Citation Nr: 1331314 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-20 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for left leg peripheral neuropathy, to include reduced sensation in the left foot (left leg disability), to include as secondary to service-connected left knee degenerative joint disease (left knee disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Appellant is a Veteran who served on active duty from July 2005 to September 2006. He also had prior reserve service with the Army National Guard. This matter comes to the Board of Veterans' Appeals ("Board") on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Lincoln, Nebraska, which denied the Veteran's claim. In May 2011, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the undersigned VLJ set forth the issue to be discussed at the hearing. The Veteran was asked to respond to questions pertinent to the requirements of service connection. The Veteran and his spouse described his symptoms including during periods of exacerbation. Furthermore, the case was remanded to obtain evidence that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In March 2013, the appeal was remanded to obtain additional medical records, examination, and opinion. The case has been returned for review. FINDING OF FACT The Veteran's left leg disability is not etiologically related to active service and is not shown by competent medical evidence to be etiologically related to service-connected left knee disability. CONCLUSION OF LAW Left leg peripheral neuropathy, to include reduced sensation in the left foot was not incurred in or aggravated by active service; is not proximately due to, the result of, or aggravated by a service-connected disease or injury; and may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In an August 2009 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The VCAA notice letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), private treatment records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. In this regard, pursuant to the Board's March 2013 remand directive, he was provided a VA compensation examination for medical opinion concerning whether the claimed disability is related to his military service. The findings were reported in a manner and format enabling the Board to address the elements needed to show entitlement to service connection. The Board finds that the VA examination, is adequate, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its March 2013 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board also requested that the RO, with the assistance of the Veteran, obtain records from his private physician. However, the Veteran failed to comply with this request. In Olson v. Principi, 3 Vet. App. 480 (1992) the Court reiterated that the duty to assist is not always a one-way street, or a blind alley; and that the veteran must be prepared to cooperate with the VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Service Connection The primary basis of the Veteran's claim is that his left leg disability is secondary to his service-connected left knee disability. In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Organic diseases of the nervous system is considered chronic, per se, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Service connection also may be granted for any disability shown after service, when all of the evidence, including that pertinent to service, shows the disability was incurred in service. 38 C.F.R. 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Here, as an initial matter, there is no disputing the Veteran meets the first requirement of any service-connection claim, which is have proof he has the claimed disability. Boyer v. West, 210 F.3d 1351, 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A May 2013 VA needle electromyographic study was noted to be abnormal and suggested involvement of the peroneal nerve. The question then becomes whether the Veteran's claimed disability of the left leg is a result of his military service, including especially his left knee disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's STRs show no complaints, treatment or diagnosis of left leg neuropathy. A September 1978 National Guard examination report noted that prior to military service he fractured his left femur in 1974. A September 1986 clinical notation on another National Guard examination indicated there was scarring from left hip surgery. At his February 2007 post-deployment medical assessment he did not report neurological abnormalities involving the left lower extremity. In fact he did not answer yes on the medical questionnaire that inquired about experiencing any tingling or numbness of the feet or hands. See Struck v. Brown, 9 Vet. App. 145 (1996). There is no diagnosis of left leg neuropathy within the one-year presumptive period following the conclusion of his service, meaning by September 2007 (since his service ended in September 2006). At VA examination in October 2007, the Veteran reported intermittent left knee pain focused over the anterior aspect of the left knee. He also had intermittent numbness that extended into the lateral left lower extremity. The Veteran also reported left foot numbness. However on neurological and motor examinations, no abnormalities were found. Another VA examination was conducted in August 2009. The Veteran described constant tingling in the left foot. He indicated that the foot went to sleep at times on prolonged sitting. On standing, he described a sensation of pins and needles that went away with walking. He did not have an existing diagnosis of peripheral neuropathy or radiculopathy. He denied any falls. He also denied having an intervertable spine disorder. The Veteran would not allow examination of his feet. Despite this, the examiner found that it was less likely than not that any left leg peripheral neuropathy was related to his left knee condition. He noted that the Veteran did not have a history of a diagnosis peripheral neuropathy. She indicated that the symptoms he described were more consistent with a circulatory issue versus impaired function. Regardless, she found that condition could not be caused by arthritis in the knee. During the pendency of the appeal, he twice submitted statements from his private physician, L. M., M.D., who indicated that he had been treating the Veteran for his left leg and "general health." In an August 2010 letter, Dr. L.M. stated that, based on a review of the Veteran's available medical records, as well as his own clinical notes and examination, "it is likely he has left leg peripheral neuropathy as well as some osteoarthritis in his left knee with the sensation of tingling down to the foot on that leg." He added that this "may be due to his left knee joint problem." He indicated that the left knee and the neuropathy are service-related and he indicated he based his opinion on a physical examination and his training and experience as a physician. There are a line of precedent cases discussing the lesser probative value of opinions like this that are equivocal, which essentially state that it is possible the condition at issue is attributable to the Veteran's military service or service-connected disability. And these cases indicate that, while an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology, a doctor's opinion phrased in terms tantamount to "may" be related to service is an insufficient basis for an award of service connection because this is for all intents and purposes just like saying the condition in question just as well "may or may not" be related to service. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Regardless, as this opinion conflicts with other evidence on file, the Board remanded the claim in order to obtain outstanding treatment records from Dr. L.M. However, the Veteran failed to assist in obtaining these records. In light of the Veteran's refusal to have his feet examined in August 2009 another examination was conducted in May 2013. The VA examiner, Dr. I.W., stated that based on his examination as well as comments from previous healthcare professionals, it appeared that the Veteran has a peripheral neuropathy of the distal left lower extremity and foot. However, despite his complaints in the past, the cause has remained unknown. The Veteran reported a 5-year history of intermittent left foot and extreme left lower leg (just above the ankle) numbness that usually occurred with sitting. The examiner noted the Veteran's 1974 fracture of the left femur that occurred when he was a teenager (i.e. not during service). This was repaired locally with rod placement and removal. The examiner found that this injury must be considered in a differential diagnosis because it is a major procedure which could affect the musculature and sensation about the left lower extremity. However according to the Veteran's comments, his neurological symptoms only began five years previously, approximately in 2008 (i.e. well after service separation). The examiner found this fact significant in forming his conclusion that his left leg neuropathy was unrelated to military service. He also concluded that his left leg neuropathy was not related to his service-connected left knee disability because it did not seem to be localized to the knee. Electromyographic findings were considered abnormal. However, this abnormality was determined to reveal peroneal nerve involvement. With this finding, the VA examiner then noted that the electrodiagnostic testing was of no assistance in delineating the cause of left leg neuropathy. In deciding this claim, the Board must analyze the probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons and bases for rejecting or accepting any material evidence. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Obviously, this responsibility is more difficult when, as here, medical opinions diverge. And, at the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). With this in mind, and after considering the evidence both for and against the claim, the Board finds the statements of the private physician, Dr. L.M. in August 2010, less persuasive in light of the overall record and the opinion of the VA physician, Dr. I.W., and to some extent the opinion of the physician who conducted the October 2007 examination. Besides only giving an equivocal explanation, in reporting his opinion, Dr. L.M. did not submit any remarks supportive of his conclusion or discuss the criteria on which he had based his opinion. And while it is presumed his diagnosis of left leg peripheral neuropathy was in accordance with accepted medical standards, this does not negate the need for him to actually discuss or explain how the left leg neuropathy is a complication of the left knee disability, that is, either caused or aggravated by the left knee disability. Especially since Dr. I.W. who evaluated the Veteran for compensation purposes in May 2013 conducted electrodiagnostic testing and gave a comprehensive report, in comparison, as to why the Veteran's left leg neuropathy is not directly, presumptively, or secondarily related to his military service. And this is where most of the probative value of an opinion is derived, from the discussion of its underlying rationale. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). This clinician who indicated the Veteran's left leg neuropathy could be a complication of his left knee disability did not relate any clinical data or other evidence supporting this conclusion, whereas Dr. I.W. who concluded unfavorably cited specific clinical findings (such as electrodiagnostic testing) and history in the records he had reviewed and considered. It is equally unclear whether and to what extent Dr. L.M. provided the Veteran health care and evaluations, as the Veteran has been nonresponsive to request for his records. But, regardless, there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors that have had occasion to treat or evaluate the Veteran over time. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993). Indeed, to the contrary, although the Board may not ignore the opinions of treating clinicians, the Board is free to discount the probative value of these statements so long as the Board provides adequate reasons and bases for doing this. Sanden v. Derwinski, 2 Vet. App. 97, 100-01 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The VA compensation examiners in this particular case thoroughly considered the possibility that the Veteran's current left leg neuropathy had its onset in service, within the one-year presumptive period following service, or alternatively was caused or aggravated by the service-connected left knee disability, but ultimately rejected these notion based on reasonable medical principles that were supported by the medical and other evidence. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position). For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER Service connection for left leg peripheral neuropathy to include as secondary to service-connected left knee degenerative joint disease is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs