Citation Nr: 1330835 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-17 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for neuropathy of the right lower extremity. 2. Entitlement to service connection for neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 RO decision, which denied claims for service connection for neuropathy of the right and the left lower extremities. In July 2011, a videoconference hearing was held at the Muskogee, Oklahoma RO. A transcript of that proceeding has been associated with the claims folder. The Board in October 2011 granted entitlement to Chiari malformation. The claim for service connection for neuropathy of the right and the left lower extremities, to include as secondary to Chiari malformation was remanded to the RO for additional development. FINDING OF FACT Peripheral neuropathy of the right and the left lower extremities was not manifest in service or within one year of separation, is not shown to have developed as a result of an established event, injury, or disease during active service, and is not proximately related to or aggravated by a service-connected disability. CONCLUSION OF LAW Peripheral neuropathy of the right and the left lower extremities was not incurred in or aggravated by service, service connection for peripheral neuropathy of the lower extremities may not be presumed based on the one year presumption for a chronic disease, and it is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a July 2008 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The case was adjudicated in October 2008. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). The claims folder contains the Veteran's service personnel and treatment records, multiple lay statements from friends and family, as well as all identified and available post-service treatment records from VA Medical Center (VAMC) and private providers have been associated with the claims file. A review of Virtual VA does not reveal any additional documents pertinent to the present appeal. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. §5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA examination in January 2012 to determine the etiology of his claimed right and left lower extremities peripheral neuropathy disorders and whether such were related to service or otherwise secondary to his service-connected Arnolds Chiari malformation. The Board finds that the VA examination is adequate because, as shown below, it was based upon full and accurate review of the Veteran's pertinent medical history. In addition, the examiner provided a July 2012 addendum to further clarify his opinion. Moreover, the VA examiner considered the Veteran's lay assertions and current complaints, described the claimed disorders in sufficient detail, and offered an opinion based on all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. Additionally, in July 2011, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c) (2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned enumerated the issues on appeal. Also, information was solicited regarding the nature and etiology of his right and left lower extremities neuropathy disorders. In this regard, the Veteran's contentions regarding direct and secondary service connection were discussed. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been associated with the claims file. In this regard, an opinion regarding the etiology of the Veteran's claimed disorders was obtained on remand in October 2011. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims for service connection. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c) (2) and that the Board may proceed to adjudicate the claims based on the current record. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A.1154 (a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). III. Background The Veteran is seeking entitlement to service connection for neuropathy of the right and left lower extremities, to include as secondary to Chiari malformation with headaches, blurred vision, vertigo, and cerebellar ataxia. Throughout the course of his appeal, the Veteran has indicated that he has experienced symptoms relating to neuropathy since his active duty service. He has also indicated that his neuropathy could be secondary to his Chiari malformation. The service entrance examination in October 1965 and the September 1967 separation examinations note normal neurological finding of the lower extremities. A review of the service treatment records reveals no complaints, treatment, or diagnosis of neuropathy of the right and left lower extremities. In a July 2004 VA treatment record, the Veteran reported that his feet have been burning over the last 6 months. No nerve deficits were evaluated. In a May 2008 VA treatment record, the Veteran reported that some members of his family could not run, his mother specifically. He was noted as having hereditary neuropathy. In a December 2008 letter, Dr. M. Faubion noted the Veteran presented with a history of difficulty with balance which reportedly began during service in 1965. This physician noted concern that the symptoms were related to a neurological disorder. In an April 2009 VA treatment record, the Veteran reported that he has had a long history of distal neuropathy and apparently his mother has the same thing. He was diagnosed with distal familial neuropathy. In a May 2009 private medical record, Dr. T. Lewellen noted that he listened to the Veteran's description of his medical condition and diagnoses, reviewed his VA medical records, and read eye witness reports of the Veteran's symptoms while in the military and afterward. He opined that the Veteran's lower peripheral neuropathy caused his difficulty in running while in the military. He further indicated that, if it had a hereditary onset, that it was aggravated by the rigor of military training. The Veteran's present neuropathy is most likely a continuation of the same neuropathy that he had in the military. In a July 2009 VA treatment record, the Veteran reported gait problems since he was in the military. He was also noted as having hereditary peripheral neuropathy. An August 2009 VA treatment record noted that an EMG study revealed the Veteran had sensory neuropathy. He reported burning pain and tingling in his feet for the last 4 to 5 years. The examiner noted that the Veteran's sensory neuropathy may be related to B6 use, and it was recommended that he stop B6 supplements. In a September 2009 VA examination, the examiner noted the Veteran served during the Vietnam war but was not deployed to Vietnam. He has been diagnosed with Arnold Chiari malformation type I, Meniere's disease and benign positional vertigo. He was seen by Dr. Lewellen for his balance issues and she was concerned that this was related to a neurologic disorder. He was then seen at the Muskogee VAMC in May 2008 and diagnosed with peripheral neuropathy. Nerve conduction studies were fine but he had some decreased sensations in the lower extremities, no major issues were noted during a July 2008 PCP evaluation at the VAMC. In a January 2012 VA neuropathy examination, the examiner noted the Veteran had difficulty with balance beginning during service. He reported burning in his feet and difficulty with balance in darkness for the past nine years. An August 2009 EMG test revealed mild sensory peripheral neuropathy. The examiner noted abnormal lower extremities. His peripheral neuropathy impacted his ability to work as a result of his difficulty with balance. The examiner opined that peripheral neuropathy was not caused or aggravated by service or by his Arnold Chiari malformation. The EMG/NCV showed an axonopathic pure sensory polyneuropathy and superimposed mild left ulnar and medial neuropaties. None of these were related to his Arnold Chiari malformation as they involve different areas of the nervous system. In a July 2012 addenda to the examination, the examiner wrote: I have reviewed his C-file and my past C&P exam dated January 6, 2012. He was noted to have a mild polyneuropathy at that time. I am asked at this time, whether his peripheral neuropathy of the lower extremities was caused or aggravated by his active duty service. After reviewing this from the history, his symptoms, would could be possibly related to peripheral neuropathy, have been there only 9 or 10 years. These include burning feet and difficulty with balance in the dark. His EMG done on August 2009 showed only a very mild sensory peripheral neuropathy. I have reviewed his service medical records. He was in the service in the late 1960s. I do not see any mention of symptoms related to peripheral neuropathy then, or any exposure or other causes which would explain his peripheral neuropathy at this time. For this reason, I do not think his peripheral neuropathy of the lower extremities was caused or aggravated by his active duty service. IV. Analysis After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that peripheral neuropathy of the right and left lower extremities did not have its onset in service. The weight of the evidence demonstrates no in-service injury or disease of the peripheral nerves or even chronic symptoms of peripheral nerve disorder during service. The service treatment records reveal no symptoms of peripheral neuropathy of the right and left lower extremities. The September 1967 service separation examination report does not indicate any peripheral neuropathy. Indeed, the lower extremities were explicitly found to be normal. The clinical examination at service separation does not reflect a diagnosis of peripheral neuropathy. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that symptoms of peripheral neuropathy of the right and left lower extremities have not been continuous since service separation in November 1967. As indicated, the service separation examination report does not reflect any complaints consistent with peripheral neuropathy and no diagnoses suggestive of peripheral neuropathy. Indeed, the lower extremities were found to be normal. Following service separation, the evidence of record shows no complaints, diagnosis, or treatment for any peripheral neuropathy of the lower extremities until approximately May 2008. The evidence shows that a peripheral neuropathy of the right and left lower extremities first manifested many years after service, notably over four decades after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). The Board also finds that the weight of the evidence demonstrates that peripheral neuropathy of the right and left lower extremities did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no symptoms of peripheral neuropathy during the one year period after service, and no diagnosis or findings of peripheral neuropathy of any severity during the one year post-service presumptive period. The evidence shows the first signs of peripheral neuropathy of the right and left lower extremities occurred in about 2008, and the Veteran does not assert peripheral neuropathy in the first post-service year. For these reasons, the Board finds that peripheral neuropathy of the right and left lower extremities, first diagnosed over three decades after service separation, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for peripheral neuropathy of the upper and lower extremities are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309(a). In so finding, the Board acknowledges the May 2009 opinion by Dr. Lewellen, that noted that after listening to the Veteran's description of his medical condition and diagnoses, reviewed his VA medical records, and read eye witness reports of the Veteran's symptoms while in the military and afterward; she opined that the Veteran's lower peripheral neuropathy, if it had a hereditary onset, it was aggravated by the rigor of military training, and his present neuropathy is most likely a continuation of the same neuropathy that he had in the military. However, an evaluation of the probative value of medical opinion evidence is based on the medical expert's knowledge and skill in analyzing the data, and the medical conclusion reached. The weight to be attached to such opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not, and the extent to which, they considered prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). For the reasons set forth below, the Board is thus satisfied that the January 2012 VA examiner's opinion is adequate for deciding this appeal and is of greater weight than the opinion offered by Dr. Lewellen. In so finding, the Board notes that the private physician failed to offer any explanation or rationale for the conclusion that the Veteran's present neuropathy is most likely a continuation of the same neuropathy that he had in the military. To the contrary, as noted above, Dr. Lewellen after listening to the Veteran's description of his medical condition and diagnoses, reviewed his VA medical records, and read eye witness reports of the Veteran's symptoms while in the military and afterward has stated that the Veteran's present neuropathy is most likely a continuation of the same neuropathy that he had in the military. However as noted in the records, there is no evidence of any treatment or diagnosis of peripheral neuropathy of the lower extremities during service or for approximately 41 years after service. Given the erroneous basis for this opinion, and in light of the reasoned opinions offered by the VA examiner in January 2012 and the July 2012 addendum to the examination, which relied on consideration of the Veteran's entire medical history as well as the examiner's medical knowledge and expertise, the Board finds the private physicians' statements concerning the etiology of the Veteran's peripheral neuropathy of the right and left lower extremities to be of less probative value. See Gabrielson, 7 Vet. App. at 40. The January 2012 VA reviewer, by contrast, provided a report that considered the Veteran's history, set out findings in detail, and contained fully articulated reasons for the conclusions. Importantly, the January 2012 VA examiner considered the Veteran's complete medical history, including the onset of his peripheral neuropathy of the right and left lower extremities and his history of Chiari malformation problems, in arriving at the conclusion that the Veteran's peripheral neuropathy of the right and left lower extremities was not etiologically linked to or aggravated by his service-connected Chiari malformation disorder. For these reasons, the Board concludes that the July 2012 VA examiner's opinion is of greater weight. The Board has considered the Veteran's contentions that his peripheral neuropathy of the right and left lower extremities is related to his service, or to his service-connected Chiari malformation. The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion or render a diagnosis for a complex etiological question such as this, which requires testing and medical expertise to diagnose and ascertain etiology. The Board notes that although the Veteran is competent to report symptoms, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of his claimed peripheral neuropathy of the right and left lower extremities on a direct or a secondary basis. This is because a pathology which is not readily observable, such as that possibly originating from nerves, is one which falls more into the realm of requiring medical expertise to diagnose and link to a specific event or period, rather than lay expertise. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as the etiology of peripheral neuropathy of the right and left lower extremities in relation to an additional disability. See Bostain v. West, 11 Vet. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reaching its 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 service connection for peripheral neuropathy of the right and left lower extremities, that doctrine is not helpful to the Veteran in this instance. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs