Citation Nr: 1326368 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 06-07 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include on a secondary basis. 2. Entitlement to service connection for peripheral vascular disease. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to September 1954, and from May 1957 until his retirement in May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January and June 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO. When this case was previously before the Board in May 2008, it was remanded for additional development of the record. By decision dated July 2009, the Board denied service connection for peripheral neuropathy of the lower extremities, and remanded the claim for service connection for peripheral vascular disease for additional development. The Veteran appealed the denial of the claim for service connection for peripheral neuropathy of the lower extremities to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated June 2010, granted a Joint Motion for Remand. The Board again remanded the claim for service connection for peripheral neuropathy of the lower extremities in October 2011, and remanded both claims now on appeal in November 2012. In its November 2012 determination, the Board also denied the claim for service connection for a low back disability with radiculopathy. This decision, accordingly, is limited to the issues set forth on the preceding page. The case is again before the Board for appellate consideration. Additionally evidence in the form of a May 2013 letter from Gary D. Levinson, MD was recently received at the Board. In an August 2013 statement, the Veteran's representative waived preliminary RO review of the new evidence. Please note 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). FINDINGS OF FACT 1. Service connection is in effect for coronary artery disease, status post myocardial infarction, evaluated as 100 percent disabling; residuals of a fracture of the right ankle, evaluated as 20 percent disabling; hypertension, evaluated as 20 percent disabling; arthritis of the left knee, evaluated as 10 percent disabling; arthritis of the right knee, evaluated as 10 percent disabling; and for scar, residuals of a shell fragment wound of the left leg, evaluated as noncompensable. The combined schedular evaluation is 100 percent. 2. The Veteran's peripheral neuropathy of the lower extremities is not causally related to service, nor is this disorder caused by or aggravated by a service-connected disability. 3. The Veteran's peripheral vascular disease of the lower extremities is not causally related to service, nor is this disorder caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the lower extremities was not incurred in or aggravated by active service, may not be it be presumed to have been so incurred or aggravated, and is not proximately due to or the result of, or chronically aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (2012). 2. Peripheral vascular disease was not incurred in or aggravated by active service, nor is it proximately due to or the result of, or chronically aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the appellant in January 2005, and June 2008 letters. Although complete VCAA notice was not provided prior to the initial adjudication of the claims, the matters were readjudicated in an April 2013 supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, and the reports of VA examinations. VA examinations have been conducted, and opinions regarding the etiology of the Veteran's claimed disabilities were obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they are based on an examination of the Veteran and a review of the claims folder. The opinions considered the pertinent evidence of record. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has been granted service connection for coronary artery disease, status post myocardial infarction, evaluated as 100 percent disabling; residuals of a fracture of the right ankle, evaluated as 20 percent disabling; hypertension, evaluated as 20 percent disabling; arthritis of the left knee, evaluated as 10 percent disabling; arthritis of the right knee, evaluated as 10 percent disabling; and for scar, residuals of a shell fragment wound of the left leg, evaluated as noncompensable. The combined schedular evaluation is 100 percent. The service treatment records are negative for complaints or findings pertaining to peripheral neuropathy of the lower extremities or peripheral vascular disease of the lower extremities. The Veteran did not report any pertinent history on the report of medical history in December 1973. On the retirement examination in December 1973, the vascular system was normal, and there were no abnormalities on neurologic evaluation. VA outpatient treatment records disclose the Veteran was seen in May 1979 for complaints including paresthesias, primarily nocturnal, of recent onset. It was stated he had a 2 1/2 month history of nocturnal cramps in his feet. An examination of the extremities showed sensation was normal. There was no edema, and dorsalis pedis pulses were normal. On VA examination in May 1998, the Veteran reported some edema of the lower extremities. He denied paresthesias in the left leg. He also stated he had paresthesias in the right leg from a herniated nucleus pulposus. The Veteran was examined by the VA in February 1999. An examination of the lower extremities demonstrated 1+ dorsalis pedis pulsation. In a statement dated September 2001, T.W. Harris, M.D., related that in addition to having a motor neuropathy, the Veteran also had a sensory radiculopathy of the lower extremities. The Veteran was seen by I. Bakst, M.D. in October 2001. An electromyogram revealed chronic peripheral neuropathy, axonal. The examiner indicated the peripheral neuropathy was not industrial. Dr. Bakst wrote a letter the next day in which he stated that, separate from his accident, the Veteran had evidence for peripheral neuropathy, the cause of which needed to be established. It was noted in December 2001 that the Veteran continued to have significant difficulty in terms of sensory changes in the lower extremities. The pertinent diagnosis was peripheral neuropathy. A January 2002 letter from V.J. Guzetta, M.D. shows the Veteran reported bilateral anterior calf pain for about one year. The examiner indicated that on the basis of history alone, the Veteran's calf pain suggested a vascular claudication. He had no history of ischemic ulceration or toe gangrene. The Veteran asserted his feet were frequently cold and bluish in color, and he had noticed this for many years. He also complained of symptoms that were suggestive of peripheral neuropathy. He related his symptoms had been present for one to two years. Dr. Guzetta noted the Veteran had recently had a peripheral arterial duplex test which suggested a right popliteal artery stenosis and a left common femoral and superficial femoral artery stenosis. He stated the results were inconclusive regarding the Veteran's history of possible ischemic claudication. The Veteran had several risk factors for vascular disease, including hypertension and a history of smoking. A neurologic evaluation showed some decreased subjective sensation on the plantar aspect of each foot. The pertinent impression was intermittent claudication secondary to femoral popliteal occlusive disease on the left with significant post exercise ischemia. Following an examination in April 2002, Dr. Harris diagnosed chronic peripheral neuropathy, axonal, Vietnam service. In October 2004, a private physician noted the Veteran had first presented in July 2003 with left lower extremity wounds. A non-invasive arterial study confirmed peripheral vascular occlusive disease of the lower extremities. He underwent a femoropopliteal bypass on the left as well as common femoral, deep femoral and superficial femoral artery endarterectomy. The Veteran was afforded a peripheral nerves examination by the VA in January 2005. He related his symptoms had been present for 20 years and, while he had a complete work-up, there was no known cause. He reported paresthesias in both feet for the previous 12 years. The diagnosis was axonal peripheral neuropathy. On VA examination in December 2011, the examiner noted he reviewed the claims folder. The examiner stated the Veteran had peripheral neuropathy of the lower extremities. He concluded it was less likely than not that it was incurred in or caused by service. He observed that peripheral neuropathy had been present for the previous eight to ten years, and the records indicated it was a stocking glove type neuropathy. He commented that this type of peripheral neuropathy is much less likely than not to be associated with herbicide exposure. Such exposure-induced neuropathy has early manifestations within a few years, and it does not come on after 25 years. He pointed out it was not a complication seen in Vietnam veterans or others with herbicide exposure at a late date. The literature does not support a latent referral neuropathy due to herbicide exposure. With respect to peripheral neuropathy, the examiner also noted that an evaluation by Dr. Harris in 1996 identified no specific nerve dysfunction. The VA examiner related that peripheral neuropathy was first identified in 2001, some 26 years after the Veteran's retirement from service. He added there was no identified service injury that could result in peripheral neuropathy of a stocking glove nature. He also stated it was less likely as not proximately due to or the result of any of the Veteran's service-connected disabilities. He commented there was no service-connected disability that was recognized to cause peripheral neuropathy as the Veteran presented. The Veteran was again examined by the VA in January 2013. The diagnoses were peripheral neuropathy and peripheral vascular disease. The examination 0report indicates that peripheral neuropathy was diagnosed in the 1970's and peripheral vascular disease was diagnosed around 1992. With respect to peripheral neuropathy, the Veteran claims he started developing pain, and then later numbness in the balls of both feet, which slowly advanced up the foot and leg, to include numbness and pain below the knees. The examiner noted she reviewed the claims folder. It was concluded that peripheral neuropathy of the lower extremities was less likely than not proximately due to a service-connected disability, to include peripheral vascular disease. She also stated it was less likely than not to have been aggravated by a service-connected disability, to include peripheral vascular disease. The examiner explained that the Veteran has had peripheral neuropathy of the lower extremities for many years, and it has been described as having progressed in a stocking glove fashion. She noted there were reports from private physicians indicating that the Veteran's peripheral neuropathy was idiopathic (no known cause). She added he had his first vascular procedure in 2002, and he already had chronic peripheral neuropathy by 2001. She observed that chronic peripheral neuropathy takes years to develop, so most likely he had it before he developed clinically significant peripheral vascular disease. She noted a blood test by Dr. Bakst in 2001 found no etiology for the peripheral neuropathy. She maintained that the common causes of peripheral neuropathy of the stocking glove type are diabetes, Guillain-Barre, alcohol, chemotherapy, heavy metals and idiopathic. The VA examiner pointed out there was no history of these other causes. She further stated convincing evidence in the medical literature to the effect that peripheral vascular disease causes a peripheral neuropathy was not found. Thus, she concluded that the claims folder supported the opinion that the cause of the Veteran's peripheral neuropathy was unknown (idiopathic). Finally, the examiner opined there was no convincing evidence in the medical literature that peripheral vascular disease of the type the Veteran has aggravates peripheral neuropathy beyond its natural progression. She stated that by the time the Veteran had his first vascular procedure in 2002, he already had established peripheral neuropathy. Since peripheral vascular disease can cause symptoms similar to neuropathy, most likely the Veteran had symptoms of peripheral neuropathy and symptoms of peripheral vascular disease simultaneously. The Veteran was most recently examined by the VA in April 2013. The diagnosis was peripheral vascular disease. It was indicated it had been diagnosed in the early 1990's. Following an examination and review of the claims folder, the examiner concluded that peripheral vascular disease was less likely than not incurred in or caused by service. She explained that peripheral vascular disease is caused by a hardening of the blood vessels in the extremities, and the most common cause is atherosclerosis. She stated hypertension and coronary artery disease are often seen in conjunction with peripheral vascular disease because many of the same risk factors lead to all three conditions. However, hypertension and coronary artery disease do not themselves cause or worsen peripheral vascular disease. She asserted that atherosclerosis was the most likely cause of the Veteran's peripheral vascular disease, and it was less likely than not that coronary artery disease and/or hypertension caused or caused an increase in the severity of his peripheral vascular disease. In the May 2013 letter cited in the introduction, Dr. Levinson identified himself as an internist and stated that he had attended the Veteran since February 2002. Dr. Levinson offered is opinion that the peripheral neuropathy and peripheral vascular disease of the lower extremities were directly related to the Veteran's "service cardiovascular disease." No rationale was furnished. The Veteran asserts service connection is warranted for both peripheral neuropathy and peripheral vascular disease of the lower extremities. His main argument, at least with respect to peripheral neuropathy, is that it was related to his low back disability. He has also appeared to allege it is due to his exposure to Agent Orange in service. Since the Board has denied the Veteran's claim for service connection for a low back disability with radiculopathy, service connection for peripheral neuropathy secondary to a low back disability has no merit. There is no indication during service or for many years thereafter of any complaints or findings suggestive of peripheral neuropathy or peripheral vascular disease of the lower extremities. The record establishes these disabilities were initially demonstrated many years following the Veteran's retirement from service. The Board acknowledges the assertions of the Veteran that he has peripheral neuropathy and peripheral vascular disease of the lower extremities that are related to service or a service-connected disability. He is competent to report that his symptoms have been present since service. Lay persons are competent to provide opinions on some medical issues; however, the specific issue in this case, whether peripheral neuropathy or peripheral vascular disease of the lower extremities is related to service or a service-connected disability, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board acknowledges that the Veteran reported to Dr. Guzetta in January 2002 that his feet had been cold and blue for many years. He also asserted on the January 2005 VA examination that his symptoms had been present for 20 years. The Board notes that even if this were true, it still suggests his symptoms began more than a decade after his retirement from service. In the absence of any indication of either condition for many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. It is significant to point out that several VA physicians have concluded that peripheral neuropathy is not related to service. The examiners provided a rationale for that opinion. Similarly, it was stated following the January 2013 VA examination that peripheral neuropathy was not aggravated by a service-connected disability. It was also concluded following the most recent VA examination in April 2013 that peripheral vascular disease had been a +aggravated by coronary artery disease or hypertension. As mentioned above, the Veteran appears to be claiming his disabilities might be related to his exposure to Agent Orange in service. The Board notes that the VA has determined that certain diseases are associated with exposure to Agent Orange. Although the Veteran did serve in Vietnam, he does not have acute or subacute peripheral neuropathy. In this regard, this disability would have to have been shown within weeks or months of exposure and to also have resolved within two years from the date of onset. See 38 C.F.R. § 3.309(e) (2012). In this case, the Veteran's peripheral neuropathy was not present for more than two decades following the Veteran's separation from service. The Board also emphasizes that a VA examiner specifically rejected any connection between exposure to Agent Orange and peripheral neuropathy. The Board has considered the May 2013 opinion by Dr. Levinson, but finds the other negative opinions of record to be entitled to more weight. Dr. Levinson did not offer any reasons for his opinion whereas the Board finds the other medical evidence, especially the April 2013 VA opinion, to be supported by a detailed and persuasive rationale. It appears to the Board that a major distinction to be drawn from the medical evidence is that the same risk factor (atherosclerosis or hardening of the blood vessels) exists for both coronary artery disease and for peripheral vascular disease. However, the medical evidence persuasively shows that the coronary artery disease did nor cause or aggravate the vascular disease. Based on the totality of the evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for these disabilities. As the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for peripheral neuropathy of the lower extremities is not warranted. Service connection for peripheral vascular disease of the lower extremities is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs