Citation Nr: 1800382	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  10-24 316	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for neuropathy of the left lower extremity. 

2. Entitlement to service connection for neuropathy of the right lower extremity. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel


INTRODUCTION

The Veteran had active duty from March 1971 to March 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In January 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. 

The Board previously remanded this matter for additional development in May 2015, September 2016, and May 2017.


FINDINGS OF FACT

1. The evidence of record fails to establish that the Veteran's left lower extremity neuropathy was manifested in service, is etiologically related to service, manifested within one year of service, or related to any service-connected disability.

2. The evidence of record fails to establish that the Veteran's right lower extremity neuropathy was manifested in service, is etiologically related to service, manifested within one year of service, or related to any service-connected disability.


CONCLUSIONS OF LAW

1. Neuropathy of the left lower extremity was not incurred or aggravated in active service and may not be presumed to have been incurred or aggravated in service or caused or aggravated by a service-connected disability. 38 U.S.C.§§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

2. Neuropathy of the right lower extremity was not incurred or aggravated in active service and may not be presumed to have been incurred or aggravated in service or caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, a Veteran 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- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (internal quotation marks omitted). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017).

Certain chronic disabilities, including other organic diseases of the nervous system (such as neuropathy), are presumed to have been incurred in or aggravated by service if the disability manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

To establish secondary service connection a Veteran must show: (1) the existence of a present disability; and (2) evidence that the present disability was either caused by the service-connected disability or that the service-connected disability increased the severity of the present disability. 38 C.F.R. § 3.310. In showing that the service-connected disability increased the severity of the present disability, the severity of the current disability cannot be due to the natural progression of that current disability. See Allen v. Brown, 7 Vet. App. 439 (1995).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. Neuropathy of the Lower Extremities

The Veteran claims that his left and right lower extremity neuropathy is related to either his service related benzene exposure or to his service-connected disabilities. The Veteran is currently service-connected for sleep apnea, effective December 2012; a left knee MCL tear with degenerative joint disease, effective January 2007; a left shoulder impingement, effective January 2007; a left hip strain, effective January 2007; a left ankle condition, effective January 2007; left hand carpal tunnel syndrome, effective January 2007; low back degenerative disc disease without radiculopathy, effective August 2008; neck degenerative disc disease without radiculopathy, effective January 2008; right shoulder impingement, effective January 2007; left ear hearing loss, effective January 2007; rhinitis, effective January 2007; tinea pedis, effective January 2007; and tinea cruris of the buttocks, effective January 2007.

The Veteran's service treatment records indicate that the Veteran had no complaints or treatment for neuropathy in-service. Specifically, the Veteran's June 1996 separation examination indicated the Veteran had a normal clinical evaluation of his lower extremities. The Veteran's service treatment records note that the Veteran was exposed to benzene in September 1990. 

In July 2007, the Veteran reported to his private physician that he had pain in his left knee. The Veteran stated that he had tingling down the left leg to the bottom of the foot, primarily in the winter and with prolonged walking. The Veteran stated that he had this problem for several years. The Veteran's private physician diagnosed the Veteran with chondromalacia patellae. In August 2008, the Veteran reported to his neurologist that he had a new concern of numbness and occasional pain in the ball of his left foot. In October 2008, the Veteran's neurologist diagnosed the Veteran with idiopathic peripheral neuropathy, not otherwise specified. The Veteran's private physician advised the Veteran to inquire at the VA concerning his exposure to benzene and polyneuropathy. Since October 2008, the Veteran's private physician treated the Veteran for polyneuropathy. The Veteran's neurologist also diagnosed the Veteran with cervical spondylosis and left lower extremity radicular symptoms in September 2011. 

The Veteran's VA treatment records first note that the Veteran was diagnosed with bilateral lower extremity peripheral neuropathy in May 2009. In May 2011, VA treatment records note in the Veteran's assessment that he was diagnosed with peripheral neuropathy in both feet secondary to military exposure to benzene.   

In April 2011, the Veteran underwent a VA examination. The Veteran had decreased pain/pinprick test in the right and left lower extremity. The examiner found the location of the abnormity was the foot to upper calf only. The Veteran stated that he was seeking treatment for his lower extremity peripheral neuropathy from his private physician. The examiner stated the lower extremity neuropathy was of an uncertain cause. The examiner did not otherwise address the Veteran's lower extremity peripheral neuropathy. 

In November 2015, a VA medical opinion was rendered with the "Acceptable Clinical Evidence" (ACE) process because the existing medical evidence on which to prepare a disability benefits questionnaire (DBQ) was available and therefore an examination would likely provide no additional relevant evidence. The examiner opined that the Veteran's idiopathic neuropathy of the left and right lower extremities did not have its onset during active duty or the year following separation in March 1997. The Veteran's idiopathic neuropathy of the left and right lower extremities is not etiologically related to an in-service injury, disease, or event and is not proximately due to or chronically aggravated by a service connected disability. The examiner reasoned that there was no evidence of clinical symptoms of neuropathy of the lower extremities during active duty or the year following separation. The examiner noted that the first indication of neuropathy was during a neurological examination in August 2008 more than 11 years after separation from service. He further concluded that his service-connected conditions would not cause or aggravate this condition and a nexus cannot be made in any manner. 

An addendum medical opinion was obtained in September 2016. The examiner opined that the Veteran's peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran first mentioned his neuropathy to his neurologist in August 2008, many years after exposure to benzene. The examiner explained that exposure to benzene would have nothing to do with developing neuropathy symptoms almost two decades later. The examiner reiterated his opinion that benzene exposure had nothing to do with the Veteran's present lower extremity neuropathy.

An additional addendum medical opinion was obtained in May 2017. The examiner opined that the Veteran's peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is no evidence of symptoms or finings during active duty suggesting peripheral neuropathy of the lower extremities. The examiner explained that there was no disease or event that would have caused his neuropathy, including benzene exposure. The examiner explained that the Veteran first mentions his lower extremity symptoms, which did not include shooting pain from his hips to his feet, to his treating neurologist in August 2008, many years after his exposure to benzene. At the time the Veteran was diagnosed with idiopathic polyneuropathy of the lower extremities. The examiner noted that the Veteran stated that he experienced shooting pain from his hips to feet while in active service. The examiner explained that these symptoms would have nothing to do with his peripheral neuropathy. The examiner reasoned that peripheral neuropathy causes foot symptoms only initially and gradually can work its way up his legs, and once past the knees, begins to involve the hands over many years. The examiner further reasoned that peripheral neuropathy that has been diagnosed would never present as pain shooting from the hips to his feet many years prior to diagnosis. The examiner stated that the symptoms described to the Veteran's neurologist and himself were not the same symptoms as the Veteran described he had in active service. Finally, the examiner reasoned that there is no evidence in the medical literature that benzene exposure could lead to the symptoms of the Veteran's idiopathic neuropathy diagnosis in 2008; and therefore, a nexus to active duty cannot be made in any manner. 

The May 2017 addendum opinion also addresses secondary service connection. The examiner opined that the Veteran's peripheral neuropathy is less likely than not proximately due to or the result of the Veteran's service connected conditions. The examiner reasoned that the Veteran's condition is a dysfunction of the distal nerves causing symptoms starting in his feet. The examiner explained that this has nothing to do with his nerve roots that come out of his lumbosacral spine and go down the legs or the cervical spinal cord. The examiner further clarified that a back condition can cause radiculopathy but this is a completely different process than what is occurring in the Veteran. The examiner also stated that a neck problem can cause myelopathy (or spinal cord compression), but this would not lead to the Veteran's condition. The examiner stated that the Veteran's knee problem has no bearing on his peripheral nervous system. Therefore, the Veteran's idiopathic polyneuropathy of the lower extremities is unrelated to his service-connected conditions, including the back, neck, and knee disabilities. The examiner also opined that the Veteran's peripheral neuropathy of the lower extremities is less likely as not aggravated by the Veteran's service connected disabilities. The examiner reasoned that idiopathic polyneuropathy causes dysfunction of the most distal nerves. A back, neck, or knee problems would not affect these distal nerves and could never permanently worsen this condition. Therefore, the Veteran's service connected conditions have absolutely no effect on the Veteran's distal peripheral nerves and a nexus for aggravation cannot be made.  

In January 2014, the Veteran testified in a Board hearing. The Veteran stated that he had problems with his lower extremity neuropathy in-service. He stated that he experienced shooting pain from his hips down to his feet, specifically, his left leg was worse than his right but he ignored the symptoms. The Veteran stated that his neurologist tried to narrow down what caused his neuropathy and that his neurologist told him it was probably due to exposure to benzene. The Veteran also testified that he had shooting pain down his legs and he thought may be related to his back and neck disabilities. 

The Board finds that the Veteran's statement that he felt shooting pains from his hips down to his feet in-service competent and credible. The Board finds that the Veteran's assertion that his left and right lower neuropathy may be related to his neck and/or back disabilities is not competent. A layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to the causation of neuropathy in the lower extremities.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (non-expert witnesses are competent to report that which they have observed with their own senses). The Veteran does not have the required expertise to link his back and neck disabilities with his left and right lower extremity neuropathy. 

The Board finds that the Veteran has the current disabilities of right and left peripheral neuropathy of the lower extremities. The Board finds that there was an in-service event, injury, or event because of the competent, credible statement that Veteran experienced shooting pains from his hips to his feet and that he was exposed to benzene. However, the Board finds that there is no nexus between his current polyneuropathy of the lower extremities and his in-service shooting pain or benzene exposure. The Board notes that the Veteran first complained of the numbness and tingling in his left foot in August 2008. At the time, his private neurologist noted that this was a new complaint. While it appears the Veteran's neurologist suspected that benzene exposure may have caused his polyneuropathy the neurologist did not give a definitive nexus opinion and instructed the Veteran to reach out to VA medical professionals. It appears that the Veteran discussed his lower extremities neuropathy at a VA facility, which in May 2011 provided an assessment that his neuropathy was secondary to benzene exposure. However, VA treatment records do not provide reasoning for this assessment. Though probative in this decision, the suspicion of the Veteran's private neurologist and the May 2011 assessment are outweighed by the VA examiner's medical opinion. The VA examiner's definitive opinion nexus opinion found that benzene exposure would not cause neuropathy many years after service, and the medical literature does not support that benzene caused the Veteran's current neuropathy. Further, the examiner found that the Veteran's shooting pains in-service would not be related to his current idiopathic polyneuropathy of the lower extremities because the development of the conditions begins at the foot and gradually climbs the leg, which mirrors the Veteran's post-service medical record of his polyneuropathy of the lower extremities. Therefore, the Board finds the most probative evidence is against finding a nexus between his service and his current condition. 

The Board notes that the Veteran did not present with a neuropathy until August 2008. There is no competent and credible evidence of neuropathy of the left and right lower extremities in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. Characteristic manifestations sufficient to identify the disease entity were not noted. Here, the weight of the probative evidence of record simply fails to demonstrate an in-service incurrence of polyneuropathy of the lower extremities became manifest to any degree within one year of separation from service. As noted, continuity of symptomatology is required where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. However, because neuropathy of the left and right lower extremities or symptoms thereof were not present or noted in service, the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology are not applicable in this case. Therefore, the Board finds that service connection for peripheral neuropathy of the lower extremities on a direct basis is not warranted.

The Board also finds that service connection for the Veteran's neuropathy of the left and right lower extremities on a secondary basis is not warranted. As noted above, the Veteran is service-connected for sleep apnea, a left knee MCL tear with degenerative joint disease, a left shoulder impingement, a left hip strain, a left ankle condition, effective left hand carpal tunnel syndrome, low back degenerative disc disease without radiculopathy, neck degenerative disc disease without radiculopathy, right shoulder impingement, left ear hearing loss, rhinitis, tinea pedis, and tinea cruris of the buttocks. However, the Board finds that the Veteran's peripheral neuropathy of the left and right lower extremities were not caused or aggravated by his service-connected disabilities because the only competent evidence found that they were not related. The November 2015 examiner found that the Veteran's service-connected conditions would not cause or aggravate his polyneuropathy of the lower extremities. In May 2017 addendum opinion, the examiner provided the reasoning that the Veteran's neuropathy of lower extremities affected his distal nerves, which are unrelated to the Veteran's back, neck, and knee disabilities. He further stated that his other service-connected disabilities are unrelated conditions to the Veteran's neuropathy. The examiner noted that the distal nerves could never be permanently worsened by a back, neck or knee disability. As the examiner's November 2015 and May 2017 opinions are the most probative evidence, the Board finds that service-connection on a secondary basis is not warranted. 

The claim of entitlement to service connection for neuropathy of the right and left lower extremities must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER


Entitlement to service connection for left lower extremity neuropathy is denied.

Entitlement to service connection for right lower extremity neuropathy is denied. 




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs