Citation Nr: 1631088 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 10-20 294 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities to include as secondary to service-connected lumbar strain and herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty service from October 1967 to October 1969. This case comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to denying the Veteran service connection for lower extremity neuropathy to include as secondary to diabetes mellitus, that decision also denied service connection for diabetes mellitus. The Board previously denied the Veteran's claim in March 2013. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court), which issued an order in September 2013 granting a Joint Motion for Remand to consider whether the Veteran's diabetes mellitus might have manifested within one year following his separation from service, and remanded the Veteran's claim of service connection for lower extremity neuropathy as an inextricably intertwined issue. The Board remanded both claims in May 2014 for VA examinations and opinions. Subsequently, a March 2015 Board decision denied the Veteran service connection for diabetes mellitus, but noting that the Veteran had previously raised a theory of entitlement to service connection for bilateral lower extremity neuropathy as secondary to his service-connected back condition, remanded that claim for an addendum VA examination. That additional development has now been completed, and the appeal has again been returned to the Board for further adjudication. The Veteran testified before the undersigned Veterans Law Judge during a July 2014 videoconference hearing. A transcript of that hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board has also considered documentation included in the Virtual VA system in reaching the determination below. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. FINDING OF FACT The Veteran's bilateral lower extremity neuropathy is not etiologically related to his active service, proximately due to or chronically aggravated by a service-connected disability, and did not manifest to a compensable degree within a presumptive period. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board begins its analysis by addressing whether the Veteran has been accorded appropriate process in pursuit of his claim. Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations VA's has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Here, VA has met all statutory and regulatory notice provisions set forth in the VCAA. Prior to initial adjudication, a June 2008 letter satisfied the duty to notify provisions with regard to service connection. As for the duty to assist in development of the claim, where, as here, the Board remands a claim to the AOJ it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Strict compliance, on the other hand, is not required. See id. Additionally, VA's duty to assist also includes the procurement of, or the provision of assistance to the claimant in the procurement of service treatment records and other pertinent treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Finally, pursuant to McLendon v. Nicholson, when required to adequately adjudicate a claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Barr v. Nicholson, 21 Vet App. 303, 311 (2007). First, the Board notes that the AOJ has associated the Veteran's service treatment records, service personnel records, private treatment records, and VA treatment records with the claims file. Accordingly, the Board has fulfilled its duty to assist with regard to the procurement of relevant treatment records and other pertinent documents. Second, the Board notes that the May 2014 remand directives related only to the then on appeal claim of service connection for diabetes mellitus, not the Veteran's bilateral lower extremity neuropathy. However, the March 2015 remand requested: that the AOJ schedule the Veteran for a medical examination of bilateral lower extremity peripheral neuropathy; that an opinion as to whether it is at least as likely as not that the Veteran's bilateral lower extremity peripheral neuropathy was caused by an in-service injury, event, or disease, or was secondary to the Veteran's service-connected lumbar strain; and whether it manifested itself to a compensable 10 percent or more within one year after service. A review of the record reveals that a VA examination of the Veteran's bilateral lower extremity peripheral neuropathy was provided in January 2016, and that prior to this a VA examination had been provided in December 2009. A review of these examination reports reveal that they were adequate because they based on an in-person examination of the Veteran, involved a thorough review of the VBMS claims file, included a detailed medical history, and where appropriate, objective observations of the Veteran's condition. Moreover, the Board finds that the January 2016 VA examination report constitutes substantial compliance with the March 2015 Board remand decision. Finally, as noted above the Veteran had a Board hearing before the undersigned Veterans Law Judge in January 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court 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 regulation. See generally Bryant v. Shinseki, 23 Vet. App. 488 (2010). 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, the January 2012 hearing focused on the elements necessary to substantiate the Veteran's claim, and his testimony and the statements of his representative demonstrate that he had actual knowledge of the elements necessary to substantiate his claims. See id.; see also Procopio v. Shinseki, 26 Vet. App. 76 (2012). Therefore, the Board has met its duty to assist pursuant to Bryant. II. Standards Governing Evidentiary Analysis The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Additionally, when the positive evidence supporting a claim and the negative evidence against the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C.A. §5107(b); 38 C.F.R. §§ 3.102, 4.3 (2015). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See id. Part III, below will discuss rules of law specific to service connection claims. III. Elements of Service Connection for Peripheral Neuropathy Service connection will be granted if it is shown that the veteran has a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in or aggravated by service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are among the listed conditions, with a presumptive period of one year following separation from service. A second presumption of service connection is also potentially applicable here, as the Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Early onset peripheral neuropathy is a listed presumptive condition for herbicide-exposed Veterans. 38 C.F.R. § 3.309(e). The condition must have first manifested to a compensable degree within one year of the last exposure to herbicides. 38 C.F.R. § 3.307(a)(6)(ii). Finally, service connection may also be granted where disability is proximately due to, the result of an already service-connected disability, or where a service-connected disability aggravates, or causes an increase in, a non-service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Below, subpart 1 will discuss the most relevant evidence of record in this case, and apply the above evidentiary and legal standards to the Veteran's claim. 1. Evidence and Analysis Beginning with relevant lay statements, at a January 2012 hearing the Veteran indicated that he had peripheral neuropathy. The Veteran also indicated that he may have a lower extremity neuropathy issue related to his service-connected low back condition or his diabetes. However, neither the Veteran nor his spouse identified a particular onset of neuropathy, although it was noted that the Veteran was diagnosed with diabetes between one to two years after his separation from service. Review of the Veteran's service treatment records reveal no evidence of complaints of symptoms, treatment, or a diagnosis of peripheral neuropathy during service or during his September 1969 separation examination, when his neurologic system was found to be within normal limits. Specifically, there was no radiographic or other evidence of neurological abnormalities noted with relation to the Veteran's service-connected low back disability, which he incurred in service due to a back injury caused by shoveling snow. Prior to this, the Veteran had reported to sick call in March 1963, complaining of a backache of six weeks duration. At that time he denied numbness, tingling, leg ache, or paresthesias in either leg. Moreover, during his December 2009 VA examination, it was noted that the Veteran reported intermittent numbness in the bilateral hands; however, he specifically denied any symptoms in the bilateral lower extremities. Although paresthesia is noted in a March 2005 treatment record from Dr. S., this was not attributed to the Veteran's service-connected low back disability, and B 12 vitamins were prescribed. Moreover, throughout the Veteran's post-service treatment records, the only neuropathy that is diagnosed is identified as diabetic neuropathy by his private family physician Dr. D.P., and while his post-service records are positive for complaints of tingling in his hands and suspected upper extremity diabetic neuropathy, they are negative for complaints of tingling in the lower extremity. However, the Veteran did report tingling in his toes at a January 2010 VA examination report, and his history of diabetes is noted by the examiner. Muscle strength, sensation, and reflexes of the bilateral lower extremities were normal. The examiner did not ascribe the Veteran's tingling toes to the Veteran's service-connected lumbar strain neurologically or otherwise. As discussed above, this case was remanded in March 2015 for provision of an addendum opinion to the December 2009 VA examination report, in which that examiner noted that the Veteran did not report bilateral lower extremity neuropathy and that as such, any diagnosis of peripheral neuropathy secondary to diabetes mellitus would be speculative. A January 2016 addendum opinion diagnosed the Veteran with diabetic sensory polyneuropathy of all four extremities, specifically noting mild paresthesias or dysesthesias and numbness of the right and left lower extremities with normal muscle strength, and reflexes, but decreased sensory responses to light touch. All lower extremity nerves were found to be normal bilaterally, except the external popliteal nerve bilaterally, which was noted to exhibit mild incomplete paralysis. This examiner opined that the Veteran's peripheral neuropathy was not the result of any incident of active, did not manifest within one year of active duty separation, and was not caused by, the result, or aggravated by the Veteran's service-connected low back condition. In support of these conclusions the examiner explained that based on his review of the medical records, the medical literature, and his clinical experience as a neurologist, there were multiple notes from the Veteran's family medicine physician that the Veteran has diabetic neuropathy, and that the Veteran's examination was consistent with this diagnosis. He also explained that a back problem such as the Veteran's does not cause or aggravate diabetic neuropathy. Because the Veteran's diabetes mellitus is not service-connected, the examiner specifically found that there was no nexus between the Veteran's neuropathy and his service. As a preliminary matter, the Board first finds that the Veteran's testimony and lay statements as to symptoms of peripheral neuropathy is both competent and credible because they are directly observable to him and do not require any medical expertise to identify and describe. In contrast, the Board finds that the Veteran's and his spouse's lay testimony and statements as to the etiology of his peripheral neuropathy are not competent for the reasons that follow. Because there is no universal rule as to the competency of lay testimony on medical etiology, the Board must determine on a case-by-case basis whether a particular medical condition is a type of condition a lay person may competently testify to. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Although lay persons are competent to provide opinions on some medical issues, in this case, whether the Veteran's peripheral neuropathy is caused by his service-connected lumbar strain is outside the common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 435. Unlike, for example, breaking a bone, determining the etiology of peripheral neuropathy requires inquiry into biological processes, anatomical relationships, and physiological functioning. Cf. 492 F.3d at 1377 n.4. Such internal physical processes are not readily observable and are not within the competence of this Veteran, who has not been shown by the evidence of record to have medical training or skills. As a result, the persuasive value of his lay etiology opinion is low. Addressing the elements of service connection, first the Board finds that the first element, requiring a current diagnosis, has been met. Second, although the Veteran's lay etiology opinion lacks persuasive value, it does provide at least a theory that there might be a medical nexus between the Veteran's service, including his service-connected lumbar strain, and his bilateral lower extremity peripheral neuropathy. However, the Board finds that the January 2016 VA examination report provides probative evidence against a finding of medical nexus on a direct, secondary, or presumptive basis. The Board finds the January 2016 VA examination report to probative for the same reasons it has found it to be adequate for rating purposes. Moreover, in support of this finding with regard to secondary service connection, the Board notes that the examination report specifically indicates that the etiology of the Veteran's neuropathy is non-service-connected diabetes, not lumbar strain, and the rationale for this diagnosis is well-reasoned and supported by the Veteran's post-service treatment records. Additionally, with regard to entitlement to service connection on a direct basis, including presumptive medical nexus, the Board finds notes that: (1) there is no evidence in the Veteran's service treatment records revealing a complaint of peripheral neuropathy or any other neurological condition; (2) there is no medical or lay evidence that the Veteran was diagnosed with or began experiencing symptoms of early-onset peripheral neuropathy within a year of exposure to herbicides; and (3) the Veteran has not submitted any lay testimony with regard to continuity of symptoms in service or within the presumptive period, and there is no medical evidence of record that would suggest continuity of symptoms. Accordingly, the criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). ORDER Service connection for peripheral neuropathy of the bilateral lower extremities is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs