Citation Nr: 1437162 Decision Date: 08/19/14 Archive Date: 08/27/14 DOCKET NO. 09-45 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a bilateral neurological disability of the lower extremities ("bilateral lower extremity neuropathy"). 2. Entitlement to service connection for a bilateral neurological disability of the upper extremities ("bilateral upper extremity neuropathy"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Navy from September 1989 until September 1993. The Veteran also had active duty service in the U.S. Army from August 1981 to November 1981 and a period of service from November 1985 to September 1989 in the U.S. Navy. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 and a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin. The Veteran testified before a Decision Review Officer at the RO in February 2010; a transcript of the hearing is of record. In June 2014, the Veteran testified during a travel board hearing was held before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing is included in the claims file. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, bilateral lower extremity neuropathy is causally or etiologically related to service. 2. Resolving reasonable doubt in the Veteran's favor, bilateral upper extremity neuropathy is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral lower extremity neuropathy have been met. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for bilateral upper extremity neuropathy have been met. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts entitlement to service connection for bilateral lower extremity neuropathy and a bilateral upper extremity neuropathy that is due to an incident in service. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. 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). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). The Veteran has been diagnosed with peripheral neuropathy of all four extremities. The first element of service connection has been established. The question of entitlement turns on whether there is an in-service injury or incident and whether there is a nexus between the in-service incident and the Veteran's currently diagnosed disabilities. At the Veteran's hearing in June 2014, he testified he was assigned to the USS Kentucky in 1990 while it was being built by General Dynamics at a shipyard in Groton, Connecticut. He and others were required to report to the submarine while it was under construction. During this time, he testified that he was subjected to a large amount of industrial chemicals that he inhaled on a daily basis. The Veteran states that the Navy did not provide the Veteran any type of inhalation protection during this time, even though the civilian workers were provided such equipment. The Veteran states that he was forced to sleep on the boat and he would wake up covered in a white powdery substance, he could hardly breathe and his legs were aching. He reported to sick call with his complaints and was given a muscle relaxer to help with his legs, but he was not removed from duty of protecting the submarine and supervising the civilian workers. At a DRO hearing in February 2010, the Veteran explained that while he was assigned to the USS Kentucky, he would often go back to Washington State for a few months and then return back to the USS Kentucky to stand watch again. The Veteran asserts that because of this unprotected exposure to this unknown chemical he has acquired asthma and a nerve disability that affects both his upper and lower extremities. As a result of his exposure, he contracted asthma in service, was eventually medically discharged, and granted service connection for this condition. In April 1990, the Veteran was treated in service for tightness in his chest and shortness of breath while working in the shipyard. The Veteran's breathing improved only during his abstinence from the submarine. In April 1991, the Veteran was diagnosed with hyperactive airway disease and in 1992, he was diagnosed with asthma. As a result of his diagnosis of asthma, he was forced to retire early from the Navy in September 1993 and he was removed from the Temporarily Retired List in October 1995. Of record is an August 1990 service treatment record from the PCU Kentucky (SSBN-737G), at this time the Veteran sought treatment for a persistent and productive cough that became progressively worse. Another treatment record form March 1991 from the PCU Kentucky states the Veteran reported to sick call with a cough and persistent nasal congestion accompanied with sinus pressure and pain. A follow up treatment note from April 1991 states that the Veteran was seen for symptoms of shortness of breath. Results from testing revealed severe airway hyperactivity. At the time of this note, the Veteran was in Washington State for school, was being treated for airway problems there, and was subsequently disqualified from submarine duty. In June 1991, the Veteran was back on the PCU Kentucky and complained of exacerbations of his reactive airway disease while working in the shipyard and being exposed to fumes. On this treatment note, the examiner states that the Veteran had previously spent three years on a submarine without any respiratory problems until the spring 1990. March through June 1990, the Veteran began to have symptoms due the painting and grinding on the boat, but the symptoms cleared up when he went away to school. He did well until April 1991, when he developed a cough. A service treatment note from November 1992 states that the Veteran experienced reactive airway disease while working in a naval shipyard from March 1990 to May 1991. He was exposed to chemical fumes, paint, etc. Since relocating from the area, he has been "minimally to not" symptomatic. The same treatment notes states that the most likely cause of his hyperactive airways was occupational exposure. At the time of this examination, he was more than a year and half removed from the period of exposure and his symptoms still persisted. The examiner notes that there should be an investigation of his work environment in Groton, Connecticut. In December 1992, service treatment notes show that the Veteran was seen for asthma. Noting that he was assigned to the USS Kentucky, a new submarine built by Electric Boat in Groton, Connecticut from March 1990 to May 1991. His duties included roving and standing watch inside the ship while it was being built. His rotation was every 3 to 4 hours and was required to stay on the boat overnight while on duty. He had to watch the work being done in the assigned compartment during the day. The work consisted of painting, welding and sanding. The workers had to wear respirators but none were given to the sailors. The areas were 8' x 12' x 6' or smaller and had piped in ventilation. In November and December 1990, he started to make upper respiratory complaints among others, but symptoms would clear on schooling trips to Washington State. Finally, the examiner notes that he needs to get data on potential exposures the Veteran encountered while working on the submarine. Another service treatment note from December 1992 states that the Veteran has possible occupational exposure, and that it would be necessary to investigate potential problems at the Groton Naval Base. In an April 1993 service treatment record, there is a notation that the Veteran has a history of reactive airway disease due to occupational exposure while in the shipyard. The Veteran's service treatment records do not reveal any treatment or complaints of nerve problems or neuropathy. However, they do support the Veteran's contention that he was exposed to severe occupational environmental hazards while stationed on the PCU Kentucky that caused him to develop asthma and ended his military career. Post service treatment records reveal that as early as September 1997, the Veteran began complaining of neck pain. The Veteran presented to the VA examiner with complaints of chronic neck pain for the previous three months. In December 1997, the Veteran underwent a VA examination on his neck. He reported that he started developing right sided neck pain and spasms. It was originally thought that he had cervical radiculopathy, but x-rays and MRI's were normal. In April 2009, the Veteran reported to his VA primary care doctor with complaints of a burning discomfort in the legs with rapid walking, numbness in his the left 4th and 5th fingers and in the left forearm. He also complained of recurrent numbness and pain in the right hand while typing and manipulating the computer mouse for about a year. He told the doctor that he had seen a neurologist in Wisconsin who performed EMG's and a CT scan of the head without discovering a source of the numbness. He told the doctor that this numbness in his upper and lower extremities bilaterally was having a significant impact on his lifestyle and he has cut back on 90 percent of the things he likes to do. Another VA treatment note from April 2009 states that the Veteran presented with upper and lower extremity numbness and tingling. Patient states that the symptoms began three years prior with a burning and tingling sensation in his lower extremities primarily around the shins and calves, and located exclusively below the knee. The symptoms become worse with walking, driving or sitting for long periods of time. The Veteran also reported having shooting pains up his arm, while sitting at work or typing. The left 4th and 5th fingers became symptomatic two weeks prior and then the 2nd and 3rd fingers on the left hand became symptomatic as well. The Veteran was examined by a physician in Appleton, Wisconsin and was told that he has a nerve disorder that is related to chemical exposure. In April 2009, Dr. E.G. of the department of Rheumatology at Affinity Medical Group submitted a letter on the Veteran's behalf stating that the Veteran has been diagnosed with painful small fiber neuropathy. There appears to be no underlying autoimmune condition that can explain the Veteran's neuropathy. There is no family history of neuropathy or a history of diabetes. Dr. E.G. states that he cannot answer definitively whether occupational exposure at the shipyard caused the Veteran's disability, but that there is a possibility that occupational exposure may have caused his current problem of small fiber neuropathy. A VA neurology report from July 2009 studied the bilateral upper extremities and lower extremities. The impression was that this was an abnormal study. There was evidence of left ulnar neuropathy at the elbow, but no evidence of polyneuropathy, myopathy, plexopathy, cervical radiculopathy or lumbar radiculopathy. In January 2011, the Veteran began going to the Neuroscience Group for treatment of his neuropathy. A report from April 2012 states that the doctor believes that the Veteran has at best polyneuropathy of diabetes. He does not have any other features on his examination, laboratories or MR imaging to suggest alternative pathologies. The Veteran told the doctor that he recently lost his job as a long distance truck driver, because it was aggravating his burning dysesthesias in his legs. He also complained of numbness in his arms in a broad fashion, which, according to the doctor, did not make any dermatomal sense. He told the doctor that if he touches a certain soft tissue on his neck he could make his arm and hand completely fall asleep. On one occasion he suddenly developed pain in his right hand, it became numb, and then the numbing sensation moved all the way up his arm and across his face through his lips and traveled to his left upper extremity and then his left arm went completely dead for five or six minutes. Since that time, this has occurred in his left arm on several occasions. In April 2010, the Veteran underwent a VA examination for his peripheral nerves. The examiner diagnosed him with peripheral neuropathy of an unknown etiology of all four extremities. The examiner explained that there were no objective findings of peripheral neuropathy, sensory or motor that explains any dermatological or radicular pattern. The diagnosis is an unclear finding with EMG being essentially normal. The examiner states that peripheral neuropathy of all extremities is not an objective finding and he cannot determine if this disability is related to service without knowing what specific chemicals the Veteran may have been exposed to while in service. In a June 14, 2009 letter the Veteran sent to his Senator, he states that he has attempted to contact General Dynamics in order to ascertain what type of chemicals they may have been using on the submarine. He was informed by General Dynamics June 2008 in a letter that because he was not employed by General Dynamics/Electric Boat, that they would not be able to assist him with the information he requested. The Veteran has also tried other means of getting the information, but to no avail. He has contacted his Congressman, his Senator, written multiple letters to General Dynamics and he has not been able to get a response due to the classified nature of the information he seeks. A letter from the Department of the Navy, dated June 2009, states that because the USS Kentucky was under construction at a private shipyard, Navy Medicine only has exposure data if such data was requested by the contractor, General Dynamics, to assist in sampling and monitoring Naval personnel onboard. A search of the Navy's data system, the Navy Occupational Exposure Database (NOED), for information on the USS Kentucky was performed. There was no information on the USS Kentucky during its construction phase. The local Navy medical treatment facility at Groton was also contacted, but they too had no exposure data. In January 2014, the Veteran underwent an examination at the Mayo Clinic in Minnesota. The diagnosis was small fiber predominant peripheral neuropathy, which remains idiopathic. The neurologist told the Veteran that in many cases, a specific etiology cannot be found for small fiber neuropathies and the best management strategy is through good pain control at a pain clinic. The neurologist noted that the Veteran does have diabetes, which could worsen his neuropathy. In April 2014, a letter was submitted on the Veteran's behalf from the Affinity Interventional Pain Clinic. Of note is the author's discussion of the Veteran's diagnosed neuropathy and his diabetes, stating that the Veteran was diagnosed with diabetes 3 years prior, which was well after his symptoms presented relating to his neuropathy. In addition, his hemoglobin A1C is well below the recommended level at 6.20 indicating that his diabetes is well controlled and would unlikely be the cause of his neuropathy. As generally, diabetic neuropathy is brought on by uncontrolled blood glucose, which is not present in the Veteran's case. The author goes on to write that the Veteran was routinely exposed to numerous types of chemicals and this most likely contributed to his condition of idiopathic neuropathy. Additionally, the symptoms presented prior to the diabetes diagnosis, further indicating that the primary cause would not be diabetic neuropathy. The evidence of records clearly supports the Veteran's contention that he was exposed to some type of chemical or occupational environmental hazard while stationed on the USS Kentucky. This exposure was significant enough to cause reactive airway disease and later a diagnosis of asthma for which the Veteran is currently receiving a 60 percent evaluation. The record also supports the theory that there is a strong correlation between this chemical exposure being the cause of his currently diagnosed neuropathy. The VA examiner could not provide a clear nexus opinion without resorting to speculation because there is no information regarding the types of chemicals the Veteran was exposed to on the USS Kentucky. The Veteran has diligently tried to get more information on the types of chemicals that have been used on the on the USS Kentucky, evidenced by the letters to his Senator and the letters received from General Dynamic/Electric Boat and the Department of the Navy. Further, even though the Veteran is currently diagnosed with diabetes and the neurologist from the Neuroscience Clinic stated that this was the etiology of his neuropathy, the records shows that the Veteran's neuropathy was present before he was diagnosed with diabetes. The letter from the pain clinic also states that the Veteran's laboratory findings reflected the diabetes was well controlled and therefore it was unlikely to be the cause of the neuropathy. While further medical inquiry could be undertaken to obtain other opinions on the etiology of his neuropathy, such development would not materially assist the Board in this determination. The neurologist from the Mayo Clinic stated that in some circumstances an etiology could not be provided with this type of disability. Significantly, the April 2009 letter of E.G. noted that occupational exposure to chemical could have caused the neuropathy and the April 2014 letter from Affinity Intervential Pain Clinic concluded that the exposure to chemicals most likely contributed to the neuropathy. Therefore, given the evidence of record, the Veteran's service history, and the medical and opinions offered by various VA and private physicians, the Board has determined that there is a current disability, an incident in service and a sufficient nexus between a service incident and his current disability to grant service connection. After careful review of the record and resolving all doubt in the Veteran's favor, the Board concludes that the Veteran is entitled to service connection for his bilateral upper extremity neuropathy and bilateral lower extremity neuropathy. Duty to Assist and Notify Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Service connection for a neurological disability of the lower extremities is granted. Service connection for a neurological disability of the upper extremities is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs