Citation Nr: 1752762 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-08 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, to include as due to service connected residuals of prostate cancer. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968, which included service in the Republic of Vietnam. He received the Combat Infantryman Badge. This matter initially came before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for bilateral peripheral neuropathy of the lower extremities. The RO in Atlanta, Georgia currently has jurisdiction over the Veteran's claim. The Veteran testified before a Veteran's Law Judge at a March 2011 videoconference hearing at the RO. A transcript of the hearing has been associated with his file. In February 2017 correspondence, the Veteran was informed that the VLJ that conducted the March 2011 Board hearing was no longer at the Board and the Veteran was offered a new hearing before a different VLJ. Significantly, the Veteran declined a new Board hearing. In June 2011, the Board denied the claim of service connection for bilateral peripheral neuropathy of the lower extremities. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 memorandum decision, the Court set aside the Board's June 2011 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. In March 2015, the Board remanded the Veteran's claim for further development. The agency of original jurisdiction (AOJ) substantially complied with the March 2015 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran does not have early-onset peripheral neuropathy, nor did his peripheral neuropathy manifest within one year of his last period of active service. 2. The Veteran's peripheral neuropathy is not etiologically related to a disease, injury or event in service and is not caused or aggravated by his service-connected residuals of prostate cancer. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy, to include as secondary to service connected residuals of prostate cancer, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Following a September 2012 memorandum decision from the Court of Appeals for Veterans Claims (the Court), the Board remanded the Veteran's service-connection claim in March 2015, in pertinent part, so that records identified at the Veteran's Board hearing could be requested and obtained. The Veteran submitted release forms allowing VA to obtain these records on his behalf, and they are now associated with the record and considered below. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection In order to obtain service connection the evidence must show: (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, i.e., a "nexus." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under the provisions of 38 C.F.R. § 3.309(a), service connection may be presumed when an organic disease of the nervous system becomes manifest to a compensable degree within one year after separation from service; under the provisions of 38 C.F.R. § 3.309(e), service connection may be presumed for an herbicide-exposed Veteran who develops early-onset peripheral neuropathy, if such became manifest to a compensable degree within one year after the last date of exposure. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See 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). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his bilateral peripheral neuropathy of the lower extremities is due to his exposure to Agent Orange and in the alternative, his service-connected residuals of prostate cancer. See January 2008 RO Hearing. With regard to the first element of direct service connection, current disability, the Veteran has a current diagnosis of bilateral peripheral neuropathy of the lower extremities. See November 2016 Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ) VA examination. With regard to the second element of direct service connection, in-service incurrence or aggravation of a disease or injury, service treatment records are silent for complaints, treatment, or diagnosis of lower extremity numbness, including peripheral neuropathy. Notably, while a report of medical history at separation indicates that the Veteran had suffered from swollen or painful joints and cramps in the legs, his March 1968 separation examination did included a "normal" clinical evaluation of the lower extremities and the neurological system. Pertinently however, the Veteran's DD 214 notes the Veteran served in Vietnam during the Vietnam Era, and in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). The key question at issue is whether the Veteran's current neuropathy disability is related to his this in-service exposure. For the reasons discussed below, the Board finds that the evidence is against a finding that such a relationship exists. Pertinently, the evidence of record demonstrates that the Veteran's peripheral neuropathy first manifested in 2005 or 2006. In a June 2006 Private medical treatment note, Dr. P. V. diagnosed the Veteran with peripheral neuropathy. An April 2007 office note from Dr. R.S., the Veteran's private physician, notes the Veteran was seen in August 2006 with complaints of lower extremity paranesthesia and clinical findings were suggestive of neuropathy. Further, a follow up MRI demonstrated mild degenerative changes without stenosis and the clinical impression was neuropathy. In July 2010, Dr. J.S. noted that the Veteran's lower extremity condition has been present for 5 years. The Veteran testified at his hearing before the Board that he recalled first experiencing symptoms in July 2005. As such, the evidence does not show, nor does the Veteran assert that he has early-onset peripheral neuropathy, warranting an award of service-connection on a presumptive basis under 38 C.F.R. § 3.309(e). In addition, as his peripheral neuropathy was not manifest to a degree of 10 percent or more during his first post-service year, service connection also cannot be presumed under the provisions of 38 C.F.R. § 3.309(a). That stated, at his Board hearing, the Veteran testified that his private physicians indicated to him that his peripheral neuropathy were the result of his chemical exposure during his military service. In June 2015, as required by a March 2015 Board remand, the Veteran attended a Peripheral Nerves Conditions DBQ VA examination. The examiner noted a diagnosis of peripheral neuropathy, bilateral lower extremities. Further, the examiner opined that his peripheral neuropathy was less likely than not due to or incurred in military service. By way of rationale, the examiner stated that there was no treatment in the service records to include the separation exam, and no treatment post service until 2006, some 40 years after discharge from military service. Further it was noted by the examiner that the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides is not warranted for chronic peripheral neuropathy disorders. Therefore, it is less likely than not that the Veteran's chronic peripheral neuropathy is directly service connected. An October 2015 private medical treatment notes a diagnosis of tarsal tunnel syndrome. In November 2016, the Veteran attended a Peripheral Nerves Conditions DBQ VA examination. The examiner diagnosed neuropathy of the lower extremities. The examiner opined that his lower extremity peripheral neuropathy was less likely than not due to or incurred in military service. The rationale stated was that VA presumes a veterans' early-onset peripheral neuropathy is related to their exposure to Agent Orange or other herbicides during service when the disease appears within one year of exposure to a degree of at least 10 percent disabling by VA's rating regulations. While this may be the case, the examiner did not assess whether the Veteran's peripheral neuropathy can be granted on a direct basis. In September 2017, as required by the April 2017 Board remand, an independent medical opinion was provided. The examiner opined that it is less likely than not that the Veteran's bilateral peripheral neuropathy of the lower extremities relates to and/or was aggravated by exposure to herbicides, in part, because the symptoms began approximately 37 years after separation from service thus outside the presumptive period of service. Further, it was noted that his active duty medical records were reviewed and they were negative for any signs and symptoms related to peripheral neuropathy of the lower extremities. Third, and crucially, the examiner opined that the Veteran's condition is etiologically related to his post-service medical history of peripheral vascular disease and/or idiopathic changes in the sensory distribution of lumbar nerves. The examiner reviewed the October 2015 Advanced Wellness Care examination report in which the Veteran presented with new complaints of the foot corresponding to the diagnosis of tarsal tunnel syndrome with disturbance of skin sensation. Since the compression of the posterior tibial nerve included localized compression of L4 and L5 fibers, it was at least as likely as not that this new diagnosis, tarsal tunnel syndrome, related to the 2015-2016 findings observed on the corresponding peripheral nerve examinations, and not to in-service exposure to herbicide agents. The Board finds the September 2017 independent medical opinion to be highly probative. The opinion clearly reflects consideration of the Veteran's medical history, including his service treatment records, VA treatment records, and private treatment records documenting his diagnosis and complaints of bilateral peripheral neuropathy of the lower extremities through the years, as well as the lay statements of record, including his statements concerning the onset of symptoms, and provides a complete medical rationale identifying a more likely etiology for peripheral neuropathy than in-service herbicide exposure. Although the Veteran reported to the Board at his March 2011 hearing that two of his physicians have linked his peripheral neuropathy to service, VA has obtained treatment records from both of these physicians, and they contain no such expressed link. The Board finds the Veteran's statements, although competent, to be less probative than the well-reasoned medical opinion provided by the September 2017 independent medical examiner. In sum, with respect to direct service connection, the evidence of record is against a finding that the Veteran has early-onset peripheral neuropathy, that his neuropathy was manifested to a degree of 10 percent within one year of his April 1968 separation from active duty service, and that his neuropathy had its onset in service, or is otherwise related to active duty service, to include as due to exposure to herbicide agents. The evidence does not show, and the Veteran does not contend that a continuity of symptoms since service exists. Accordingly, service-connection is denied on a direct basis. With regard to secondary service connection, the Board finds that the evidence of record similarly does not favor a finding that the Veteran's diagnosis was proximately caused or aggravated by the Veteran's service-connected residuals of prostate cancer. The Veteran has testified that the onset of symptoms began prior to his prostate surgery. See March 2011 hearing transcript, at 9. In April 2008, the Veteran attended a VA genitourinary examination. The examiner noted a diagnosis of radiculopathy (as opposed to peripheral neuropathy), but nevertheless indicated that such was unrelated to prostate cancer. The examiner he noted that there are was metastases to the spine, which would be the only pathophysiology to allow for this. More on point, in June 2015, a VA examiner noted a diagnosis of peripheral neuropathy, bilateral lower extremities. In pertinent part, the examiner opined that it is less likely than not the neuropathy was aggravated by the service connected prostate cancer, as there was a prostatectomy without chemotherapy, and the medical literature does not show a nexus between the two conditions. The Veteran has had ample opportunity to submit medical opinion evidence in support of his claim, and against the reasoned conclusions of the June 2015 VA examiner, but he has not done so. To the extent the Veteran himself links his Therefore, based on the foregoing, the Board finds that service connection for bilateral peripheral neuropathy of the lower extremities, to include as due to service-connected residuals of prostate cancer are not warranted. In reaching this decision, 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, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §3.102; Gilbert, supra. ORDER Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied, on both a direct and secondary basis. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs