Citation Nr: 1810366 Decision Date: 02/14/18 Archive Date: 02/27/18 DOCKET NO. 11-04 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy, right and left lower extremities, to include as secondary to service-connected meniscus tear of right knee and early degenerative joint disease. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Army from April 1976 to April 1980. The Veteran also served in the Army National Guard, including a period of active duty for training (ACDUTRA) from July 1973 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico which denied service connection for peripheral neuropathy of the right and left lower extremities, to include as secondary to service-connected meniscus tear of right knee and early degenerative joint disease. During the course of the appeal, jurisdiction over this case was transferred to the Houston, Texas Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2014. A copy of the hearing transcript has been associated with the record. This issue was previously before the Board in August 2015, when the Board denied service connection for peripheral neuropathy, right and left lower extremities, to include as secondary to service-connected meniscus tear of right knee and early degenerative joint disease (right knee disability). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2016, the parties filed a Joint Motion for Remand (JMR). The JMR provided that a remand was warranted for the Board to discuss the Veteran's theory of aggravation when determining whether entitlement to service connection, as secondary to service-connected right knee disability, was appropriate. In a May 2016 Order, the Court granted the JMR and remanded the issue of entitlement to service connection for peripheral neuropathy, right and left lower extremities, to include as secondary to service-connected right knee disability to the Board. In September 2016, the Board remanded the issue for a VA examination which was obtained in December 2016. Upon return to the Board, the claim was again remanded in May 2017 for a VA addendum opinion, which substantially complied with prior remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran has currently diagnosed peripheral neuropathy of the right and left lower extremities. 2. Peripheral neuropathy of the right and left lower extremities is not related to service and is not caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy, right and left lower extremities, to include as secondary to service-connected meniscus tear of right knee and early degenerative joint disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide veterans with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued an April 2008 preadjudicatory notice letter to the Veteran which met the VCAA notice requirements in reference to the claim of service connection for a peripheral neuropathy of both legs. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence in reference to the Veteran's claim on appeal. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The information and evidence that has been associated with the claims file includes service treatment records, military personnel records, VA treatment records, translated private treatment records, lay statements, online medical literature, VA examinations and a videoconference hearing transcript. The Veteran was afforded VA examinations and addendum opinions in May 2008, December 2016 and May 2017. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disability has been met. 38 C.F.R. § 3.159(c)(4) (2017). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge, 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). In addition, a veteran is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307 , 3.309(a). Organic diseases of the nervous system, to include peripheral neuropathy, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see also Nix v. Brown, 4 Vet. App. 462, 466 (1993). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a veteran seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that service connection for currently diagnosed peripheral neuropathy of the right and left lower extremities is related to service, to include as secondary to service-connected meniscus tear of right knee and early degenerative joint disease. After review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence shows that peripheral neuropathy of the right and left lower extremities is not related to service and is not caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease. Service treatment records show in-service treatment for a knee injury and pain in May 1977, July 1978 and September 1980. A July 1977 note shows the Veteran reported pain in his left calf, diagnosed as muscle ache, thought to be due to physical training. In March 1978, the Veteran fell and scraped his right knee, which caused abrasions on his right leg. Service treatment records do not show symptoms, treatment or complaints of peripheral neuropathy of the right and left lower extremities. In a May 2008 VA examination, the Veteran reported that he had been diagnosed with diabetes mellitus about 15 years prior, and had a chronic, gradual onset of his leg condition 4 years prior. The Veteran complained of tingling sensations and burning pain in his toes, with burning pain in both calves which would occur intermittently at any moment during the day. Upon examination, the VA neurology physician diagnosed the Veteran with bilateral lower extremity peripheral neuropathy, which was most likely caused by his diabetes mellitus. In a December 2014 videoconference hearing, the Veteran contended that his peripheral neuropathy of the right and left lower extremities was caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease. A December 2016 VA examination confirms the Veteran's diagnosis of bilateral lower extremity peripheral neuropathy. Upon examination, the VA examiner opined that the Veteran's bilateral lower extremity peripheral neuropathy was less likely than not due to or the result of service-connected meniscus tear of right knee and early degenerative joint disease. The VA examiner reasoned that natural or progressed condition of knee degenerative changes do not include neuropathy. The examiner also discussed that the Veteran's VA medical records from 2008 showed that he had knee pain and was going to physical therapy, and had x-rays and an MRI taken in January 2008 and March 2008, respectively, which showed degenerative changes of his right knee. The Veteran denied numbness to the foot in 2008 when he was seen for left foot pain. The examiner indicated that the Veteran had diabetes mellitus since 1990, and was currently on insulin, which more than likely caused his neuropathy and was not due to his service-connected condition. In a December 2017 VA addendum opinion, the VA examiner, upon review of the Veteran's claims file, opined that there was no connection or causal nexus between the Veteran's service-connected right knee disability and diabetic neuropathy, and that no aggravation existed or was possible. The VA examiner similarly indicated that the Veteran's diagnosed diabetes mellitus was the origin of his bilateral diabetic neuropathy, and not from his service-connected meniscus tear of right knee and early degenerative joint disease. Upon review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a finding that peripheral neuropathy of the right and left lower extremities is related to service and is not caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease. The probative evidence of record, including service treatment records, does not show that peripheral neuropathy of the right and left lower extremities was related to the Veteran's active military service, or that a chronic disability was incurred in service. Rather, the evidence reflects that symptoms of peripheral neuropathy of the right and left lower extremity symptoms had an onset as early as 2004, with a diagnosis not shown until May 2008, many years after service separation. There is no medical evidence of record suggesting that the Veteran's peripheral neuropathy of the right and left lower extremities derived from an in-service event. Alternatively, VA examinations of record show that the Veteran's peripheral neuropathy of the right and left lower extremities is caused by diabetes mellitus, diagnosed in 1990, and his current insulin therapy. Therefore, the Board finds that service connection on a direct basis for peripheral neuropathy of the right and left lower extremities is not warranted. VA examinations of record also show that the Veteran's peripheral neuropathy of the right and left lower extremities is not caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease. The December 2016 VA examiner opined that the Veteran's bilateral lower extremity neuropathy was less likely than not due to or as a result of the Veteran's service-connected meniscus tear of right knee and early degenerative joint disease. The VA examiner reasoned that the natural or progressed condition of knee degenerative changes do not include neuropathy. Rather, the VA examiner opined that the Veteran's diabetes mellitus, in which he was taking insulin, was more than likely the cause of his neuropathy. In a December 2017 VA examination , the VA examiner further opined that there was no causal nexus between the Veteran's right knee condition and diabetic neuropathy, and that no aggravation exists or is possible. The Board finds that the December 2016 and December 2017 VA examinations provided competent, credible, and probative evidence showing that the Veteran's peripheral neuropathy of the right and left lower extremities was not caused by or aggravated by his service connected right knee disability. The VA examiner provided adequate reasoning for the opinions rendered based on the stated rationale and facts and the examiners' own medical expertise. Additionally, the Board finds that the aggravation opinion of record, which reveals that aggravation of peripheral neuropathy of the right and left lower extremity by service-connected meniscus tear of right knee and early degenerative joint disease does not exist or is possible, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. As the probative medical evidence of record provides no basis to grant the claim on appeal, but rather provides evidence against the claim, the Board finds that no reasonable possibility exists that such an opinion would aid in substantiating the Veteran's claim. 38 U.S.C. § 5103A(a) (2012); Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). Accordingly, the Board finds that service connection on a secondary basis for peripheral neuropathy of the right and left lower extremities, as caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease, is not warranted. The only other evidence of record that tends to relate the Veteran's current peripheral neuropathy of the right and left lower extremities are the testimony and arguments advanced by the Veteran and his representative. These lay statements do not establish the required nexus between any acquired pathology and his military service, to include as secondary to service-connected meniscus tear of right knee and early degenerative joint disease. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as a medical nexus opinion. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the foregoing, absent competent and credible evidence of peripheral neuropathy of the right and left lower extremities being related to service, and being caused by or aggravated by service-connected meniscus tear of right knee and early degenerative joint disease, the Board finds that there is no basis for direct or secondary service connection. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for peripheral neuropathy, right and left lower extremities, to include as secondary to meniscus tear of right knee and early degenerative joint disease, is denied. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals