease with bilateral upper and lower extremity radiculopathy and bilateral carpal tunnel syndrome, claimed as pain from nerve damage. In December 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in July 2008. A November 2009 statement from the Veteran clarified that he was not seeking service connection for lumbar disease, but only for neuropathy of the upper and lower extremities. His case is currently under the jurisdiction of the VA RO in Louisville, Kentucky. In December 2011, the Board remanded the Veteran's claim of entitlement to service connection for a neurological disorder of the upper and lower extremities to the Appeals Management Center (AMC) for further evidentiary development, FINDING OF FACT A preponderance of the evidence fails to establish that the Veteran currently has a neurological disorder of the upper and lower extremities, to include peripheral neuropathy that is attributable to his active service, including any immunizations/vaccinations received in service. CONCLUSION OF LAW A neurological disorder of the upper and lower extremities was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While 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 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. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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). 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 Veteran. 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, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (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). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. A January 2007 letter provided all required notice elements, including information regarding disability ratings and effective dates. VA's duty to assist has also been satisfied. The Veteran's service treatment records, personnel records, VA examination report, VA treatment records, and Veterans Health Administration (VHA) opinions are in the file. Private treatment records have been obtained to the extent possible. The Veteran has not identified any additional records that he felt were relevant to his claim or that he wished for VA to obtain. The record indicates that the Veteran underwent a VA examination to address his neuropathy in February 2012. Additionally, a March 2013 expert opinion from a VHA neurologist with an April 2013 clarification was obtained as well. The report from that examination and the VHA opinion with clarification have been included in the claims file for review. The examination/opinions each involved a review of the claims file, a thorough examination of the Veteran (examination only), the Veteran's lay history, and a conclusion that was supported by sufficient rationale. Therefore, the Board finds that the examination/opinions of record, taken together, are adequate to decide the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Finally, as noted above, this case was remanded for additional evidentiary development including attempting to obtain any additional service treatment or personnel records, determining whether the Veteran served in Southwest Asia, and providing the Veteran with a VA examination and opinion. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC attempted to obtain any additional service treatment or personnel records and determined that the Veteran had not been deployed to Southwest Asia. Additionally, the Veteran was afforded a VA examination in February 2012 and the Board obtained a VHA expert opinion in March 2013 with an April 2013 clarification opinion to supplement the February 2012 VA examination. Accordingly, all remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that he first experienced neuropathy of the upper and lower extremities following immunizations he received in anticipation of deployment to the Persian Gulf and that he has experienced neuropathy since that time. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a qualifying chronic disability, which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317(a)(1) (2012). Initially, the Board notes that the evidence does not establish that the Veteran served in the Southwest Asia theater of operations during his 1991 period of active duty, nor does he claim such. Rather, he claims that he received immunizations in anticipation of deployment to Southwest Asia, but was never actually deployed. Accordingly, the Board will not consider whether the Veteran may receive service connection for a qualifying chronic disability under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a)(1). A review of the medical evidence reflects that the Veteran has been treated for complaints of numbness and tingling in his extremities. He has been diagnosed with various neurological disorders of the upper and lower extremities, including bilateral carpal tunnel syndrome, possible cervical radiculopathy and right S1/S2 radiculopathy, right upper and lower extremity radiculopathy, right trigger finger, neuropathic pain of unknown etiology, and peripheral neuropathy. The first element of Hickson is thereby met. A review of the Veteran's service treatment records is negative for any complaints of neuropathy or other neurological symptoms. The Veteran does not otherwise contend that he was treated for neurological symptoms in service, rather that they are the result of immunizations he received. An immunization record from his first period of service lists several immunizations. There is no immunizations recorded from his second period of service. However, referencing a May 2000 study in the British Medical Journal by D.M. Hotopf, which was cited by the VHA expert, the Board finds it likely that the Veteran received vaccinations for anthrax, plague, pertussis, tetanus, cholera, hepatitis A, hepatitis B, polio, yellow fever and typhoid. Such were considered to be the usual immunizations that were given in anticipation of possible deployment to Southwest Asia. The second element of Hickson is met. Although an in-service injury and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's reported in-service immunizations and his current lower and upper extremity neuropathy. See Hickson, supra. The Veteran was afforded a VA examination in February 2012. At that time, the Veteran reported neuropathic pain and numbness which began after he received immunizations in 1991 while in service. The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome, cervical and lumbar radiculopathy, and peripheral neuropathy. He concluded that the Veteran's neurological disorders were not related to his military service. He explained that the Veteran's carpal tunnel syndrome and cervical and lumbar radiculopathies were due to compressive lesions, not vaccinations, and that the medical literature did not list peripheral neuropathy as a risk of any of the Veteran's listed immunizations. The examiner did not, however, provide an opinion on whether the peripheral neuropathy could be associated with undocumented immunizations the Veteran received in anticipation of deployment to Southwest Asia. A medical opinion from a VHA neurologist was obtained in March 2013 with an April 2013 addendum. The VHA neurologist concluded that it was not likely that the Veteran's neuropathy was the result of immunizations received in anticipation of deployment to Southwest Asia. She explained that neuropathy after a vaccination is a rare event and no study has confirmed a link between neuropathy and vaccinations. She further noted that peripheral neuropathy is not an adverse health outcome associated with the vaccinations that the Veteran received/is presumed to have received. In support of her conclusion, she cited to the aforementioned Hotopf study (medical journal article), found that multiple vaccinations received by Gulf War soldiers did not seem to be harmful. In light of her review of the medical literature, she was unable to provide a link between the Veteran's presumed immunizations and his current neuropathy. The medical evidence also includes VA and private treatment records noting the Veteran's complaints of neuropathy and associated diagnoses. These records are generally consistent with the VA examinations and fail to provide any definitive opinion on the etiology of his neurological complaints. Significantly, an August 2007 VA treatment record noted that the Veteran's neuropathic pain was of unknown etiology. The Board notes that a June 2008 VA treatment record diagnoses the Veteran with peripheral neuropathy of idiopathic origin and notes that it is "conceivably related to immunizations in 1991 after which it developed, as no other cause has been determined." To the extent that the Veteran claims that the June 2008 record constitutes a positive nexus opinion upon which to grant service connection, the Board notes that it is free to favor one medical opinion over another as long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this regard, the Board finds the June 2008 VA treatment record less probative than the VA and VHA examiners' opinions. The June 2008 physician provided no rationale for his opinion other than that no other cause had been identified. Further, unlike the VHA physician, he did not cite to any medical literature or authority. The statement that it was conceivable (possible) that the immunizations caused the neurological problems is also far more speculative than the VHA opinion, which provided a clear and definitive negative opinion. Finally, he did not indicate which immunizations the Veteran likely received and provide an opinion specific to those immunizations. In light of these deficiencies, the Board finds the June 2008 VA physician's opinion less probative than that of the VA examiner and VHA neurologist. As such, it is insufficient to grant service connection. The only other evidence which purports to link the Veteran's current neurological disorder to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical determinations based on knowledge of neurological medicine and the risks and possible outcomes of various immunizations. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran can describe what he experiences (in this case, pain and numbness), he is not able to provide competent evidence as to the etiology of his neurological symptoms. Providing such an opinion requires medical expertise in the identification of neurological disorders and the causes of such. The Veteran and his representative have no such expertise. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1) (2012). Recognition is given to the representative's argument that a 2011 neurological study/report supports the award of service connection. She included excerpts of that study. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus). The Board places no probative value on the 2011 report authored by J. Sejvar, M.D., as it was written to explain general medical principles, and not an opinion regarding the specific facts in this case. Other medical professionals have examined the specific facts in this case and have opined that upon review of the complete file, physical examination, and consideration of the Veteran's health history, that there was no relationship between the Veteran's neurological disorder and his receipt of vaccinations in service. Indeed, the excerpts of the 2011 report are rather inconclusive. Dr. Sejvar only noted that it was possible to find case reports or small case series of nearly any neurologic illness following nearly any vaccine. He also indicated that drawing firm conclusions about causality was not possible. Consideration has been given to the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran complains of neuropathic pain since service. The February 2012 VA examiner and March/April 2013 VHA neurologist considered these complaints in forming their opinions. However, they still found that his current complaints were not related to his active service, including any immunizations he received. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Peripheral neuropathy is not on the list of chronic diseases. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's presumed in-service immunizations and his current neurological disorder, including peripheral neuropathy. Although the Board notes the Veteran's current disability and presumed in-service immunizations, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a neurological disorder of the upper and lower extremities must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a neurological disorder of the upper and lower extremities is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs