Citation Nr: 21012707 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-18 715 DATE: March 5, 2021 ORDER Service connection for a left leg disability, to include peripheral neuropathy is denied. Service connection for a right leg disability, to include peripheral neuropathy is denied. FINDINGS OF FACT 1. Peripheral neuropathy of the left leg was not present during service, or for years thereafter, and was not caused by any incident of service. 2. Peripheral neuropathy of the right leg was not present during service, or for years thereafter, and was not caused by any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left leg have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the right leg have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from December 1944 to October 1946, including service during World War II. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2018 rating decision issued by a Department of Veterans Affairs (VA)Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in January 2020; a transcript of that hearing is of record. In February 2020, the Board remanded the Veteran’s claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (20177). 38 U.S.C. § 7107(a)(2) (2012). Service Connection The Veteran contends that service connection is warranted for his bilateral leg disability, to include peripheral neuropathy. The Veteran contends his leg problems were caused by several factors from military service. As a radio operator his job entailed carrying a 60-pound communications radio on his back, having to lace his too small boots up too tightly, cold weather exposure, and non-freezing water immersion. The Veteran believes all these factors of his military service caused his current leg problems as documented in the claims file and reiterated in his February 2021 appellate brief. 1. Service connection for a left leg disability, to include peripheral neuropathy 2. Service connection for a right leg disability, to include peripheral neuropathy Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran was given an in-person VA examination, to determine the etiology of his bilateral leg disability in November 2020 which also included an electronic claims file review while on remand from the Board. The examiner verified the current disabilities of the Veteran’s left and right lower extremities as peripheral polyneuropathy, thereby satisfying the first requirement for service connection. In reviewing the Veteran’s medical history from service, the examiner found the following: “The discharge physical exam in September 1946 indicates that the Veteran had no complaints and no h/o malaria, dysentery, syphilis, injuries, operations or hospitalizations ... The neurological exam was normal.” In further review of the Veteran’s claims file, the examiner found that in 2013 he reported paresthesias and a TSH and vitamin B12 level were checked. The vitamin B12 level was low, but still in the normal range at 245. There is no mention of peripheral neuropathy symptoms during exams at the VA in 2013. In 2014 the Veteran reported a 6-month history of numbness in the feet and the provider noted under replacement of hypothyroidism and suggested the symptom could be due to vitamin B12 deficiency. In 2015 the Veteran’s civilian primary care provider linked his paresthesias to diagnosis of hypothyroidism. In Dec. 2015 the Veteran requested a vitamin B12 level be done, and it was normal. In 2018 the Veteran claimed service connection for peripheral neuropathy secondary to carrying a 60-pound radio in service. In 2019 his primary care provider checked a vitamin B12 level, and it was reportedly low normal. Results are not found in the materials provided. Additionally, the 2020 VA examiner found in April 2019 that the Veteran reported numbness in his feet that started in service when he would lace his shoes up tightly to avoid sprains. The Veteran’s appeal of a negative decision concerning service connection for peripheral neuropathy results in this visit. At the November 2020 exam the Veteran denied a history of cold injury or nonfreezing injury. He said that during a two-week period of maneuvers he laced his shoes tightly and carried a 60-pound radio on his back and at the end of the maneuvers he had numbness and feelings of coldness in his feet. He did not recall his feet turning red, swelling, sweating, or having blisters. He later found that he had grown (he was 19 years old at the time) and his shoes were too small. Another time he was hospitalized for the flu and his feet were cold and a nurse brought him a hot water bottle. The Veteran related various other incidents of his feet getting cold easily (after a long car ride in winter without a heater, at the end of a day in wet boots doing forestry work). During the 2020 VA exam, the Veteran reported current symptoms are numbness on the bottom of the feet. His feet feel cold. He is not sure he can wiggle his toes. He has difficulty with balance and uses a cane occasionally, mostly when going downhill. He continues to take vitamin B12 and he takes thyroid replacement medication. The examination found that the Veteran has mild incomplete paralysis of his left and right sciatic nerves. After talking to the Veteran, reviewing the claims and current medical literature on the subject, the 2020 VA examiner opined, “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner provided the following rationale for her opinion: Peripheral polyneuropathy is a condition of multiple small nerve endings (Up to Date, Overview of polyneuropathy). It has a variety of causes, but carrying heavy objects, the etiology the Veteran initially advanced for his symptoms (Disability application 6/7/18), is not one of them. Because peripheral neuropathy affects multiple small distal nerve endings it is not medically plausible that the condition would result from carrying a heavy object on the back or elsewhere because such an activity does not affect the distal nerve endings. None of the Veteran's treating providers have indicated that carrying heavy objects or potential spinal pathology due to carrying heavy objects are the cause of the Veteran's polyneuropathy. Instead the evaluation for a cause of the condition has centered on systemic factors such as vitamin B12 deficiency and hypothyroidism. One of his providers linked the peripheral polyneuropathy to the Veteran's hypothyroidism. Thus, carrying heavy objects can be excluded from the potential causes of the right lower extremity polyneuropathy. In April 2019 the Veteran reported to his primary care provider the new history of having numbness in the feet after lacing his boots too tightly in service and he indicated that he has had numbness in the feet since that time. He gave a similar history at his Board hearing. Mechanical compression of the distal nerves may result in temporary numbness in the constricted area, but that mechanical compression does not cause permanent damage to the nerves. Though it continued to recur in certain circumstances (cold weather exposure), the Veteran indicated that the foot numbness resolved after removing the boots which indicates that permanent nerve damage did not occur. He specifically stated in the Board hearing that he had no foot numbness or coldness while stationed in a warm climate (Italy), another indication that constriction did not cause permanent nerve damage that would result in peripheral polyneuropathy. The Veteran did not have foot numbness on the exit physical exam. Thus, mechanical constriction of the feet in service caused by wearing tightly laced boots or boots that were too small cannot be the cause of the peripheral polyneuropathy. During the Board hearing and the day of examination the Veteran reported incidents when his feet became physically cold and numb in cold environments and mistakenly equated that coldness with the constant sensation of coldness he now experiences from the peripheral polyneuropathy. Physiologically the two situations are completely separate. The sensation of coldness and numbness that accompanies exposure to a cold environment results from vasoconstriction to preserve heat. It is not at all unusual that such a response would occur in the situations the Veteran describes (wearing wet boots during training, being ill on a cold hospital ward, wearing wet boots in a cold environment doing forestry work, a long car ride in winter without a heater) and the response is normal. It is not an indication of peripheral polyneuropathy. The constant sensation of coldness & numbness in the feet that he now experiences is a manifestation of the peripheral polyneuropathy, is caused by damage to multiple small nerve endings, and the symptoms he describes are common for peripheral polyneuropathy (Up to Date, Overview of polyneuropathy). Peripheral polyneuropathy, however, is not caused by the normal vasoconstriction that occurs in cold environments (Up to Date, Overview of polyneuropathy). There is no indication in the records provided that the Veteran had a cold injury (frostbite) or a nonfreezing cold injury (trench foot) during service that would result in or predispose to development of peripheral polyneuropathy. He specifically denies having had a cold injury or a nonfreezing cold injury and symptoms in service that would have potentially indicated those injuries (Up to Date, Frostbite: Emergency care and prevention & Nonfreezing cold water (trench foot) and warm water immersion injuries). While he reports foot coldness and numbness in cold environments as indicated above, that sensation is normal and not an indication of peripheral polyneuropathy or of a cold injury or nonfreezing cold injury. The Veteran offers no post-service symptoms suggestive of either of those injuries. Further, the peripheral polyneuropathy symptoms did not manifest to a significant degree until 2013 which is over 60 years from the time the Veteran left service. A peripheral polyneuropathy due to cold or nonfreezing injuries would have manifested much earlier (Up to Date, Frostbite: Emergency care and prevention & Nonfreezing cold water (trench foot)). Again, the Veteran's lay statements as to his symptoms of foot coldness in cold environments mistakenly equate that coldness with the constant sensation of coldness he now experiences from the peripheral polyneuropathy. The Veteran's treating providers have also not indicated a relationship between any of the Veteran's in-service duties and symptoms and the current peripheral polyneuropathy and have instead indicated or implied that hypothyroidism is the cause. In conclusion, after considering the Veteran's lay statements including but not limited to his January 2020 hearing testimony regarding the onset, progression, and symptomatology of his bilateral leg condition, the April 2019 report of Dr. H.H. with addendum, documentation of all medical records pertinent to the remanded conditions to include the remand letter dated 02/25/2020 and transcript of hearing, for the multiple reasons stated above it is less likely than not that the currently diagnosed right lower extremity peripheral polyneuropathy was incurred in or caused by or the result of an injury, illness, condition or event during military service or causally or etiologically related to his military service to include carrying heavy equipment, marching in the infantry during World War II, tightly lacing shoes, wearing shoes that were too small, or exposure to the conditions of training exercises. The Board reviewed the claims file to include the medical treatment notes of the various medical service providers and finds nothing to contradict the findings of the 2020 VA examiner. The examiner’s opinion is extremely detailed and based upon a review of the record, lay statements and contentions of the Veteran. The examiner also supported his conclusions by citing to medical treatises. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion). To the extent to which the April 2019 report of H.H. with addendum indicated the Veteran felt there was a causal relationship between his experience in the military and his current neuropathy and he “suppose this is a possibility”, Dr. H. and his colleagues explained that “it is very difficult to make that diagnosis with any certainty” and also stated that “trying to establish a causal relationship would be extremely difficult.” In other words, to the extent this suggests a possibility, this opinion is equivocal and is less probative. See generally, Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical professional’s use of equivocal terms such as “may” or “may not” was too speculative to constitute a definitive opinion on issue of causation). The Veteran’s is competent to relay his experiences in service to include exposure to cold and immersion, too small boots with too tight laces, and having to carry heavy equipment on his back as part of his job in service. The Board finds the Veteran’s testimony competent and credible in relaying the symptoms he had as a result of those experiences, but because the nature of his current disability is not like having a broken bone, something for which a lay person is competent to provide a nexus opinion, the Board accords the Veteran’s opinion that the events in service caused his current neuropathy little weight. A nexus opinion for peripheral neuropathy requires specialized medical training and knowledge. In this case, The Board finds the November 2020 VA examiner competent as a medical doctor and finds her nexus opinion on the subject, uncontradicted by the Veteran’s own private physicians, credible and deserving of great weight. Overall, the preponderance of the evidence is against the Veteran’s claim for service connection of his bilateral legs’ disability. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, Associate 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.