Citation Nr: 1808177 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-18 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a neurological disability of both upper and the right lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1986 to November 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Fargo, North Dakota, Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, a videoconference hearing was held before the undersigned; a transcript is in the record. In August 2017, the RO granted service connection for left lower extremity radiculopathy as secondary to the Veteran's lumbosacral sprain, and service connection for such disability is no longer before the Board. FINDINGS OF FACT 1. Neuropathy of both upper and the right lower extremities was not manifested in service, or within a year following his discharge from active duty, and the preponderance of the evidence is against a finding that it is related directly to his service. 2. The Veteran's neurological disability (sensorimotor neuropathy of the both distal upper extremities and the right distal lower extremity) is not shown to be radiculopathy his service-connected cervical and lumbosacral sprain, but has been attributed to an etiological factor unrelated to service. CONCLUSION OF LAW Service connection for a neurological disability of both upper and the right lower extremities is not warranted. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 VA's duty to notify was satisfied by letters in January 2012, February 2012, and September 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the November 2014 videoconference hearing, the undersigned identified the issue and notified the Veteran of what is necessary to substantiate this claim. A deficiency in the conduct of the hearing is not alleged. The Board finds that there has been substantial compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant. The Veteran's service treatment records (STRs) are associated with his record, and VA has obtained all pertinent postservice (private and VA) treatment records he identified. He was afforded VA examinations in June 2012, December 2012, May 2016, and July 2017. A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (i) a current disability (for which service connection is sought); (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including organic diseases of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree in a specified time postservice (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. A June 1987 STR shows treatment for low back pain. A September 1987 STR notes a self referral for a psychological dependency to alcohol. On June 2012 VA back examination, the Veteran stated that he did not have any permanent numbness on a regular basis but did feel an occasional tingling sensation in the arms, hands, legs, and feet. On physical examination, reflex examination was normal; sensory examination of both upper anterior thighs and knees was also normal, but he had decreased sensation in the both lower legs at the ankles, feet, and toes. Radiculopathy or other neurologic abnormality was not noted on examination. The examiner opined that the Veteran's decreased sensation in the feet did not appear to be related to his back disability, as there was no indication of spinal stenosis or disc herniation on imaging studies. On June 2012 VA hand and finger conditions examination, the Veteran reported occasional tingling in the hands and slight numbness with such episodes. It was noted that many years prior he was assigned a diagnosis of carpal tunnel syndrome (which was self-treated with wrist splints, ice, and rest, resolving the symptoms). He described random episodes of tingling from his elbow distally to his fingers, which resolves by itself. He denied any injuries to his arms or hands during service. The examiner determined that the Veteran did not have a diagnosed left hand condition that would be remotely related to his service-connected back disability. On June 2012 VA neck conditions examination, the Veteran reported that he has occasional numbness in his hand, starting from his elbow down to his fingers, as well as occasional random numbness and tingling in his bilateral lower extremities into his feet. On physical examination, his reflex and sensory exams were normal. No radicular pain or other signs of symptoms due to radiculopathy were noted, and no other neurological abnormalities were found. On June 2012 VA peripheral nerves examination, the Veteran stated that he had some numbness and pain in his lower back following his injury in service. He now has random episodes of tingling into the fingers and feet. The examiner noted that Electromyogram and Nerve Conduction Velocity (EMG/NCV) studies had not been performed. He also noted that the Veteran had symptoms attributable to a peripheral nerve condition, including constant pain and mild bilateral upper and lower extremity paresthesia and/or dysesthesias and numbness. Additional symptoms included random, occasional numbness involving the upper extremities from the elbows down into the fingers, and in the feet. On physical examination, his reflex and sensory exams were normal, except for decreased sensation in the bilateral lower leg/ankle and feet/toes. No trophic changes attributable to peripheral neuropathy were noted, and his upper extremity nerves and radicular groups were all considered normal; Phalen's and Tinel's signs were both negative. The examiner determined that the Veteran did not have any diagnosable neurological condition in his upper or lower extremities (but nonetheless opined that his lower extremity neurological condition is less likely caused by or secondary to his service-connected back disability). On December 2012 VA peripheral nerves examination, the Veteran reported periodic finger numbness in both hands with tingling and numbness at night, and also complained of cold toes and occasional numbness in the tops of his feet. He denied radicular symptoms or pain. The examiner stated that the Veteran did not have any symptoms attributable to a peripheral nerve disability. On physical examination, his reflex and sensory exams were normal and he did not have any trophic changes attributable to peripheral neuropathy; Phalen's sign and Tinel's sign were both positive. His upper extremity nerves and radicular groups were all found to be normal. The examiner opined that no peripheral neuropathy was found on examination, and that the Veteran's upper extremity symptoms are more likely related to carpal tunnel syndrome than to his service-connected neck disability despite image films that show mild compression of the superior portion of the C4 vertebra. The examiner also opined that there is no connection between the Veteran's service-connected back disability and his intermittent feet numbness. At the November 2014 videoconference hearing, the Veteran testified that he takes medication (Gabapentin, Tizanidine, and Meloxicam) for neurological disability prescribed by a physician at the Fargo, North Dakota VA Medical Center (VAMC); evidence. A June 2015 treatment record notes that the Veteran's chronic neck and back pain were treated with maximum Gabapentin, Meloxicam, and low-dose Tizanidine. Another treatment record notes that Meloxicam was replaced with Diclofenac. On May 2016 VA peripheral nerves examination the diagnoses were mild chronic sensorimotor polyneuropathy involving the distal upper and lower extremities since 2010, chronic posttraumatic lumbar musculoskeletal back pain since 1987, and chronic posttraumatic musculoskeletal cervical pain since July 1987. The examiner noted a mild action tremor involving the upper extremities since 2012 which he attributed to chronic alcoholism in the past (from 2003 to 2013). The noted symptoms attributable to peripheral nerve conditions were mild intermittent pain of the right and left upper extremities, mild paresthesia of the right and left upper extremities, and mild numbness of the right and left upper extremities. Muscle strength testing was normal 5/5 in all tests except left hand grip. Reflex exams were normal for all upper extremities tested. All sensory exams were normal. Examination of upper extremity nerves and radicular groups showed mild incomplete paralysis of the left median nerve, and mild incomplete paralysis of the right and left ulnar nerves. All other upper extremity radicular groups were normal. Testing of lower extremity radicular groups showed mild incomplete paralysis of the left and right external popliteal nerve. All other lower extremity radicular groups were normal. The examiner opined that the etiology of the peripheral neuropathy was most likely chronic alcoholism in the past. The examiner further opined that it was less likely than not that mild chronic sensorimotor neuropathy involving the distal upper extremities and lower extremities was caused by the chronic posttraumatic cervical and lumbar pain. On July 2017 VA back examination the noted diagnoses were chronic lumbosacral strain, and Left T8 radiculopathy. The examiner noted that the Veteran was diagnosed with T8 radiculopathy after complaints of a three year history of left chest wall and left back pain. Muscle strength testing was normal for all lower extremity groups tested. Reflex was normal for both right and left knees and ankles. Sensory examination was normal. Radiculopathy testing showed mild intermittent pain, paresthesia (and/or dysesthesias), and numbness of the left lower extremity. Radiculopathy testing was normal for the right lower extremity, and left lower extremity for constant pain. The examiner noted that the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) caused mild left sided radiculopathy. On July 2017 VA neck examination the diagnosis was cervical strain. Muscle, reflex, and sensory testing were all normal. No radiculopathy was shown. The examiner noted that no radiographic abnormality involving the supra cervical vertebral column was shown. The Veteran's service treatment records are silent for complaints, diagnosis, or treatment for any upper extremity or right lower extremity neurological disability. The earliest postservice treatment record pertaining bilateral hand numbness is dated in 2010; there is no evidence, or allegation, that a peripheral neuropathy of the upper extremities or right lower extremity was manifested within one year following his separation from service in 1987. Neuropathy was not diagnosed until 2010 (more than 20 years following his separation from service). Consequently, service connection for peripheral neuropathy on the basis that it became manifest in service and persisted or on a presumptive basis (as a chronic disease under 38 U.S.C.§§ 1112, 1137) is not warranted. The Veteran's proposed theory of entitlement to the benefit sought is primarily one of secondary service connection, i.e., that the claimed neuropathy is a radiculopathy associated with his service-connected lumbosacral and cervical sprain disabilities. Whether or not his sensory deficits in the extremities are indeed radiculopathies form his cervical spine disabilities is a complex medical question, beyond the realm of common knowledge and incapable of resolution by lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The competent (medical) evidence in the record regarding the nature and etiology of the claimed disability(ies) does not support that he has a neurological disability of either upper, or the right lower extremity that is a radiculopathy from (neurological manifestation of) his service-connected neck and back disabilities. The VA examinations assessing the Veteran's current neurological disability noted in the record are (cumulatively, as they did not each address the medical questions presented) probative medical evidence in this matter. On June 2012 VA back examination the examiner opined that the Veteran's decreased sensation of the feet did not appear to be related to his back. On June 2012 VA hand and finger conditions examination the examiner noted that the Veteran did not have a diagnosed hand condition that would be remotely related to service. A June 2012 VA neck conditions examination did not find any radicular pain or other signs and symptoms due to radiculopathy. On December 2012 VA peripheral nerves examination, the examiner noted that the Veteran's upper extremity symptoms were more likely related to carpal tunnel syndrome, and not his service-connected neck disability. The examiner also opined that there was no connection between the Veteran's service-connected back disability and his intermittent feet numbness. On May 2016 VA peripheral nerves examination the examiner opined that it was less likely than not that mild chronic sensorimotor neuropathy involving the distal upper extremities and lower extremities was caused by the chronic posttraumatic cervical and lumbar pain. On July 2017 VA back examination, the examiner found left lower extremity radiculopathy related to the Veteran's service-connected low back disability. All other radiculopathy testing was normal. On July 2017 VA neck examination it was noted that there was no radiographic abnormality involving the supra cervical vertebral column. The reports of these examinations cumulatively establish that the Veteran service-connected back and neck pathology is not an underlying cause for the sensory deficits in his bilateral upper and right lower extremities. The opinions offered were based on review of the record and examinations of the Veteran (with references to supporting diagnostic studies). The providers offered opinions that cite to supporting factual data, and identify other, more likely, non-service-connected, etiological factors for the Veteran's complaints (including a past history of alcohol abuse and [non-service-connected] carpal tunnel syndrome]. They are competent evidence in the matter. The Veteran is a layperson and has not cited to supporting medical opinion or other competent medical evidence. His own opinion attributing his sensory complaints to his service-connected cervical and lumbar spine disabilities has no probative value. Because there is no competent evidence in the record supporting the Veteran's theory of entitlement the Board finds the opinions offered on VA examinations persuasive. Because the record identifies no other basis for relating the Veteran's claimed neurological disability (of both upper or the right lower extremity) etiologically to his service or to a service connected disability, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. (. ORDER Service connection for neuropathy of both upper and the right lower extremities is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs