Citation Nr: 1341067 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 07-34 772A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back, to include as secondary to the service-connected prostate cancer, status post prostatectomy. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1966 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's initiated an appeal of the decision by filing a notice of disagreement in May 2007, after which the RO issued him a statement of the case in September 2007. The Veteran perfected his appeal to the Board with the filing of a substantive appeal in November 2007. In September 2010, the Board remanded the case to the RO to afford the Veteran the opportunity to appear at a hearing. In April 2012, he appeared at the RO and testified at a hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In August 2012, the Board remanded the case to the RO for additional evidentiary and due process development. (Also at that time, the Board promulgated a decision on other issues on appeal to the Board.) The case has been returned to the Board for its further consideration. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. There is no competent medical evidence of current nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back. 2. Nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back was not present during active duty or manifested to a compensable degree within one year from the date of separation from service in March 1970; and any neurological disability affecting the bilateral feet, hips, thighs, and lower back, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event of service origin, including service-connected prostate cancer, status post prostatectomy. CONCLUSION OF LAW Service connection for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back, to include as secondary to the service-connected prostate cancer, status post prostatectomy, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in October 2006. The Veteran was notified of the evidence needed to substantiate claim of service connection for nerve damage affecting the feet, hips, thighs, and lower back; that VA would obtain service records, VA records and records of other Federal agencies; and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the elements of a service connection claim, including the effective date of an award and the degree of disability. Under 38 U.S.C.A. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO afforded the Veteran an opportunity to testify at a hearing before the undersigned Veterans Law Judge in April 2012. In that regard, the United States Court of Appeals for Veterans Claims (Court) in Bryant v. Shinseki, 23 Vet. App. 488 (2010), held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts 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. Here, during the Board hearing in April 2012, the Veterans Law Judge indicated that the hearing would focus on the issue of entitlement to service connection for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back, to include as secondary to the service-connected prostate cancer status post prostatectomy, and noted the elements of the claim that were lacking to substantiate the claim. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the Veterans Law Judge asked questions to ascertain the etiology of the claimed nerve damage. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The RO has also obtained the Veteran's service treatment records and pertinent post-service treatment records, including those from VA. The Veteran has not identified any additional pertinent evidence that is available and remains outstanding. Further, the Veteran was afforded VA examinations in July and August 2007, December 2009, and September 2012. Taken together, the examinations and medical opinion are adequate for rating purposes. In particular, the 2012 examiner considered the entire record, noted the history of the claimed disability, and conducted a thorough physical examination of the Veteran, with notation of all clinical findings necessary for a proper determination in this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). In short, VA's duty to assist has been met, and it is not prejudicial for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Legal Principles and Criteria Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Where a veteran served 90 days or more of continuous, active service and a chronic disease, such as organic diseases of the nervous system, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue and the record does not show that the claimed disability was incurred in combat; thus, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis The Board has reviewed all of the evidence of record (including the Veteran's claims file and Virtual VA), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran claims that service connection is warranted for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back. He particularly alleges that he has a neurological disability that is attributable to his service-connected prostate cancer. He testified that after his prostatectomy (in October 2005), he began to experience numbness and pain in his feet, hips, thighs, and lower back. The Veteran served on active duty from March 1966 to March 1970. Service treatment records do not show any complaint, finding, history, diagnosis, or treatment for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back. On the basis of the service treatment records alone, a neurological disability affecting the feet, hips, thighs, and lower back was not affirmatively shown to have been present in service. Nor has the Veteran specifically argued that it was present during service. Thus, service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (showing inception in service) is not established. After service, the earliest record showing the presence of a possible neuropathy in the lower extremities was dated in 2005. VA outpatient records dated in August 2005 indicate that the Veteran complained of leg pain bilaterally, which started two months previously. He described the pain as a burning sensation on his thigh, accompanied by weakness. He denied ever having had such pain. It was noted that he had recently been started on a medication (Zocor) in May. The diagnosis was lower extremity pain/weakness, considered to be secondary to Zocor. In December 2005, after the Veteran underwent a prostatectomy in October 2005, there was another diagnosis of lower extremity pain and weakness; notably, the lower extremity symptoms had not changed after Zocor was discontinued. A subsequent EMG/NCV of the lower extremities that month was within normal limits, except for a slightly low amplitude on the left peroneal motor response. In May 2006, the Veteran reported a long history of low back pain with radiation into both thighs and hips (he was noted to have had a history of muscle pains after starting statins but the discontinuance of the medication did not resolve his pain). In August 2006, it was noted that the Veteran appeared to have a mild crush injury to the left peroneal nerve and he was referred to physical therapy for rehabilitation. In October 2006, there were diagnoses of injury to peroneal nerve and disturbance of skin sensation (on sensory evaluation, there was distal loss of all modalities). In October 2006 and January 2007, the Veteran was seen with bilateral thigh muscle pain of at least a year duration. His chronic thigh pain was noted again in March 2007. In April 2007, he complained of mild left foot drop. A VA examiner in July 2007 diagnosed mild weakness in the proximal thigh muscles on both sides. In August 2007, the Veteran complained of ongoing pain and weakness in both thigh muscles, pain in the sacroiliac joints, and numbness in the feet from the arch to the end of the toes (of a 1-2 year duration). In November 2007, there was mild weakness on dorsiflexion of the right foot. In December 2009, a VA examiner's diagnosis was that of evidence of a predominantly sensory neuropathy in both lower extremities in a stocking distribution. The foregoing documentation of neurological complaints and diagnoses is well beyond the one-year presumptive period following separation from service in 1970, for organic disease of the nervous system as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As for service connection for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back, based on a post-service initial diagnosis under 38 C.F.R. § 3.303(d) after service, there is no competent evidence - lay or medical - that any neurological disability affecting the bilateral feet, hips, thighs, and lower back, first documented after service beyond the one-year presumptive period, pertaining to a chronic disease, is otherwise related to an injury, disease, or event of service origin. 38 C.F.R. § 3.304(d). Nor has the Veteran specifically argued that he has a present neurological disability that is traceable to his period of service. Thus, the remaining, and key, question in this case is whether the claimed nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back was caused by or aggravated by the service-connected prostate cancer, status post prostatectomy, as specifically alleged, under the theory of secondary service connection. 38 C.F.R. § 3.310. To the extent the Veteran asserts that there is an association between current nerve damage and his service-connected disability, the opinion of the Veteran as a lay person is limited to inferences that are rationally based on his perception and does not require specialized education, training, or experience. As a lay person, the Veteran is not competent to diagnose a neurological disability affecting the bilateral feet, hips, thighs, and lower back based on personal observation, or to express an opinion on the origin or cause of a neurological disability, so any inference based on what is not personally observable cannot be competent lay evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Further, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the question of secondary service connection. 38 C.F.R. § 3.159. Therefore, his statements regarding a relationship between the claimed nerve damage and his prostate disability are rejected as competent evidence to establish secondary service connection. The record, however, contains various VA medical opinions that are based on a review of the onset, clinical course, and status of the Veteran's neurological condition, and the VA examiners are qualified by education and training to offer a medical opinion on the etiology of any neurological disability affecting the feet, hips, thighs, and lower back. 38 C.F.R. § 3.159. As such, they do comprise competent medical evidence of record to consider in addressing the question of secondary service connection. In July and August 2007, the Veteran underwent VA neurological and genitourinary examinations. The impression of the neurological examiner in July 2007 was that the Veteran's mild weakness in the proximal thigh muscles bilaterally "could represent a mild peripheral neuropathy related to his radical prostate surgery." The examiner further opined that another consideration was that the Veteran's degenerative disc disease (demonstrated on MRI of the lumbar spine) was a contributing factor. He remarked that "the relative importance of each of [the factors] cannot be determined without resort to mere speculation." Otherwise, the examiner stated that there was no neurologic abnormality that could be attributed to the Veteran's prostate surgery in 2005. The opinion of the genitourinary examiner in August 2007 was that it was less likely than not that the Veteran's prostatectomy could have caused his problems in the arms, feet, legs, and hip. She observed that the Veteran's significant degenerative joint disease "was probably more likely the cause of these problems." In any case, she could not completely rule out that the Veteran's peroneal nerve would not have been injured during the prostatectomy, depending on how he was strapped to the bed, but she felt this was "much less likely and has no effect on the other leg or his upper arms." Then, in December 2009, the same VA examiner who conducted the previous neurological examination indicated that the Veteran reported that since his prostate surgery, he noticed numbness and tingling in the sole of his left foot and to a lesser extent his right foot, along with a variety of fleeting pains in the thighs, legs, arms, and chest. Following examination, the examiner opined that there was evidence of a predominately sensory neuropathy in both lower extremities in a stocking distribution, but that the neuropathy was "nonspecific and could be related to a variety of disturbances including a remote affect of prostate cancer." As the foregoing VA opinions were inconclusive and couched in speculative terms, the Veteran underwent another examination to clarify the etiology of his neurological complaints and findings. Following a complete VA neurological examination in September 2012, the examiner indicated in clear terms that the Veteran did not have a peripheral neuropathy or a peripheral nerve condition. The Veteran had reported symptoms of constant pain and numbness in the lower extremities, but muscle strength, reflex, and sensory testing of the lower extremities was normal. Further, the examiner evaluated the lower extremity nerves separately, but did not observe any peripheral neuropathy impairment; the nerves were all found to be normal on examination. Based on the evaluation, the examiner opined that it was less likely than not that the Veteran's reported peripheral neuropathy of the lower extremities was due to residuals of or aggravated by his service-connected prostate cancer or treatment therefor. As for rationale, it was explained that the Veteran's symptomatology was more related to his impaired fasting glucose and a history of alcohol use/abuse. This evidence opposes rather than supports the claim that the service-connected prostate cancer, status post prostatectomy, caused or aggravated the claimed nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back. First, there is no current evidence of nerve damage. The 2012 VA examiner noted the Veteran's symptoms, but found that upon objective testing there was no peripheral neuropathy or peripheral nerve condition. A separate evaluation of each lower extremity nerve disclosed no abnormality. The examiner's conclusion regarding whether the Veteran's symptoms represented nerve impairment was without ambiguity, unlike the previous examiners in July and August 2007 whose opinions were vague and indefinite as to the presence of any nerve injury. Even the December 2009 VA examiner's finding of a sensory neuropathy in the lower extremities was described as nonspecific and did not identify any nerve damage. In the absence of proof of present disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, assuming there was a disability manifested by nerve damage as evidenced by symptoms of pain and numbness in the lower extremities, the September 2012 VA examiner did not associate the neurological symptoms with the Veteran's prostate cancer or treatment therefor (prostatectomy) in any way. Rather, the examiner associated the neurological symptoms to a fasting glucose impairment or history of alcohol use/abuse. Such conclusion was made after a review of the claims file and, significantly, was not accompanied by tentative or speculative terms as was the case with the previous VA opinions. Service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102. While an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology, a doctor's opinion phrased in terms tantamount to "may" be related [to service-connected disability] 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. Obert v. Brown, 5 Vet. App. 30 (1993); see also, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Thus, the Board finds the conclusion of the September 2012 VA examiner is the most persuasive of the opinions of record and warrants the greatest probative weight on the issue at hand. In sum, the preponderance of the evidence weighs against the Veteran's claim under the theory of secondary service connection under 38 C.F.R. § 3.310, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). For the above reasons, service connection for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back, considering the applicable theories of service connection, is not established. ORDER Service connection for nerve damage with numbness and pain in the bilateral feet, hips, thighs, and lower back, to include as secondary to the service-connected prostate cancer, status post prostatectomy, is not warranted. To this extent, the appeal is denied. REMAND As to the remaining issue of entitlement to a TDIU, the Veteran testified in April 2012 that he was unemployable due to his service-connected genitourinary disability. He asserted that he was last fully able to work before he underwent prostate surgery, in October 2005. The most recent VA examination to assess the severity of his service-connected genitourinary disability was in December 2009. The examiner was asked to describe the extent of the Veteran's functional impairment due to his disability and how that impairment impacted his physical and sedentary employment. The examiner found that the Veteran's urinary incontinence as a complication of the prostate disability had an effect on his occupation (he was doing part-time work that was sedentary and supervisory) and activities of daily living. As to employability, the examiner stated that with the frequency and necessity of catheterizations and pad changing, it "would be very problematic with any employment." Given the unclear medical opinion on the Veteran's employability status due to his service-connected disability, and the fact that the opinion was rendered four years ago and the Veteran has since described at a hearing in April 2012 how voiding difficulties precluded full employment, another medical opinion is needed in order to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to determine whether his service-connected disabilities preclude "substantially gainful" employment. The claims folder must be forwarded to the examiner for review in connection with the examination. In particular, the examiner should (a) comment generally on the functional and industrial impairment caused by the service-connected disabilities, and (b) indicate whether, without consideration of the Veteran's age and any nonservice-connected disabilities, the service-connected disabilities together result in his unemployability. To that end, the examiner's attention is directed to statements pertinent to the Veteran's employability status given by a VA examiner in December 2009 as well as the Veteran's testimony given at a hearing in April 2012. The examiner is advised that "substantially gainful" employment means work that is more than marginal and permits an individual to earn a "living wage" consistent with his education and occupational experience. 2. Upon completion of the above, adjudicate the claim of entitlement to a TDIU. If the benefit is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs