Citation Nr: 21002854 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 12-31 154 DATE: January 19, 2021 ORDER Entitlement to service connection for right lower peripheral neuropathy associated with lumbar strain with degenerative changes is denied. Entitlement to service connection for left lower peripheral neuropathy associated with lumbar strain with degenerative changes is denied. FINDINGS OF FACTS 1. The preponderance of the evidence is against finding that right lower peripheral neuropathy began during active service, or is otherwise related to an in-service injury or disease or secondary to (caused or aggravated by) his service-connected lumbar strain. 2. The preponderance of the evidence is against finding that left lower peripheral neuropathy began during active service, or is otherwise related to an in-service injury or disease or secondary to (caused or aggravated by) his service-connected lumbar strain. CONCLUSIONS OF LAWS 1. The criteria for entitlement to service connection for right lower peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for left lower peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1978 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in May 2019 instructing the RO to obtain a VA opinion to determine whether the Veteran has a lower extremity peripheral neuropathy diagnosis that was caused by his military service. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained a March 2020 VA medical opinion. The Board finds the RO substantially complied with the May 2019 remand directives. The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. 1. Entitlement to service connection for right lower peripheral neuropathy. 2. Entitlement to service connection for left lower peripheral neuropathy. The Board addresses the service connection claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran contends that he developed bilateral lower neuropathy secondary to his lumbar strain. The Veteran is already service connected for a lumbar strain and bilateral lower extremity radiculopathy. During the December 2014 Board hearing, the Veteran testified that his mid-section was numb so much that he lost control of his bowels or bladder. The numbness is from his hips to his feet. The service treatment records document numerous reports of bilateral lower extremity pain, weakness, and numbness. Specifically, a July 1984 record reflects that the Veteran experienced pain in the legs on walking. In May 1988 and June 1988, the Veteran stated that he experienced low back pain radiating to the right buttock then down the anterior aspect of the leg to the foot. The May 1998 record also noted right sciatic pain with radiation on range of motion. A February 1989 record reported low back pain radiating down the anterior and posterior aspect of both legs. May, June, and November 1991 records documented occasional tingling and radiation of pain down both legs. June 1992 records noted findings of chronic low back pain with sciatica and radiating discomfort down the right lower extremity. An August 1996 record reported that a straight leg raising test was positive, bilaterally. Post-service treatment records show the Veteran has a current diagnosis of bilateral lower extremity neuropathy. See e.g., July 2008 Kansas Surgery Note (bilateral leg pain and numbness); November 2008 Kansas Spine Hospital Record (bilateral feet numbness); November 2009 Neurology Associates Record (peripheral neuropathy); October 2017 VA Neurology Consult (mild sensorimotor poly neuropathy); June 2019 VA Pain Note (reported numbness and pain). Therefore, the requirements of a current disability and an in-service event has be satisfied for service connection. The remaining question is whether the Veteran’s current disability is related to his military service or his service-connected lumbar strain. The Veteran underwent several VA examinations over the course of the appeal period. Collectively, the examinations did not support a finding that the Veteran’s bilateral neuropathy was related to his military service or his service-connected lumbar strain. The September 2011 VA examination confirmed the diagnosis peripheral neuropathy and the examiner found that neuropathy has no physiologic correlation to spinal nerves. The examiner also stated that the Veteran had been found to have low vitamin B12 which required an injection. This was the primary risk factor of his peripheral neuropathy. During the February 2014 VA examination, the examiner opined that the Veteran’s neuropathy was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition. The examiner explained that sensorimotor polyneuropathy is not caused by nor physiologically related in any way to a lumbar spine nerve root encroachment. Peripheral polyneuropathy is a generalized nerve injury with risk factors of endocrine disorders, nutritional deficiency (i.e. B12), toxins, familial/hereditary, or can be idiopathic in nature. This Veteran had a history of Vitamin B12 malabsorption and received injections. However, the Board found this examination to not be sufficient because it did not provide an opinion on whether any of the Veteran’s conditions were aggravated by the Veteran’s back. See February 2015 Board Remand. Therefore, a June 2015 medical opinion was obtained to precisely answer this question. The examiner opined that the Veteran’s neuropathy was not aggravated beyond its natural progression by the service-connected condition, injury or illness. The examiner stated the medical opinion echoed the previous medical opinions provided. The Veteran’s disorder of sensorimotor polyneuropathy of lower extremitatis were a generalized neuropathy condition that was a separate condition and was not physiologically related in any way to his lumbar spine nerve root encroachment. In a July 2017 Board remand, the Board accepted the medical opinion concerning aggravation but still need an opinion for direct service connection. See also May 2019 Board Remand. Therefore, the VA obtained a final remand in March 2020. The examiner opined that the Veteran’s neuropathy was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran was service connected for bilateral lower extremity radiculopathy, and that per his 2013 EMG study, his mild generalized axonal sensorimotor polyneuropathy was explainable by his elevated blood glucose. The Board acknowledges the Veteran’s assertion that his bilateral neuropathy is related to his military service or service-connected lumbar strain. However, lay persons are not considered competent to medically attribute a condition to an in-service injury or service-connected disability, as doing to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship. The evidence of record shows the Veteran has a current diagnosis of bilateral neuropathy, service connection for lumbar strain, and in-service complaints of pain in his legs. However, the record does not show that the diagnosis developed within one year of discharge from service. The medical opinions of record consistently stated that the Veteran’s neuropathy was not physiologically related to his lumbar strain. Accordingly, the criteria for entitlement to service connection for bilateral neuropathy has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for bilateral neuropathy that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.