Citation Nr: 1330607 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-14 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy in the left upper extremity, to include as due to Agent Orange exposure, or as secondary to service-connected diabetes mellitus or Parkinson's disease. 2. Entitlement to service connection for peripheral neuropathy in the left lower extremity, to include as due to Agent Orange exposure, or as secondary to service-connected diabetes mellitus or Parkinson's disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran had active service from October 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his spouse testified in support of these claims at a hearing before the undersigned at the RO in May 2008. In October 2008 and October 2010, the Board remanded the claims of entitlement to service connection for peripheral neuropathy to the agency of original jurisdiction (AOJ). In October 2010, the Board also found that a claim to reopen a claim for service connection for diabetes mellitus (diabetes) was intertwined with the claims for peripheral neuropathy, to include as due to Agent Orange exposure, and directed the AOJ to adjudicate such claim. The Veteran has now been granted service connection for diabetes, effective since May 14, 2008. In addition, the Veteran has been granted service connection for Parkinson's disease, as well as several complications of Parkinson's disease, on a presumptive basis due to Agent Orange exposure. As pertinent to the issues on appeal, the Veteran was granted service connection for Parkinson's disease of the right lower leg and of the right upper extremity, both effective as of August 1, 2005, which were recharacterized as loss of use of the right arm and leg associated with Parkinson's disease (warranting a 100 percent rating) effective October 17, 2011. Only the issues of entitlement to service connection for peripheral neuropathy of the left upper and lower extremities remain pending on appeal. Both the paper claims file and the Virtual VA paperless claims file were considered by the AOJ in adjudicating these issues, and they will also be considered by the Board herein. Moreover, service connection is granted herein for the claimed disabilities, and no further development is necessary. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy in the left upper extremity was proximately aggravated by his service-connected Parkinson's disease. 2. The Veteran's peripheral neuropathy in the left lower extremity was proximately aggravated by his service-connected Parkinson's disease. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy in the left upper extremity, as secondary to Parkinson's disease based on aggravation, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2006 & 2012). 2. The criteria for service connection for peripheral neuropathy in the left lower extremity, as secondary to Parkinson's disease based on aggravation, have been met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he has peripheral neuropathy in the left upper and lower extremities due either to Agent Orange exposure during service in Vietnam, or as secondary to his service-connected diabetes or Parkinson's disease. The Board's decision to grant service connection for peripheral neuropathy of the left upper and lower extremities on a secondary basis constitutes a full grant of the benefits sought on appeal. As such, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. To the extent this decision could be construed as less than a full grant, the Veteran was advised of the evidence and information necessary to establish service connection, including on a direct and secondary basis, as well as due to herbicide exposure, on several occasions. There is no indication or allegation of insufficient notice. All pertinent, identified records have been obtained, including service treatment records, VA and private treatment records. The Veteran was afforded several VA examinations and the Board also sought expert medical opinions from a neurologist through the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2013). The Veteran provided an additional medical opinion in support of his claim in August 2013 that, in combination with the medical opinions of record, has resulted in a grant of service connection herein. No further notice or assistance could result in a more favorable outcome in this case. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). In certain circumstances, service connection may be granted on a presumptive basis as a chronic disease (such as for organic disease of the nervous system), or for Vietnam veterans based on presumptive exposure to herbicides, including Agent Orange (such as for early onset peripheral neuropathy). See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; 78 Fed. Reg. 54,763 (September 6, 2013). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended effective October 10, 2006. Under the current version, service connection may not be awarded based on aggravation of a nonservice-connected disability unless a pre-aggravation baseline level of disability has been established to allow a comparison to the current level of disability. See 38 C.F.R. § 3.310(b) (2012). Although the stated intent of this change was to implement the requirements set forth in Allen, the Board finds that the amendment amounted to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Here, the Veteran filed his claims on appeal prior to October 2006. As such, the Board has applied the prior version of 38 C.F.R. § 3.310, which does not require the establishment of a baseline level of disability before an award of service connection may granted based on aggravation, as it is more favorable to the Veteran's claims. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. If the evidence of record supports the claim or is in relative equipoise, the claimant will prevail; however, if the preponderance of the evidence is against the claim, the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Here, in addition to the Veteran's statements in support of his claims, evidence considered by the AOJ includes service treatment records, VA and private treatment records dating from 1968 to the present, several private opinion letters, and VA examination reports with medical opinions. As the medical evidence of record was not sufficient for adjudication, the Board requested opinions from neurologists with the VHA, resulting in three reports. The most recent VHA opinion from a neurologist, in June 2013, was that the available description of symptoms and clinical testing did not conclusively establish whether the Veteran actually has peripheral neuropathy, diabetic or otherwise, as opposed to alternative explanations for his "neuropathic" symptoms and findings. Nevertheless, when resolving all reasonable doubt in the Veteran's favor, the Board finds that there is sufficient evidence to establish a current disability of peripheral neuropathy in the left upper and lower extremities. Specifically, the Veteran's previous private treating neurologist, Dr. Reyna, diagnosed peripheral neuropathy (among other disorders) in January 2004 based on the Veteran's symptoms at that time and a review of his prior medical history that was generally consistent with his treatment records. Further, the Veteran's current private treating neurologist, Dr. Bradley, agreed with that diagnosis and stated that the Veteran's clinical pattern over the last five years was consistent with a diagnosis of neuropathy. The Board finds that these opinions are sufficient to establish a current diagnosis of peripheral neuropathy for the purposes of this decision. Turning to the question of etiology, the evidence clearly shows that the Veteran's claimed neurological symptoms began many years after his separation from service in 1967. For example, the Veteran testified during the May 2008 Board hearing that he began to have problems with the arms and legs in the 1980s. This is consistent with available VA and private treatment records dating from 1968 forward. There is no reference to any problems with the arms or legs in private records dated from 1968 to 1984, or during a VA examination in December 1971. Rather, the Veteran first complained of symptoms in the upper or lower extremities in the 1980s. The Veteran had two significant injuries after service: a motor vehicle accident in January 1983 and a work injury in December 1985. Treatment records from the time of the 1983 vehicle accident showed a head injury with a diagnosis of cerebral contusion, although a brain scan and x-rays of the skull were negative. A July 1983 follow-up record showed complaints of backache and pain in right leg in March 1983, now with neck and shoulder stiffness, but essentially normal examination. The December 1985 work injury led to benefits and treatment through workers' compensation. A workers' compensation report notes that the Veteran reinjured his low back in March 1986, with a severe lumbar sprain with low back pain and right arm and left leg pain. A May 1986 private EMG report noted that the Veteran hurt his neck and back in December 1985 and was getting progressively worse, with pain and numbness in the neck, back, both lower extremities, and the right upper extremity. The Veteran had two lumbar spine fusions and a cervical spine fusion from 1986 to 1988. VA and private medical records show that he has been treated for progressive complaints in the upper and lower extremities since then. There is no competent evidence linking the current peripheral neuropathies directly to service. The Veteran has not asserted a direct connection other than through herbicide exposure, and he is not competent in this regard, as the etiology of neurological disorders is a complex question that is not with a layperson's realm of knowledge and requires specialized knowledge, training, or experience. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, there is no indication of any symptoms during service, or for many years thereafter. As such, service connection cannot be granted on this basis. Similarly, service connection cannot be granted on a presumptive basis under the provisions for chronic disease. Although peripheral neuropathy could qualify as an organic disease of the nervous system, it did not manifest to a compensable degree within one year after service as required. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Further, although the Veteran had presumed exposure to herbicides, such as Agent Orange, during his service in Vietnam, he does not have a disability that is presumed to be service-connected as a result of such exposure. The Veteran's peripheral neuropathy does not qualify because it first manifested nearly 20 years after service. Early onset peripheral neuropathy would be subject to presumptive service connection on the basis of herbicide exposure, but only if manifested to a compensable degree within one year of exposure. 78 Fed. Reg. 54,763 (Sept. 6, 2013) to be codified at § 3.309(e)). As just noted the evidence is against a finding of peripheral neuropathy until many years after in-service exposure. Additionally, there is no competent evidence otherwise linking the current disorders to herbicide exposure in service. Rather, there are several VA opinions indicating that the current disorders are not related to service, with supporting rationale. See December 2008 VA examination report, May 2011 VA examination addendum report, February 2013 VHA report. The Veteran submitted a 2004 partial medical article indicating that peripheral neuropathy "may" be caused by exposure to toxins (among other etiologies), as well as several medical opinions in this regard. See November 2008 record from Dr. Chandler; May 2008 record from Dr. Bradley. Such opinions are too speculative in nature, using terms such as "may", "medically plausible", and "could", and are insufficient to establish a nexus. Bostain v. West, 11 Vet. App. 124, 127 (1998) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). As such, service connection is not warranted based on herbicide exposure. Moving to secondary service connection, the currently available evidence does not establish a current diagnosis of diabetic neuropathy, as opposed to general peripheral neuropathy. In this regard, the June 2013 VHA neurologist's report explains in detail why the medical evidence is conflicting with respect to the Veteran's symptoms and the need for additional testing to determine if there is "diabetic neuropathy." Further, the July 2004 VA examiner recorded that there were no clinical findings at that time that could be attributed to the recently diagnosed diabetes. Although a May 2010 VA examiner stated that the Veteran had diabetic neuropathy that was the same as his peripheral neuropathy, when clarification was sought, another VA examiner stated in a May 2011 report that there was "no objective evidence whatsoever" that the Veteran's neuropathy was caused by or related to his service-connected diabetes. In his August 2013 letter, Dr. Bradley only referred to neuropathy in general, indicating that he agreed with Dr. Reyna's 2004 diagnosis of peripheral neuropathy, with no specific reference to diabetic neuropathy. As such, the evidence does not show diabetic neuropathy. Moreover, the evidence reflects that the Veteran's symptoms in the upper and lower extremities predated his diagnosis of diabetes by many years. As noted above, his symptoms generally began in the 1980s and progressed to varying degrees since that time. The Veteran reported during a July 2004 VA examination that he had been diagnosed with diabetes by a family care provider about a month earlier. The February 2013 VHA neurologist's report explains in detail that the diabetes less likely than not caused the Veteran's peripheral neuropathy. The specialist noted that peripheral diabetic neuropathy "could" predate a diagnosis of diabetes, but it would be "highly unusual" for neuropathy to appear more than 2-3 years before the diagnosis of diabetes. There is no competent evidence of record indicating otherwise, and the Board finds this opinion to be highly probative, as it is supported by clear rationale and based on an accurate medical history. As such, service connection cannot be granted as secondary to diabetes based on causation. Two VHA neurologists and Dr. Bradley opined that "if" the Veteran had clinically shown diabetic neuropathy, then it would likely have aggravated the preexisting peripheral neuropathy. Nevertheless, as the evidence does not establish diabetic neuropathy, these opinions do not establish entitlement to service connection for the claimed disabilities due to aggravation by diabetes. With regard to Parkinson's disease, the evidence also reflects that the Veteran's neurological symptoms in the extremities predated this diagnosis by many years. For example, the Veteran's current private treating neurologist, Dr. Bradley, stated in a July 2006 record that the Veteran's peripheral neuropathy was long-standing and predated the onset of his Parkinsonism by years. The February 2013 VHA neurologist's report also explained in detail that Parkinson's disease less likely than not caused his peripheral neuropathy. The specialist noted that Parkinson's disease was usually not associated with peripheral neuropathy, and this did not appear to be a case with multiple symptoms atrophy leading to neuropathy. Again, there is no competent evidence of record indicating otherwise, and the Board finds this opinion to be highly probative, as it is supported by clear rationale and based on an accurate medical history. In contrast, the Board notes that Dr. Bradley indicated in an August 2005 record that the Veteran had right-sided tremor affecting the arm and leg that were more likely Parkinsonism of central origin than a symptom of his known peripheral neuropathy. Service connection has already been granted for the right-sided extremities as secondary to Parkinson's disease. Dr. Bradley did not offer such an opinion as to the Veteran's left-sided symptoms at that time. As such, service connection is not warranted for left-sided peripheral neuropathy as secondary to Parkinson's disease based on proximate causation. Nevertheless, in a June 2013 report, the most recent VHA neurologist opined that signs and symptoms arising from that any preexisting neuropathy (including peripheral neuropathy) could be functionally aggravated by Parkinson's disease. He explained that these would include motor phenomena such as poor gait, poor balance, weakness, and incoordination, although Parkinson's disease would be unlikely to aggravate sensory symptoms. The VHA specialist emphasized that Parkinson's disease would aggravate preexistent motor dysfunction of any cause such as from radiculopathy or myelopathy. The specialist had previously noted that earlier private treatment records referred to radiculopathy and myelopathy as related to the Veteran's lumbar and spine surgeries, as well as peripheral neuropathy. In an August 2013 letter, the Veteran's current private treating neurologist, Dr. Bradley, essentially summarized the findings and opinions of the three reports from VHA specialists. Further, Dr. Bradley opined that both neuropathy and Parkinsonism are contributing to the Veteran's disability, and the Parkinson's disease is contributing to a much greater degree. This is consistent with the June 2013 report from the VHA neurologist, and supports a finding of aggravation. The Board finds that the June 2013 VHA specialist's report and the August 2013 letter from Dr. Bradley are highly probative. They are detailed, based on an accurate factual history that is consistent with the other evidence of record, and contain sound reasoning for the opinions offered. Although a VHA neurologist indicated in a March 2013 addendum report that he did not find evidence that the Veteran's peripheral neuropathy was worsened by his Parkinson's disease, the opinion carries little weight because there was no explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported with an analysis that can be considered and weighed against contrary opinions). Accordingly, the benefit-of-the-doubt doctrine applies, and all reasonable doubt will be resolved in the Veteran's favor. Thus, the evidence establishes that his peripheral neuropathies of the left upper and lower extremities are secondary to his service-connected Parkinson's disease. See 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for peripheral neuropathy in the left upper extremity is granted. Service connection for peripheral neuropathy in the left lower extremity is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs