Citation Nr: 1806069	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  14-21 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include secondary to treatment for esophageal cancer. 


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and J.C.


ATTORNEY FOR THE BOARD

Paul Bametzreider, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1959 to August 1962. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
 
The Veteran testified in November 2017 before the undersigned. A transcript of the hearing is associated with the claims file. 

The issues of entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include secondary to treatment for esophageal cancer; erectile dysfunction, to include secondary to treatment for esophageal cancer; and a postural disorder, to include secondary to bilateral lower extremity peripheral neuropathy were raised at the November 2011 Board hearing. These issues, however, are not currently developed or certified for appellate review.  Accordingly, this matter is referred to the RO for appropriate consideration.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Resolving reasonable doubt in the favor of the Veteran, bilateral lower extremity peripheral neuropathy was caused by treatment for service-connected esophageal cancer.



CONCLUSION OF LAW

Bilateral lower extremity peripheral neuropathy is proximately due to a service-connected disorder. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that bilateral lower extremity peripheral neuropathy was caused by chemotherapeutic agents used in the treatment of his service-connected esophageal cancer. 

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131.  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  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 service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (a).

The Veteran underwent chemotherapy to treat esophageal cancer in 2006. A March 2007 VA neurology consultation record noted that the Veteran reported developing a shock-like sensation in the legs, numbness in the feet and an unsteady gait about one month after finishing chemotherapy. The VA physician noted electrodiagnostic evidence of "distal, fairly symmetric, sensory greater than motor neuropathy" with "no conduction blocks present." The examiner opined that this was "consistent with cisplatin-neuropathy." (Cistplatin is a platinum containing powder used to treat cancers.  http://www.dictionary.com/browse/cisplatin)  The physician noted that "other possible causes could include diabetes, glucose intolerance, vitamin deficiency, thyroid disease, paraprotein, and less likely paraneoplastic syndrome."

A second VA neurological consultation was provided in December 2014. There the physician noted that it was "unusual for chemotherapy-related peripheral neuropathy to follow such a progressive course especially [eight] years out from his original surgery." The physician went on to state that "typically these neuropathies improve slowly after chemo although occasionally they fail to improve" and concluded that "it is reasonable to search for alternative explanation for his worsening neuropathy."

Multiple VA treatment records attribute the Veteran's neuropathy to chemotherapy, and variously refer to the condition as "post-chemotherapy neuropathy," and "neuropathy from chemo." Moreover, the medical treatment records do not reveal any alternative etiology of the condition. 

In September 2012, a VA examiner diagnosed a "complex sensory peripheral neuropathy of both lower extremities due to unknown cause" and opined that such condition was less likely than not caused by treatment for esophageal cancer. In support of that opinion, the examiner noted that the Veteran's neuropathy was "symmetrical ascending sensory polyneuropathy" and that such condition was "less likely to be attributed to a chemotherapeutic agent." The examiner did not discuss any alternative etiological theory regarding the disability, nor did the examiner address the contrary findings of the March 2007 VA neurological consultation, or the various reports of an etiological relationship contained in the VA treatment records.

The Veteran has submitted several letters in support of his contentions regarding the claimed disability. Dr. K., a VA physician, submitted an April 2014 letter stating that the Veteran's peripheral neuropathy "is due to chemotherapy" and an October 2017 letter noting that peripheral neuropathy "has been attributed to chemotherapy." In a November 2017 letter, Dr. S. opined that the Veteran's peripheral neuropathy was "likely due to chemotherapy and radiation given to treat malignancy in 2006." The Veteran also submitted a November 2017 letter from an insurance company which noted that a health risk assessment had documented "drug-induced polyneuropathy." 

The medical evidence reveals that the Veteran has a diagnosis of bilateral lower extremity polyneuropathy. After considering the totality of the record, the Board finds that the competent medical evidence of record is at least in equipoise as to whether that disorder was caused by chemotherapy for esophageal cancer.

The September 2012 VA examiner's opinion against service connection is not supported by extensive rationale, and it failed to discuss the specific facts of the Veteran's case or the contrary evidence of record. Instead, the examiner's opinion was apparently based entirely on the characterization of the Veteran's peripheral neuropathy as "symmetrical ascending sensory polyneuropathy" although the examiner provided no explanation of how he came to that diagnosis. 

The April 2014 letter of Dr. K., and the November 2017 letter of Dr. S. do not contain any rationale to support the conclusions reached therein, and are therefore entitled to low probative value. 

The Board turns to the March 2007 and December 2014 VA neurological consultations. The first neurological consultation concluded with a finding that the Veteran's condition was "consistent with cisplatin-neuropathy." While the physician noted other possible causes, to include diabetes, glucose intolerance, vitamin deficiency, thyroid disease, paraprotein, or paraneoplastic syndrome, a review of the record reveals no diagnosis of any such disorders. The December 2014 consulting physician observed that the progression of the Veteran's condition would be unusual for chemotherapy-related peripheral neuropathy. However, that comment did not rule out the possibility that the condition was induced by chemotherapy but subsequently aggravated by other factors. Although the December 2014 consulting physician suggested a search for alternative explanations for the worsening of the condition, the treatment records do not indicate that any alternative causative factor has been identified. 

The findings of the March 2007 neurology consultation, together with the favorable opinions of Dr. K. and Dr. S., as well as the numerous references throughout the VA treatment records to the Veteran's bilateral lower extremity peripheral neuropathy as being related to his treatment for esophageal cancer are sufficient to support the Veteran's claim in this case. Such records suggest that the claimed condition, at least at its inception, was related to certain chemotherapeutic agents used in the treatment of esophageal cancer. While subsequent evidence expressed some doubts as to that etiological relationship, the Board finds that here, the totality of the evidence is in equipoise.

As such, the benefit sought on appeal is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding ... benefits.").


ORDER

Entitlement to service connection for bilateral lower extremity peripheral neuropathy secondary to treatment for esophageal cancer is granted. 



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs