Citation Nr: 19188317 Decision Date: 11/21/19 Archive Date: 11/21/19 DOCKET NO. 15-25 856 DATE: November 21, 2019 ORDER Entitlement to service connection for right lower extremity peripheral neuropathy secondary to service-connected hepatitis C is denied. Entitlement to service connection for left lower extremity peripheral neuropathy secondary to service-connected hepatitis C is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence is against finding that right lower extremity peripheral neuropathy is proximately due to or aggravated by service-connected hepatitis C. 2. The preponderance of the probative evidence is against finding that left lower extremity peripheral neuropathy is proximately due to or aggravated by service-connected hepatitis C. CONCLUSIONS OF LAW 1. Right lower extremity peripheral neuropathy is not secondary to service-connected hepatitis C. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 2. Left lower extremity peripheral neuropathy is not secondary to service-connected hepatitis C. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from November 1973 to June 1974, and on active duty from May 1975 to November 1976. In September 2018, the Board denied entitlement to service connection for right and left lower extremity peripheral neuropathy; denied entitlement to a compensable rating for spider angiomas; granted a 70 percent rating for an acquired psychiatric disorder for the period prior to February 16, 2017; and denied a rating greater than 70 percent for an acquired psychiatric disorder for the period since February 16, 2017. The Board remanded the issues of entitlement to service connection for a liver disorder and renal cell carcinoma, to include secondary to hepatitis C; entitlement to a compensable rating for hepatitis C; and entitlement to a total disability rating based on individual unemployability. The Veteran appealed the September 2018 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in June 2019, the Court granted a joint motion for partial remand (joint motion). The Board’s denial of entitlement to service connection for right and left lower extremity peripheral neuropathy was vacated and remanded for action consistent with the joint motion. The parties did not disturb the increased rating for an acquired psychiatric disorder. Further, the appellant did not take issue with the propriety of the Board’s denial of a compensable rating for spider angiomas or the denial of a rating in excess of 70 percent for acquired psychiatric disorder. The remanded issues remain pending and have not been returned to the Board. Accordingly, they are not for consideration at this time and will be addressed in a subsequent decision. Service Connection In June and July 2014, VA denied entitlement to service connection for peripheral neuropathy of the lower extremities. The Veteran disagreed with the decision and perfected this appeal. The Veteran contends that his peripheral neuropathy developed not as a result of service, but rather is due to service-connected hepatitis C, namely treatment with interferon. See November 2013 statement in support of claim. Hence, the Board will consider his claim on a secondary basis only. Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected disorder . 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected disorder has aggravated a claimed disorder , but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision of the Court in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). Evidence of record shows a current diagnosis of lower extremity peripheral neuropathy and the Veteran is service-connected for hepatitis C. The question for the Board involves nexus. An October 2012 VA record indicates electrodiagnostic testing was abnormal. The findings were most consistent with a sensorimotor polyneuropathy (primarily axonal) affecting the lower extremities. The reviewing physician stated the etiology was unclear and he questioned if the findings were related to hepatitis C or related treatments for hepatitis C. A November 2013 record signed by a VA podiatrist indicates that he discussed with the Veteran the progressive nature of his neuropathy and the possible link to hepatitis C and its treatments. The Veteran underwent a VA examination in November 2013. The examiner noted the Veteran’s medical history as related to neuropathy – specifically, that he first reported symptoms at a VA treatment visit in January 2009. At that time, the treating VA hepatologist noted that the Veteran had completed 24 weeks of treatment for hepatitis C in July 2008. The clinician noted the claimant’s reports of symptoms he experienced while undergoing hepatitis C treatment, to include fatigue, flu-like symptoms, appetite changes, and anxiety. The Veteran stated that his neuropathy symptoms started after completion of the hepatitis C treatment. The VA hepatologist noted that interferon, the drug used treat the Veteran’s hepatitis C, was not a common cause of neuropathy, and when neuropathy did arise as a result of interferon use, it was often in the setting of high doses of chemotherapy. The doctor further noted that the Veteran had been off interferon for six months and his neuropathy had worsened, such that the clinician did not believe interferon to be the cause of the current neuropathy complaints. The examiner then noted that the August 2012 electromyography showed sensorimotor polyneuropathy of unclear etiology. After physical examination, the November 2013 examiner opined that the Veteran’s diagnosed bilateral lower extremity peripheral neuropathy was less likely than not proximately due to or the result of the appellant’s service-connected hepatitis C. The examiner cited to the findings of the VA hepatologist from January 2009. She also noted that “[t]he development of peripheral neuropathy in a patient receiving combination interferon and ribavirin therapy for treatment of chronic hepatitis C infection is uncommon.” The examiner noted that there had been case reports of certain peripheral neurologic disorders occurring during interferon therapy, but because of the rarity there was no consensus regarding their management. Therefore, the examiner reasoned, since the likelihood of developing peripheral neuropathy in patients treated for hepatitis C with interferon and ribavirin was uncommon and occurred in less than one percent of patients, coupled with the fact that the Veteran’s peripheral neuropathy did not start until after his treatment was completed and continued to worsen after treatment, and because his hepatologist stated his treatment did not appear to be the cause, it was less likely than not that peripheral neuropathy was proximately due to or the result of the appellant’s hepatitis C. In the September 2018 decision, the Board found the November 2013 VA opinion to be the most probative evidence of record and further stated that there were no medical opinions of record to the contrary. Pursuant to the joint motion, the parties agreed that the Board provided an inadequate statement of reasons or bases. Specifically, that the Board failed to address two May 2014 examination reports which stated that the cause of the neuropathy was toxicity from interferon therapy. The parties agreed that remand was warranted for the Board to address these examinations. The Veteran underwent a VA hepatitis examination in May 2014. He reported that he was treated with interferon and developed severe side effects to include extreme neuropathy in both legs. The examining physician (Dr. D.M.) remarked that “[t]he cause of this neuropathy is toxicity from interferon therapy for his service connected Hepatitis C.” The Veteran also underwent a VA peripheral nerves examination in May 2014. At that time, he reported that the neuropathy began as a shooting pain down both legs in the back during interferon therapy for hepatitis C. He reported that the disorder had gotten much worse and he had to stop interferon treatment. Following examination, the examining physician (Dr. D.M.) opined that the neuropathy was at least as likely as not proximately due to the service-connected disorder . The following rationale was provided: Yes. The bilateral lower extremity neuropathy is a known complication of therapy with interferon. It is not directly caused by a Hep C viral infection. The [V]eteran reports a liver [biopsy] done at [the VAMC] showing “stage II cirrhosis.” Since [he] had active viral hepatitis C [he] decided with hepatologist to attempt to treat this Hep C virus with interferon. [He] had good response and [was] free of viral at this time but [he] developed sever (sic) side effects the most one of extremity neuropathy both legs which has left [him] unable to work since early 2012. As set forth, the record contains evidence both for and against the claim. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The October 2012 VA record indicates the physician questioned whether there was a relationship between the Veteran’s neuropathy and hepatitis C or treatments for same. The November 2013 VA record indicates the podiatrist noted a possible link between the two. To the extent these notes constitute medical opinions, the Board does not find them probative. That is, they are speculative in nature and not supported by adequate rationale. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (Evidence that is speculative, general or inconclusive in nature cannot support a claim). The Board has considered the May 2014 examination reports as directed, but for various reasons does not find the positive nexus statements probative. While the examiner noted that peripheral neuropathy is a known complication of hepatitis C treatment, it appears that the opinion was in large part based on the Veteran’s reported history. Specifically, that the neuropathy pain began during interferon treatment and was such that he could not continue with the treatment. These facts are not supported by contemporaneous records and the Board is not required to accept an opinion based on unsupported facts. Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record). In this regard, review of the January 2009 hepatology clinic follow-up note indicates that the Veteran completed 24 weeks of treatment for hepatitis C in July 2008. The hepatologist noted that the Veteran had risk factors of prior alcohol use and elevated blood glucose, and that the symptoms started after completion of treatment with interferon. Further, the hepatologist noted that interferon was not a common cause of neuropathy and that when it occurred it was in the setting of high dose chemotherapy. The Board finds this record, which was made in close proximity to the completion of interferon therapy, to be highly probative concerning the history of onset of the claimed disorder . In further addressing the probative value of the 2014 opinions, the Board acknowledges the agent’s July 2019 argument wherein he states that the May 2014 examiner noted the specific diagnostic test results leading to his conclusion regarding etiology of the neuropathy. Review of the peripheral nerves disability benefits questionnaire, however, indicates that the examiner selected “no” as to whether electromyographic studies were performed, and “no” regarding any other significant diagnostic test findings. In the remarks section the examiner referred to significant test results which appeared to be current laboratory testing that would necessitate routine follow-up with the primary care provider when available. The examiner’s statements do not specifically identify any testing that supports the opinion that the cause of the neuropathy is toxicity from interferon therapy. On review, the Board finds the November 2013 VA opinion highly probative. The examiner offered clear conclusions with supporting data and she provided a reasoned medical explanation that is consistent with treatment records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (The probative value of a medical opinion comes from its being factually accurate and the thoroughness and detail of the opinion.) The Board acknowledges the Veteran’s belief that his neuropathy is related to his treatment for hepatitis C. As a layperson, however, he is not competent to provide an etiology opinion on a complex medical question and his statements do not outweigh the well-reasoned and supported November 2013 VA opinion of record. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While the agent generally argues that service-connected hepatitis C has caused or aggravated the Veteran’s neuropathy, he does not make separate arguments concerning aggravation and the record does not contain any probative evidence suggesting aggravation. In this regard, the Board again notes that the neuropathy did not arise until following interferon treatment and remission of his service-connected disorder . Accordingly, the claim is denied. Given that the preponderance of the probative evidence is against the claim, the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.