Citation Nr: 1327323 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 06-03 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected hypogammaglobulinemia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina, that, in pertinent part, denied service connection for peripheral neuropathy. Jurisdiction of the Veteran's appeal is currently with the RO located in St. Petersburg, Florida. In November 2008, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the November 2008 hearing, the undersigned clarified the issue on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. This matter was previously before the Board in April 2009, July 2011, and February 2013 at which time it was remanded for additional development. It is now returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that following the issuance of the most recent May 2013 Supplemental Statement of the Case, the claims file was supplemented with a private medical record from E. Kovacs, M.D., dated in June 2013. This evidence was not accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ) prior to submission to the Board. While this would generally require the case to be remanded to the AOJ for review and preparation of an additional Supplemental Statement of the Case, as the issue before the Board is being granted, initial consideration of the additional evidence by the Board would not be prejudicial to the Veteran. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the AOJ); 38 C.F.R. §§ 19.37, 20.1304 (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless claims file includes a Written Brief Presentation dated July 13, 2013, that was submitted on his behalf by his accredited representative. A review of the remaining documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current peripheral neuropathy is etiologically related to his service-connected hypogammaglobulinemia. CONCLUSION OF LAW Service connection for peripheral neuropathy is warranted. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. The Veteran asserts that he currently has symptoms associated with peripheral neuropathy that is secondary to his service-connected hypogammaglobulinemia. The Veteran has reported a history of bilateral neuropathy (i.e., burning, pain, and numbness in the feet) which has been confirmed by both private and VA examinations in 2009 and 2010. A private medical record from E. Dimberg, M.D., dated in August 2009, shows that it was indicated that it was possible that the Veteran's painful peripheral neuropathy may be due to a vascular or autoimmune cause. A VA examination report dated in April 2010 shows that the VA examiner indicated that the Veteran was diagnosed with hypogammaglobulinemia in service, and that he also had recurrent infections including sinusitis and bacteremia in service. The VA examiner also noted that the Veteran currently experienced chronic sinusitis and recurrent bronchitis, and stated that these residuals were difficult to assess, as the Veteran had familial allergies; and, that in the Veteran's geographic area allergies and recurrent sinus infections were not uncommon. The VA examiner added that the Veteran had done exceedingly well for more than 40 years since service without any significant progression of the condition. However, as the VA examiner did not give a clear opinion as to whether it was at least as likely as not that the Veteran's hypogammaglobulinemia was manifested by a chronic respiratory condition, the Board, in its July 2011 Remand, determined that the opinion was of limited probative value. As such, the Board requested an additional VA medical opinion. A VA examination report dated in September 2011 shows that the Veteran was diagnosed with axonal neuropathy of the left lower extremity only. This was based upon an electromyograph (EMG) study of the same date that had not been associated with the Veteran's claims file. The EMG study purportedly showed normal nerve conduction in the right lower extremity and was referred to on multiple occasions throughout the examination report. The VA examiner stated that the EMG findings were inconsistent with the Veteran's subjective complaints and other clinical findings of record. Indeed, the Veteran had primarily complained of more prominent symptoms in the right lower extremity; moreover, the prior VA examination findings had revealed absent right ankle reflexes; decreased sensation in the right lower ankle, foot, and toes; mild incomplete paralysis of the right peroneal nerve; mild incomplete paralysis of the right anterior tibial nerve; and mild incomplete paralysis of the right internal saphenous nerve. The VA examiner, nonetheless, concluded that the EMG study did not support the Veteran's symptoms and clinical findings of decreased right extremity sensation, reflexes, etc., and diagnosed left lower extremity axonal neuropathy. The VA examiner opined that such disability was not caused by service, and that there was no evidence of aggravation by the service-connected hypogammaglobulinemia disorder. The examiner reasoned that the left lower extremity neuropathy was more likely associated with vasculitis or an inflammatory process, as suggested by Mayo Clinic records dated in August and September 2009. In its June 2012 Remand, the Board concluded that the VA examiner had not provided reasoning or rationale for his conclusion that the peripheral neuropathy was not aggravated by the Veteran's hemic condition; and that despite the conflicting EMG and clinical findings regarding the right lower extremity, the examiner only provided a diagnosis relating to the left lower extremity and provided no explanation for the objective neurological findings relating to the right lower extremity. As such, the Board found this examination report to be of limited probative value. In the June 2012 Remand, the Board also noted that the September 2011 VA examiner, as well as private examiners from the Mayo Clinic in August and September 2009, had suggested that the Veteran's peripheral neuropathy was due to vasculitis. The Veteran also submitted evidence in the form of internet articles and written statements which indicate an increased incidence of vascular disease with hypogammaglobulinemia or common variable immunodeficiency (CVID) disorders. Thus, the Board sought an additional VA medical opinion. A VA examination report dated in July 2012 shows that the VA examiner reviewed the September 2011 EMG report but did not attach a copy of it to the examination report or indicate that he attempted to do so. The VA examiner explained that the September 2011 EMG was not inconsistent with the Veteran's reports as it was the exclusive form of objective evidence and was consistent with prior EMG results. The VA examiner opined that the axonal neuropathy in the left leg was most likely associated with vasculitis or other unspecified inflammatory process. The VA examiner did not express an opinion as to whether vasculitis or related inflammatory process was related to or aggravated by service connected CVID. As the examination report did not fully address the evidence and opinions requested by the Board, it also was deemed to be of limited probative value, and an additional VA examination was requested. A VA examination report dated in April 2013 shows that the VA examiner opined that peripheral neuropathy was less likely than not related to the Veteran's active service, or secondary to the service-connected hypogammaglobulinemia. The VA examiner explained that the current vasculitis or related inflammatory process was less likely than not caused by an event or disease incurred in service. The VA examiner added that the neuropathy was diagnosed in 1992 and the autoimmune disease or vasculitis was diagnosed 17 years later in 2009. The VA examiner noted that a Mayo Clinic noted dated in June 2009 had shown evidence of an old inactive bilateral S1-L5 radiculopathy and probable mild underlying length axonal neuropathy. The VA examiner also concluded that the current vasculitis or related inflammatory process (any vasculitis or related inflammatory disease shown after June 2004) was less likely than not caused by the service-connected CVID. The VA examiner stated that one was not the cause of or related to the other, being that they have different pathology/pathogenesis. While CVID was shown to be a genetically determined primary immune defect resulting to insufficient antibodies in response to exposure to pathogens, vasculitis was a group of disorders that destroyed blood vessels by inflammation (inflammatory leucocytes) where both arteries and veins were affected, both conditions are not aggravated beyond natural progression. The VA examiner referred to "Wikipedia Online Encyclopedia" as an authority for the opinion provided. As it appears that the VA examiner's expertise on the subject matter at hand was limited to the degree that reference had to be made to an online encyclopedia available to the general public that is of known questionable reliability, the Board finds this opinion also to be of limited probative value. The June 2013 letter from Dr. Kovacs confirmed that the Veteran was being treated with intravenous immunoglobulin (IVIG) therapy for his longstanding common variable immune deficiency syndrome, which was originally diagnosed during his active duty years, but never treated with immune molecule infusion therapy. It was explained that in recent years, the Veteran was diagnosed with chronic peripheral neuropathy, proven by neurology workup, including nerve conduction studies. Dr. Kovacs also explained that it was well known and published in the fields of neurology and immunology that these two conditions were closely related, specifically that the immune deficiency over time can and does lead to neurological damages. This was also said to be proven by the fact that one of the most effective treatments for chronic demyelinating peripheral neuropathy was actually the high dose immune molecule replacement therapy, i.e., IVIG, which the Veteran just started to receive in the recent past. Therefore, Dr. Kovacs opined, that consistent with nationwide clinical experience, the two conditions were clearly related to each other. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis. Id. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this regard, in weighing the evidence of record, the Board assigns greater probative weight to the medical opinion of Dr. Kovacs as he has been treating the Veteran for his disabilities, and he appears to possess the requisite medical expertise required to address the medical subject matter before the Board. As noted above, the various VA medical opinions of record obtained over the course of this appeal have all been of limited probative value. As such, the Board finds that the evidence is at the very least in equipoise on this matter; which is all that is required for a grant of the benefit sought on appeal. In light of the opinion of Dr. Kovacs, it is at least as likely as not that the Veteran's current peripheral neuropathy is related to his service-connected hypogammaglobulinemia. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that peripheral neuropathy is proximately due to the service-connected hypogammaglobulinemia. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310. ORDER Service connection for peripheral neuropathy is granted. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs