Citation Nr: 1804171 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-23 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Veteran represented by: Joel Ban, Attorney-at-Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In February 2016, the Board remanded the claim for further development. The Veteran has perfected an appeal for Hepatitis C. In his January 2017 VA Form 9, the Veteran requested a videoconference hearing which has not been held. Therefore, the Board does not have jurisdiction over the claim until such time as the hearing is held, and it will not be addressed herein. FINDING OF FACT The evidence of record does not show that the Veteran has a current diagnosis of bilateral neuropathy of the lower extremities that was incurred in or resulted from active duty service. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a letter dated in July 2013. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained all relevant medical records and evidence identified by the Veteran. These records have been associated with the claims file. The Veteran has not identified any additional pertinent evidence that is outstanding and available. Further, VA afforded the Veteran an appropriate VA medical examination in August 2016. Thus, the Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Stegall Compliance The Board finds there has been substantial compliance with its February 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The United States Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, where a veteran served 90 days or more of active service, and certain chronic disease, such as an organic disease of the nervous system to include neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran contends that he developed peripheral neuropathy of the bilateral lower extremities as a result of his service. See Third Party Correspondence entered in Caseflow Reader in December 2015. Regarding presumptive service connection, the record does not indicate that the Veteran received treatment for peripheral neuropathy of the bilateral lower extremities during service or that he actually received treatment for any peripheral neuropathy symptoms within the first year following separation from service. Therefore, peripheral neuropathy was not shown within the first year of discharge and the presumptions under 38 U.S.C. § 1112 and 38 C.F.R. § 3.309 do not apply. As such, the criteria for presumptive service connection have not been met. Regarding direct service connection, the Veteran has a current diagnosis of idiopathic peripheral neuropathy. See VA Examination entered in Legacy in August 2016. As such, element (1) under Shedden is met. The Veteran asserted that he fell during training camp and injured his low back. He stated that he experienced pain that radiated down his legs. See VA Examination entered in Legacy in August 2016; see also Correspondence entered in Caseflow Reader in November 2016. Thus, element (2) under Shedden is met. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran's neuropathy is etiologically related to service. Therefore, the third element under Shedden is not met. The Board notes that in June 1974, the Veteran was treated for radiating pain in the lumbar region of his back. The pain shot down to his left leg and caused his left foot to become numb. See STR entered in Caseflow Reader in December 2009, p. 10. There is no evidence of any treatment, diagnosis, or complaints related to the Veteran's peripheral neuropathy of his bilateral lower extremities in service. Upon discharge, the medical examiner found the Veteran's lower extremities to be normal. Id. at 3. In November 2013, the Veteran saw his physician regarding his neuropathy. See Medical Treatment Record-Government Facility entered in Caseflow Reader in December 2015, p. 4. The Veteran stated that he had burning pain in his feet. See id. The examiner stated that it was likely that the Veteran had neuropathy, but noted that the MRI demonstrated small disc protrusion with extrusion at L5-S1 contacting the left exiting L5 root and L>R traversing S1 roots. See id. at 7. An EMG study was performed, and there was no evidence of peripheral polyneuropathy. See id. at 3. The examiner noted that the Veteran's symptoms were suggestive of a small fiber polyneuropathy which NCS/EMG was unable to assess. The examiner further stated that 30 percent of small fiber polyneuropathy are idiopathetic. See id. In September 2015, the Veteran was seen at the Salt Lake City VMAC: Podiatry Consult. See Capri entered in Legacy in December 2016, p. 96. The Veteran complained of swelling in his legs and pain in his feet which he described as sharp pins and needles and burning. The examiner stated that the Veteran had venous insufficiency and peripheral neuropathy, possibly secondary to prior alcohol abuse. See id. at 97. In November 2015, the Veteran was seen at the Salt Lake City VMAC. See Capri entered in Legacy in August 2016, p. 17. The examiner noted that the Veteran had idiopathic neuropathy with significant EtOH abuse history. See id. at 18. In December 2015, the Veteran submitted a statement from a private physician. See Third Party Correspondence entered in Caseflow Reader in December 2015. The examiner examined the Veteran for hepatitis C, ischemic heart disease, and neuropathy. The examiner noted that the Veteran had numbness and weakness in his lower extremities. See id. The examiner stated that the examination showed significant decreased sensation of both lower extremities to both soft and sharp touch. The examiner further stated that this problem is most often caused by ischemia (lack of oxygen) to the lower extremities. See id. In August 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his neuropathy. See VA Examination entered in Legacy in August 2016, p. 6. The examiner reviewed the VA e-folder and CPRS and performed an in-person examination. See id. The examiner noted that in 1974, the Veteran complaint of left leg pain and numbness but noted that there were no other complaints of leg pain or a diagnosis of peripheral neuropathy while in service. See id. at 7. The examiner stated that the Veteran had a 15 year history of idiopathic peripheral neuropathy, manifest as pain in the feet only. See id. An EMG done in 2013 was normal, but the Veteran was suspected to have small fiber polyneuropathy (not discernable on EMG) due to his well-documented history of alcohol abuse. See id. at 19. The examiner stated that upon examination, there was no motor/sensory dysfunction, but credible allegations of pain in the Veteran's left extremities which were attributable to peripheral neuropathy. See id. The examiner noted that the Veteran suffered from idiopathic peripheral neuropathy and opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. See id. at 18. Based on the evidence of record, the Board finds that service connection for peripheral neuropathy of the bilateral lower extremities, is not warranted. The Board notes that none of the Veteran's examiners have attributed the Veteran's neuropathy to the 1974 in-service fall. The Veteran's private physician attributed the Veteran's neuropathy to lack of oxygen to his extremities which was caused by his ischemic condition. See Third Party Correspondence entered in Caseflow Reader in December 2015. The Veteran's podiatrist and other VA examiners attributed the Veteran's neuropathy to alcohol abuse. See Capri entered in Legacy in December 2016, p. 96; see also Capri entered in Legacy in August 2016, p. 17. Also, the VA examiner noted that the Veteran had a 15 year history of neuropathy, i.e., since 2000 which was over 25 years after separation from service. See Capri entered in Legacy in August 2016, p. 7. The passage of approximately two decades between discharge from active service and the lack of medical documentation of his neuropathy, while not conclusive, is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Additionally, the Veteran has not submitted competent nexus evidence contrary to the VA examiner's opinion or other evidence of record. 38 U.S.C. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). The Board has considered the Veteran and his buddy's lay statements regarding the etiology of the Veteran's peripheral neuropathy. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, a causal relationship between the peripheral neuropathy and in-service leg complaint is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for peripheral neuropathy of the bilateral lower extremities is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs