Citation Nr: 1802616 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 08-39 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected residuals of status post pilonidal cystectomy with excision of pilonidal sinus tract. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California. The Veteran testified before the undersigned Veterans' Law Judge in a May 2015 Board Hearing at the RO. A copy of the transcript is of record. In July 2015, the Board denied service connection for bilateral lower extremity neuropathy. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In a January 2016 Order, the Court granted a Joint Motion for Partial Remand, and remanded the issue of entitlement to service connection for bilateral lower extremity neuropathy. The Board remanded this matter in April 2016 and March 2017 for additional development. FINDINGS OF FACT The preponderance of the evidence weighs against associating currently diagnosed neuropathy with any incident of service or to a service-connected disability, and an organic disease of the nervous system resulting in neuropathy is not shown within one year following service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected residuals of status post pilonidal cystectomy with excision of pilonidal sinus tract, have not been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify a claimant of any information necessary to substantiate a claim, and to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim, to include requesting records and providing an examination. 38 U.S.C. § 5103, 5103A (2012). VA has requested and received service personnel and medical records, private medical records, and has compiled VA medical records. The Veteran does not assert that VA did not meet any duty to notify, that there are any outstanding records that need to be secured on behalf of the Veteran, or that the VA examinations during the course of this appeal are inadequate to decide this claim. Therefore, no further notification or assistance is necessary. 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 claimant does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a current 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between a service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). 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). Where a Veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of that service, that disability shall be presumed to have been incurred or aggravated in service, even though there is no evidence of the disability during the period of service. 38 U.S.C. § 1101, 1112 (2012); 38 C.F.R. § 3.307, 3.309 (2017). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating a claim, 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 Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). In determining the probative value to be assigned to a medical opinion, the Board must consider whether a medical expert was fully informed of the pertinent factual premises and medical history of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In instances of conflicting medal opinions the Board may favor one opinion and assign a higher probative value over another, as long as an adequate statement of the Board's reasoning is given. D'Aries v. Peake, 22 Vet. App. 97 (2008). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159 (2017). Competent lay evidence may establish the presence of observable symptomatology and may also be sufficient to support a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining 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. 38 U.S.C § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that lower extremity neuropathy was caused by a cystectomy in service. Service medical records show a cystectomy in service. A May 2016 VA examination diagnosed peripheral neuropathy. The examiner supported the opinion with an abnormal electromyography (EMG) results showing mild incomplete paralysis, and trophic changes in both legs. The Board finds that opinion is probative, and shows a current disability. The Veteran's spouse provided a statement that the two were married in 1971, and that after the Veteran's service she noticed chronic knee pain and swelling. However, she did not discuss any complaints of pain, burning, or a tingling sensation in the legs. A May 2015 note from a private medical doctor stated the Veteran was a patient treated for bowel incontinence and lower back pain. The doctor noted the Veteran's history of cystectomy and complaints of back pain and incontinence. The doctor reasoned that lower back surgery has a risk of nerve injury and can lead to complications, which that doctor listed as bowel incontinence. However, the doctor did not discuss which nerves may be injured by a cystectomy and cause lower extremity neuropathy, and did not opine that the Veteran's cystectomy was at least as likely as not (greater than 50 percent probability) related to any neuropathic symptoms. A VA examiner in January 2016 opined that neuropathy was less likely than not (less than 50 percent probability) related to service, or the cystectomy in service. The examiner was fully informed of the facts and medical history of the Veteran's complaints and treatment. The examiner reasoned that a pilonidal cyst results from infection caused by hair being forced back into and under the skin, and as such is superficial and does not extend into the spinal column or musculature. The examiner also supported that opinion by attributing neuropathy symptoms to the Veteran's significant weight gain of approximately 80 pounds since service. A May 2016 examiner opined that peripheral neuropathy was not related to a pilonidal cyst or cystectomy in service, or to the residuals of the surgical scar. The examiner was fully informed of the facts and medical history of the Veteran's complaints and treatment. The examiner reasoned that peripheral neuropathy is a toxic-metabolic condition, and opined that the Veteran's peripheral neuropathy was most likely secondary to the long-term use of six to eight beers per day, throughout a period of over twenty years. In July 2017, another VA examiner diagnosed lumbar radiculopathy and peripheral neuropathy of the right leg. The examiner was fully informed of the facts and medical history of the Veteran's complaints and treatment. The examiner opined that the cystectomy in service was not related to peripheral neuropathy since the excision of the pilonidal cyst and tract are superficial and do not involve the underlying structures. That examiner also reasoned that the Veteran's separation physical was normal, and the Veteran did not seek treatment for neuropathy until decades after service. The Board finds no probative evidence which shows a causal relationship between the in-service cystectomy and the present peripheral neuropathy. VA examiners considered direct and secondary service connection theories, and supported their opinions with sufficient reasoning. Although an in-service injury and present disability are shown, there was no competent opinion which supports the Veteran's contentions. Additionally, no lay or medical evidence was submitted which showed that an organic disease of the nervous system manifested to a degree of 10 percent by June 1973. Accordingly, without competent evidence that shows a causal relationship between the in-service cystectomy and the present neuropathy, entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected residuals of status post pilonidal cystectomy with excision of pilonidal sinus tract, is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected residuals of status post pilonidal cystectomy with excision of pilonidal sinus tract, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs