Citation Nr: 1327642 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-10 436 ) 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 lower extremities (claimed as nerve damage). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from June 1986 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for nerve damage of the lower extremities. In January 2012, the Veteran testified before a Decision Review Officer at the RO. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. [In addition, a copy of the October 2012 transcript was sent to the Veteran in February 2013, along with a letter advising her that she had 30 days to file a motion to correct the transcript. The record reflects that to date, the Veteran has not responded to this letter.] In May 2013, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claim (as reflected in a July 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. FINDING OF FACT The peripheral neuropathy of the Veteran's lower extremities was not present in service, and there is no competent and credible evidence relating it to her military service, including specifically to any disease, injury or trauma in service. CONCLUSION OF LAW Peripheral neuropathy of the lower extremities was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (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. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in May 2013 of VA's duty to assist her in substantiating her claim and the effect of this duty upon her claim. This letter also informed her of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. The letter addressed all notice elements. The timing defect of this correspondence was cured by the AMC's subsequent readjudication of the claim, and issuance of an SSOC in July 2013. Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. Her in-service and pertinent post-service treatment reports are of record. The Veteran submitted personal statements and representative argument and provided testimony at the January 2012 and October 2012 hearings. She has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Board has reviewed both the Veteran's physical claims file and the file on the Virtual VA electronic file system, to ensure a total review of the available evidence. The Board is also satisfied that the AMC has substantially complied with the May 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). A VA examination was obtained in July 2013 to assist in determining whether the Veteran's peripheral neuropathy of the lower extremities is attributable to her military service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). This VA examination is more than adequate, as it reflects a full review of the evidence of record, is supported by sufficient detail, and refers to specific documents and medical history and the Veteran's service history to support the conclusions reached. There is also no competent medical evidence of record of a nexus between any currently diagnosed peripheral neuropathy of the lower extremities and service. There is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is 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 (Fed. Cir. 2002). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis In seeking service connection for peripheral neuropathy of her lower extremities, the Veteran contends that this problem began during her period of active service. 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). Service connection may be granted for any 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). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. As peripheral neuropathy is not listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the Veteran essentially contends that she has nerve damage to her legs that is related to a back injury in service. She testified that, during active service in Korea in late 1986 or early 1987, she fell off a deuce and a half truck and landed on her low back. She claims that after this accident she could not move her legs, went to the aid station, and was transported to a hospital. She also claimed that X-rays were taken and that thereafter she was placed on an extended profile. She testified that she had swelling and nerve impairment to her legs as a result of this accident and has continued to have swelling and nerve impairment in her legs since service. See October 2012 hearing transcript. In her initial claim for service connection, received in March 2007, the Veteran contended that her disabilities included persistent swelling in the legs, ankles, and knees, which she reported occurred in July 1986, and that treatment began in August 1989. See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received in March 2007. Received from the Veteran in December 2007 was another VA Form 21-526, in which she reported having bilateral lower extremities nerve damage in July 1987, for which she was treated at Fort Dix. Service treatment records show no report or finding of a back injury from falling off of a truck, or of nerve problems in the legs but do illustrate that the Veteran complained of swelling in the lower extremities, primarily in the ankles, on numerous occasions. In early July 1986, she was seen for a one day history of swelling in both ankles, and it was noted that she had marched two miles, but had no pain. The assessment was tendonitis. An orthopedic consultation was ordered, and the Veteran was put on a profile for early over use-tendonitis. In July 1986, she was seen for complaints of a several week history of edematous lower extremities with little pain, and the provisional diagnosis was edema of the legs and ankles. In August 1986, the Veteran was seen in the medical clinic at Fort Dix and reported that she had a history of progressive ankle swelling starting in early July and that it progress to below the knees and into the hands. The assessment was lymphedema, etiology undetermined, consider allergic, Milroy's syndrome (idiopathic). Service treatment records further show that in August 1986 the Veteran was placed on physical profile for swelling in the extremities. In March 1987, she complained of a long history of intermittent lower leg swelling especially with increased running and physical activity. The assessment was intermittent leg swelling with normal work up in the past. In February 1988, the Veteran was injured after falling from a truck. She complained of rib pain, swelling, and ICS tenderness 9th - 11th (intercostal space). At that time, her complaints and findings were solely confined to the chest with no specific mention of the back or lower extremities. In June 1990, she was again seen for complaints of swelling in the hands and feet, with outdoor strenuous activity, and the assessment was idiopathic edema, not significant. At a June 1992 separation examination, her lower extremities were clinically evaluated as normal, and, on a related report of medical history, she responded "yes" to having or having had cramps in the legs, a trick or locked knee, and foot trouble. She had swelling in both ankles and legs in the past. Clinical evaluation of her lower extremities was within normal limits, and the examiner did not otherwise provide further summary or elaboration of the historical information, and there was no diagnosis of peripheral neuropathy of the lower extremities. On a VA examination in October 1992, the Veteran reported that due to marching, walking, and jogging on PT, with her heavy boots and with a fallen arch, she started to have pain in her feet and ankles and also swelling of the ankles. This was noted to be her main problem currently. The diagnoses included pes planus, callosities on toes and plantar area, with tendonitis on both feet, mostly on the ankle Achilles tendon area, and shin splint with tenderness on palpation pretibial area. There was no mention of a previous back injury associated with military service. Based on service treatment records and the October 1992 VA examination, the RO granted service connection for tendonitis of the left ankle and tendonitis of right ankle. See March 1993 rating action. Post-service VA treatment records show that in September 2003 the Veteran complained of chronic pain in her left lower leg. There were no significant clinical findings reported or diagnosis provided. In February 2005 she complained of leg swelling since she left the military and had been on a CCB (calcium channel blocker) for the last three years, with prior swelling. "[L]eg swelling nonpitting CCB?" was assessed. In January 2006, she complained of right leg pain. In April 2006, she described continued achiness in most joints, especially with any increase in repetitive activity. It was noted that she had a history of injury to the ankle while in the military. The impression was chronic arthalgias, likely early degenerative joint disease. In August 2006, examination of her lower extremities revealed that her left knee was positive for slight localized swelling and tenderness and that she had varicose veins in the back of the leg area with slight peripheral edema noted. At a July 2007 VA examination, the Veteran reported intermittent complaints of paresthesias in her left lower extremity. The diagnoses were bilateral ankle tendinitis and bilateral pedal and pretibial edema, worse on the left side, which was chronic. An October 2007 NCV/EMG study of the lower extremities revealed mild to moderate sensorimotor peripheral neuropathy, mainly axonal type. Clarification was then requested as to the likely etiology of the Veteran's claimed leg pain. According to a November 2007 VA examination addendum, it was noted that there was bilateral lower extremity edema noted in service and that the Veteran had hypertension for which she took several medications (vasodilators), which would likely account for the edema along with venous insufficiency. The examiner noted that the Veteran's asymmetric lower extremity edema was chronic and currently seen on examination. Objective testing showed a mild to moderate bilateral peripheral neuropathy in the lower extremities, which the examiner opined would not likely be associated with the edema, but that these findings would likely correspond to the Veteran's complaints of pains in the legs. The examiner opined that it was less likely than not that the Veteran's current complaints of pain in the legs were related etiologically to the complaints or findings noted during service. After reviewing the 2007 VA examination report, in light of the Veteran's statements and testimony, the Board concluded that it was inadequate and that another supplemental examination/opinion was warranted, primarily to address the Veteran's competent report of continuity of symptoms since service. See May 2013 Board Remand. The Veteran underwent additional VA examination in July 2013. Following review of the record, and an examination of the Veteran, the diagnoses included degenerative disc disease of the lumbar spine and peripheral neuropathy of the lower extremities. At that time, the VA examiner reviewed the claims file, including service treatment records and post-service VA examination reports and summarized the history and findings reflected by these records. The Veteran's history of in-service lower back injury as a result of falling from a 2.5 ton truck (a distance of about 5 feet) in 1987 and current medical problems were also noted. Referring to previous EMG/NCV and MRI findings, the examiner noted the Veteran had a well-documented history of degenerative disc disease, with peripheral neuropathy involving both lower extremities. The examiner also referred to military health records which document a fall from the back of a truck which occurred on February 12, 1988 with a complaint of bilateral rib pain. She was diagnosed with chest wall pain and treated with pain medication, with no follow-up treatment notes found. The examiner noted that in June 1992 the Veteran was evaluated for a complaint of upper back pain located between the clavicle and scapula, but that this area of discomfort was not consistent with her current complaints. A thorough search of the military health records failed to reveal any other evidence of evaluation or treatment for back pain. The examiner concluded it was less likely as not (less than 50/50 probability) that the peripheral neuropathy of the Veteran's lower extremities was incurred in or caused by the claimed in-service injury, event, or illness. The examiner concluded there was no clear connection between the Veteran's current complaints and her previous military service that could be established. Given the Veteran's history, as documented in the medical records and claims file and VA medical records, as well as results of the examination, and previous radiological and nerve conduction studies, the examiner concluded that there was no evidence documented in the record to support the Veteran's claim of a connection to military service. Based on the foregoing, the Board is unable to attribute the peripheral neuropathy of the Veteran's lower extremities to her military service. The fact that she was treated for multiple episodes of swelling in the lower extremities, primarily in the ankles, during service is acknowledged. However, ankle swelling, while the type of symptom capable of lay observation, is not equivalent to a diagnosis of peripheral neuropathy of the lower extremities. Merely establishing treatment for symptoms while in service is not tantamount to granting service connection because there also has to be chronic residual disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent evidence to exist). Consideration is given to the Veteran's assertion of experiencing continuous problems since service. However, as previously discussed, the Federal Circuit limits service connection for chronic disease based upon chronicity and continuity of symptomatology (i.e., service connection pursuant to 38 C.F.R. § 3.303(b)) only to those chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, supra. Peripheral neuropathy is not an enumerated disease, but the list does include "other organic diseases of the nervous system." Even if the Board were to accept that peripheral neuropathy of the lower extremities was an organic disease of the nervous system, the evidence clearly demonstrates that the peripheral neuropathy of the Veteran's lower extremities is secondary to the nonservice-connected lumbar disc disease. Moreover, the first objective clinical documentation of the onset of a bilateral leg disorder was in 2006, when a clinic note reported varicose veins in the back of the leg area with slight peripheral edema, 14 years following her discharge from service. While not a dispositive factor, the lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the Board finds that the 2013 VA opinion is highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VA examiner considered the Veteran's history of in-service swelling symptoms, the results of the personal clinical evaluation, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history. Also considered were the Veteran's beliefs that her problems with lower extremity swelling were the result of a back injury during service. Thus, the examiner had sufficient facts and data before him. As a result, he was able to address fully the salient question as to the origin of the Veteran's current peripheral neuropathy and its relationship to military service. Moreover, the claims folder contains no competent medical evidence refuting this opinion. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2013 VA examiner's conclusions. Also, in light of the other evidence of record, the Board notes that the negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). In reaching this conclusion, the Board has not overlooked the Veteran's contentions, her statements to healthcare providers, or her written statements regarding her condition. Her primary assertion is that she injured her back and legs in service and has had a continuity of symptomatology since service. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Veteran is competent to give evidence about what she sees and feels (e.g., to report ankle swelling during and after service). However, she has not established that she sustained an in-service back injury, with resultant nerve damage, after falling from a truck. Reinforcing this finding is the fact that an injury was indeed documented in service treatment records with regard to a February 1988 incident, but no mention was made of injuries to the back or legs even though rib tenderness was specified with regard to a chest wall injury. In other words, the contemporaneous service treatment records do not corroborate the Veteran's contention she sustained a back injury during active service that resulted in nerve damage to the lower extremities. Curry v. Brown, 7 Vet. App. 59 (1994) (a Veteran's version of events from the past may be of limited credibility and probative value in the absence of medical records showing treatment for the claimed disorder). Unfortunately, this contradiction diminishes the probative value of the Veteran's assertion. Moreover, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any particular training or acquired any medical expertise in evaluating and determining causal connection for peripheral neuropathy. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board recognizes the sincerity of the Veteran's arguments, but her contentions as to the etiology/onset of her claimed peripheral neuropathy are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis. Rather, they fall within the realm of requiring medical expertise, which she simply does not have. [Peripheral neuropathy is a fairly complex disorder that requires specialized training and equipment for a determination as to diagnosis and causation.] Thus, it is not susceptible of lay opinions on etiology alone. While the Veteran is competent to say that she has experienced certain symptoms, even symptoms that often may be associated with an eventual diagnosis of peripheral neuropathy, she is not in turn competent to ascribe these symptoms to disability related to her military service. This lay evidence does not constitute competent medical evidence and lacks probative value. Likewise, the single competent medical opinion in the record conclusively found no etiological relationship between service and the Veteran's later development of peripheral neuropathy. In this case, the Veteran's opinion, to the extent that it is to be accorded some probative value, is far outweighed by the more thoroughly explained and detailed opinion from the VA medical professional. Jandreau, supra & Buchanan, supra. Accordingly, the preponderance of the evidence is against this claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Service connection for peripheral neuropathy of the lower extremities is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs