Citation Nr: 1756962 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 09-33 149 ) DATE ) ) 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 anxiety reaction with depression and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.B. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1967 to July 1970, with service in Vietnam from March 1968 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefit currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in October 2014 to present testimony on the issue on appeal. This appeal was subject to prior remands by the Board in January 2015, March 2016, and March 2017 to develop the evidentiary record and ensure compliance with due process requirements. Although full compliance with all prior Board remand instructions resulting in wholly adequate medical opinions may not have been achieved, given the favorable outcome herein - a full grant of the benefit sought - there is no possibility of prejudice to the Veteran in proceeding with adjudication of the claim at this time. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's bilateral lower extremity peripheral neuropathy was caused or aggravated by his service-connected anxiety reaction with depression and PTSD, specifically as the result of carbon monoxide poisoning from one or more suicide attempts. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, peripheral neuropathy of the bilateral lower extremities was caused or aggravated by service-connected anxiety reaction with depression and PTSD. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and its implementing regulations describe, in part, VA's legal duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal has been considered with respect to VA's duties to notify and assist. However, given the favorable outcome in this decision represents a full grant of the issue at hand, further explanation of how VA has fulfilled its obligations is not necessary. Service Connection Over the course of this appeal, the Veteran has asserted that his peripheral neuropathy of the bilateral lower extremities is caused or aggravated (worsened) by a number of potential factors including herbicide agent exposure during his Vietnam service, as secondary to non-service-connected diseases such as diabetes mellitus, and raised by the record as being secondary to his service-connected acquired psychiatric disorder by way of carbon monoxide poisoning. The Board will now address only the later of these contentions here, as it is the successful theory of entitlement. Service connection may be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 1 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). Here, the Veteran has a current diagnosis of peripheral neuropathy of both lower extremities. VA examinations, June 2016 & September 2015. The Veteran has also been in receipt of service connection benefits for anxiety reaction with depression and PTSD for many years. See, e.g., Rating decision, October 1997 (establishing the current seventy percent rating for the Veteran's service-connected psychiatric disability due in part to history of suicide attempt). Thus, the first and second elements necessary for service connection are established. The remaining question is how these two disabilities are medically related. To this end, in a March 2006 VA treatment note, the Veteran's psychiatrist writes, Of additional concern has been that the veteran's neuropathic complaints regarding the gnawing discomfort that he feels in his thighs has been worsened over the course of the past few years which I believe is likely secondary to significant carbon monoxide poisoning secondary to his suicide attempt 4 years ago. There is evidence of a delayed neuropsychiatric syndrome that can occur in close to 40 percent of patients with significant carbon monoxide exposure that is characterized by ... focal neurologic deficits ... the development of the delayed neuropsychiatric syndrome tends to occur in a majority of cases where people end up losing consciousness during the carbon dioxide [sic] poisoning phase. This veteran did, in fact, lose consciousness and I believe that this is likely compounding his current symptoms. The VA psychiatrist then lists a diagnosis of status post carbon monoxide poisoning with residual neurological deficits. VA treatment record, March 2006. She reiterates similar concerns in a May 2006 treatment note, adding "Veteran educated on chronic pain, depression, PTSD and how each is intricately related." VA treatment record, May 2006. The Board notes that specific details of a suicide attempt by carbon monoxide poisoning in or around 2002 do not appear to be of record. However, a prior attempt by carbon monoxide, and the resulting hospitalization in March 1997 are of record, and that circumstance was found to be secondary to PTSD and the Veteran's service-connected psychiatric disability as well as domestic troubles he was experiencing at the time. VA hospitalization report, March 1997; see also VA mental disorders examination, April 1997. Thus, a medical relationship is established between the Veteran's service-connected psychiatric disability and the existence of carbon monoxide poisoning, and the carbon monoxide poisoning has been medically related to his peripheral neuropathy of the lower extremities. The Board acknowledges that a June 2016 VA examiner opined that carbon monoxide overdose does not cause the type of demyelinating peripheral neuropathy experienced by the Veteran. However, this opinion was not supported by an adequate rationale or explanatory reason for that opinion. Furthermore, when faced with equal evidence for and against a Veteran's claim, VA must find in favor of the Veteran. After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA must resolve that doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Board finds the medical evidence to be in a state of relative equipoise as to the question of nexus, or medical relationship between carbon monoxide poisoning and peripheral neuropathy in this Veteran's case. Reasonable doubt is resolved in favor of the Veteran. Thus, service connection for peripheral neuropathy as secondary to his service-connected psychiatric disabilities is warranted. 38 C.F.R. § 3.310. ORDER Service connection for peripheral neuropathy of the bilateral lower extremities is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs