Citation Nr: 21013434 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-08 092 DATE: March 9, 2021 ORDER Service connection for a bilateral foot neuropathy disability is denied. FINDINGS OF FACT 1. The Veteran did not have a preexisting neurologic disability affecting the feet. 2. The Veteran’s current diabetic peripheral neuropathy affecting the feet did not manifest during service or within a year of service discharge and is not otherwise attributable to service, to include as due to contaminated water at Camp Lejeune. 3. The Veteran is not service-connected for diabetes to allow for secondary service connection for the current peripheral neuropathy affecting the feet. CONCLUSION OF LAW The criteria for service connection for a bilateral foot neuropathy disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1987 through September 1989. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2014. In June 2013, October 2014, and August 2015, the Board remanded the Veteran’s claims of service connection for diabetes mellitus and neuropathy for further development. In May 2018, the Board denied entitlement to service connection for diabetes and a foot neuropathy disability. The Veteran appealed from this decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 Order, the Court granted a December 2018 Joint Motion for Partial Remand (JMPR), to vacate and remand the May 2018 Board decision as to these two issues. In August 2019, the Board remanded both issues for further development. In July 2020, the Board denied service connection for diabetes and remanded the issue of service connection for a foot neuropathy disability. The foot disability now returns from remand for further consideration by the Board. The prior remand directives were at least substantially completed, and there is no argument or indication of a need for additional development for a fair adjudication. 1. Service connection for a bilateral foot neuropathy disability The Veteran seeks service connection for diabetic peripheral neuropathy of the feet or a nerve disease of the feet. He has raised several theories for his claim. See, e.g., September 2010 claim and statement, January 2011 notice of disagreement, March 2012 VA Form 9 and correspondence, September 2014 Board hearing, January 2015 VA examination, and February 2018 correspondence. The Veteran primarily contends that his condition of the feet, along with diabetes, was present during service and since that time. The Veteran describes having tingling or numbness in the feet or toes, discolored nails, infection, blisters on the feet after runs, and swelling around the ankles during and since service. He asserts that he was not properly diagnosed with type II diabetes mellitus until 1997 when he collapsed due to near fatal blood sugar levels. The Veteran reports seeking private treatment for that episode, but no followup treatment until September 2010 when he began VA treatment. In the meantime, he attempted to manage the condition through diet and exercise due to no access or funds for prior medical care, but his condition worsened over the years. The Veteran has also asserted that his neuropathy may be due to exposure to contaminated water during service at Camp Lejeune, or to exposure to unidentified toxic chemicals through his general duties as a warehouse clerk in service. Finally, the Veteran has asserted that he had nerve pain in the feet as a child, such that he had a preexisting foot problem that was aggravated by service. He states that diabetes mellitus is a hereditary or genetic disease that is prevalent in his family, but he believes that he had the condition during service. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (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). There are also several presumptions concerning the in-service incurrence and nexus elements for direct service connection, which will be discussed below as relevant. Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The current disability element is established with a diagnosis of diabetic peripheral neuropathy affecting the feet. For example, a December 2020 VA podiatry treatment record noted a diagnosis of diabetes mellitus with neuropathy and provided diabetic foot education and discussed the implications of sensory loss. The record also noted foot diagnoses of tinea pedis, onychomycosis for the nails, and callouses. Similarly, prior VA treatment records in June 2015 and September 2017 noted foot pain of diabetes with neuropathy, along with keratosis, onychomycosis, and tinea pedis. VA examiners in January 2015, February 2017, January 2020, and August 2020 also noted diabetic peripheral neuropathy. Concerning secondary service connection, service connection for diabetes mellitus has been denied. Therefore, the Veteran’s foot disability cannot be granted based on causation or aggravation as secondary to that disability as a matter of law. Concerning direct service connection, the in-service injury or disease element is established by treatment for foot complaints and eligible service at Camp LeJeune. The Veteran’s June 1986 service enlistment examination reflects a subjective report of “foot problems” in his Report of Medical History. The Veteran identified having four stitches in his foot at age 6. The physician’s summary noted that the Veteran had cramps in his legs from playing football, tinea pedis that was not considered disabling, and sutures in the right foot with no sequelae. The Report of Medical Examination found clinically normal feet and lower extremities. As noted above, the Veteran has also reported for his claim that he had “nerve pain” in the feet prior to service that were aggravated in service. However, he is not competent identify whether his complaints were neurological in nature or whether he had an actual foot disability prior to service. These are medically complex questions that require knowledge of the potentially involved bodily systems and interpretation of the Veteran’s credible medical history, medical records, and any required testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As directed in a prior remand and in the Joint Motion for Remand, VA obtained an opinion as to whether the Veteran had a preexisting foot disability. In January 2020, a VA examiner opined that his reported problems in childhood were less likely than not related to his current problems. In August 2020, another VA examiner reviewed the relevant records and opined that there was no preexisting disability based on the medical notations in the enlistment examination. Therefore, the presumption of soundness applies and service aggravation is not applicable; instead, direct service incurrence will be considered. 38 C.F.R. §§ 3.304, 3.306. As discussed further below, the Veteran was treated his feet during service in October 1987 (including pain and numbness to the toes) and in June 1988. No neurologic diagnosis was given; the diagnosis was tinea versicolor or tinea pedis. Additionally, the Veteran’s service personnel records reflect that he served at least 30 days at U.S. Marine Corps Base Camp LeJeune, North Carolina, in 1987, or between August 1, 1953, and December 31, 1987. Therefore, he is presumed to have been exposed to certain contaminants in the water supply during such service. See 38 C.F.R. § 3.307(a)(7)(iii). For these purposes, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems during this period. 38 C.F.R. § 3.307(a)(7)(i). Although the current disability and in-service injury or disease elements are met, the nexus element is not established under any reasonably raised theory. Concerning the Camp LeJeune presumption, if an individual with the eligible service described in section 3.307(a)(7)(iii) develops a disease listed in § 3.309(f), VA will presume that the listed disease is due to exposure during such service. 38 C.F.R. § 3.307(a)(7)(iv). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). The diseases listed in § 3.309(f) must have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). In this case, the Veteran’s foot neuropathy disability is not a listed disease. Therefore, the presumption does not apply to establish service connection. Although the presumption does not establish entitlement, service connection may still be granted if the evidence establishes a direct link to the Veteran’s presumed Camp LeJeune exposure or other injury or disease during service, to include through continuity of symptomatology for a chronic disease, as noted below. As discussed below, the medical opinions as to Camp LeJeune exposure and other direct nexus to service depend, in part, on the date of onset or diagnosis of the Veteran’s diabetes. Therefore, the Board will first discuss the timing of his symptoms and diagnosis. The Veteran is competent to report the nature and timing of his observable symptoms. However, he is not credible as to having had continuous neurologic or other symptoms in the feet since service because such reports are inconsistent with the more probative evidence, as discussed below. During service, a treatment record in June 1987 noted tinea versicolor. An October 1987 record reflects complaints of pain in the feet for one week, described as a sharp pain in the toes and sides of the feet that comes and goes, as well as numbness to the toes. The Veteran denied back pain and there was no significant evidence of flat feet. The examination was found to be normal, with good reflexes, symmetric strength, good capillary response, and ability to distinguish a sharp and dull stick on the feet and toes. The provider diagnosed tinea versicolor and advised the Veteran to return if his pain or numbness becomes constant and apply lotrimin. There are no subsequent complaints of numbness in the service records, and he did not return for treatment of the feet for more than one year, as noted below. This suggests that the Veteran’s complaints in 1987 were temporary in nature. The Veteran expressly identified his symptoms as being present for one week, i.e., not an ongoing or persistent basis for the approximately one year since his June 1986 enlistment or prior to that time, and he did not seek followup treatment. In September 1988, the Veteran complained of brown spots on both feet for three weeks and cuts under the toes that hurt when walking. Examinations showed that both feet had a “small form of tinea versicolor” from the ankles to the toes. There was no swelling (edema) or discoloration. The left foot had broken skin under the 4th digit toe and was dry and scaly. Circulation was within normal limits and there was no pain on palpation. The provider diagnosed tinea pedis and again advised the Veteran to apply lotrimin for 14 days and return if the problem worsened. The provider also advised the Veteran to shower daily and apply antifungal foot powder, and educated the Veteran on proper hygiene for the feet. Again, there are no subsequent complaints of similar problems with the feet in the service records. Instead, the August 1989 Report of Medical Examination for separation reflects normal feet and lower extremities. This suggests that the Veteran’s complaints in 1988 were also temporary in nature. The Veteran expressly identified his symptoms as being present for three weeks, i.e., not an ongoing or persistent basis since prior treatment more than one year earlier, and he did not seek followup treatment. Additionally, these records reflect that the Veteran’s conditions in 1987 and 1988 were diagnosed as tinea or a fungal infection of the skin with antifungal treatment, and he was educated as to proper hygiene. These records do not suggest a neurologic component to the Veteran’s foot complaints. After service, the Veteran has reported that he had ongoing symptoms that he believed were due to diabetes and neuropathy, but he did not seek treatment for many years due to lack of access to medical care. He identified one episode of private treatment in 1997 when he was diagnosed with diabetes, although he has not provided or authorized VA to obtain any such records. Although the Veteran is competent to report this history and is credible as to the reasons for not seeking care, he is not competent to state whether his symptoms were neurologic in nature. Contemporary medical evidence is not required to show a disability or incurrence during service. However, the lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). In this case, the Veteran’s reports of ongoing or chronic foot symptoms since service, with or without treatment, are inconsistent with his reports for VA treatment beginning in 2010. Specifically, VA nursing and primary care treatment records on September 23, 2010, noted that this was the Veteran’s first visit to VA. He reported being diagnosed with diabetes mellitus in 1997, but that he had not been on any medication or monitored for his diabetes. He also reported having ulcers on the feet and neuropathy in both legs, right worse than left. The provider noted a significant fam history of diabetes mellitus in his maternal grandmother. Upon examination, the Veteran had normal muscle tone, strength, and coordination; sensory examination was unremarkable, and deep tendon reflexes were equal and symmetrical. A diabetic foot examination was completed, which was abnormal for dry skin, but the pedal pulses were normal or present, and sensation examination using a monofilament was normal or intact. The Veteran was started on a diabetes mediation of metformin as well as a hypertension medication during this visit. In February 2012, the Veteran called in to request medication refills, and he asked if he might have gout because his big toe was “tingling.” A February 2012 addendum record noted that the Veteran needed to be seen within the next few months if he has a “tingling toe” and that this “could be diabetic neuropathy.” During an April 2012 annual physical, the Veteran reported black callouses on his feet. Examination showed dark insensitive callouses at the tips of both great toes and thickened darker nails at both great toes. The assessment and plan noted diabetes that was under good control and neuropathy in the toes with callous (with underlying hematoma) and decreased pulses. Diabetic shoes and socks were recommended. There was also hypertension, obesity, and hyperlipidemia. A few months later, a July 2012 VA podiatry record noted that the Veteran complained of “some tingling in his feet every once in a while.” However, neurologic examination to monofilament sensation was normal, and the skin on the feet and legs was normal with normal hair growth. The nails were also normal, and there were no callouses. The provider assessed diabetes mellitus type II without peripheral neuropathy, and hypertrophic or dystrophic nails were trimmed. In November 2012, an active problem list noted diabetes with neurological manifest as of April 2012, or the date of the annual physical summarized above. VA treatment records continued to note diabetes with neuropathy, some abnormal foot sensation on examination at times, and callouses and nail problems during diabetic foot examinations. See, e.g., records in June 2015, September 2017, November 2019, and December 2020. In November 2019 and December 2020, the Veteran reported that these problems had been present for “several years.” VA examiners in January 2015, February 2017, January 2020, and August 2020 also noted diabetic peripheral neuropathy based on the lay and medical evidence. The Veteran’s reports as reflect in his available medical records during and after service are more probative than his contrary statements for his claim because they were contemporaneous in time to the events and symptoms when his recollection was fresh. His reports for treatment were also made under circumstances when he had an incentive to give an accurate history as to the nature and timing of his symptoms in order to receive proper medical care. These reports outweigh the Veteran’s contrary reports for his claim and render him not credible as to having persistent or recurring foot symptoms on a continuous basis since service. As summarized above, the records in service reflect that the Veteran complained of temporary symptoms that were diagnosed as a skin disorder or fungal infection in 1987 and 1988. He expressly identified the timing of his symptoms as being for one week or three weeks, respectively. It is reasonable to expect that he would have reported a longer timing of symptoms if they had been present on an ongoing basis. Records after service reflect that the Veteran subjectively reported having neuropathy in the legs or feet in 2010, in the same month he filed his VA claim for service connection for diabetes with neuropathy in the feet. However, there were no objective neurologic findings or diagnosis for the feet in 2010, or until 2012. In February 2012, he reported having tingling in his toes or feet “every once in a while.” This suggest intermittent problems, not ongoing or longstanding symptoms since service. In 2019 and 2020, records noted that the Veteran’s foot problems had been present for “several years.” Even if the Veteran did potentially have neuropathy when he first sought VA treatment in 2010, when he filed his VA claim for a diabetes and neuropathy in the feet, his report of problems for “several years” is also more consistent with having ongoing problems since approximately 2010 or 2012 than continuously since his service that ended in 1989. Notably, the Veteran did not report for VA treatment having ongoing problems since service. Instead, he identified intermittent or recent symptoms. It is reasonable to expect that he would have reported a longer timing of symptoms if they had been present on an ongoing basis, particularly for approximately 30 years since his service. For the above reasons, the most probative and credible evidence establishes that the Veteran’s ongoing or chronic symptoms in the feet began many years after service and was not diagnosed as diabetic peripheral neuropathy until 2012. Other than to establish continuity of observable symptomatology, which is not found in this case, the Veteran is not competent to provide an opinion as to the cause of his current disability, to include whether it is related to symptoms during service or exposures in service. This is a medically complex question that requires knowledge of the potentially involved dermatologic (skin) and neurologic systems, the potential effects of exposure to toxins, and interpretation of the Veteran’s credible medical history and any required testing. See Jandreau, 492 F.3d at 1377. There are several negative medical nexus opinions in this case. In January 2015, a VA examiner gave an opinion that the Veteran’s diabetes and diabetic neuropathy were less likely than not incurred in or caused by service. For neuropathy, the examiner noted the Veteran had reported altered sensation of his feet and foot pain during childhood, he had one episode of treatment for foot pain in service with no followup, and there was no documentation of continued foot pain during service or within one year after service. This opinion is inadequate because it does not reflect that lack of no preexisting disability (as noted above through a subsequent August 2020 VA opinion). It also does not consider an accurate factual history of two episodes of treatment for foot complaints in service. In February 2017, a VA examiner gave an opinion that the Veteran’s diabetes mellitus and, therefore, his associated diabetic peripheral neuropathy or any other condition or symptoms secondary to diabetes, was not caused by or related to his exposure to contaminated water at Camp LeJeune. The examiner noted that the Veteran reported a first diagnosis of diabetes mellitus in 1997, which was approximately 10 years after his last possible exposure to contaminated water in service. The first available blood glucose measurements after service were in his 2010 VA treatment records, which were three times the upper limit of normal. Additionally, the Veteran’s urinalysis at his 1989 service separation examination was normal or negative for glycosuria, or blood sugar. The examiner summarized several relevant scientific or medical articles and stated that they found no association between the indicated solvent exposures and diabetes. The examiner further summarized several relevant scientific or medical articles concerning potential risk factors for developing diabetes as including being overweight, unhealthy diet, physical inactivity, family history of type II diabetes, races or ethnicities including African American, increasing age, high blood pressure, and abnormal cholesterol and triglyceride levels. These risk factors are noted in the Veteran’s post-service medical records. Accordingly, the examiner opined that his diabetes and associated neuropathy are not related to Camp LeJeune exposures. This opinion is highly probative because it gave a rationale applying medical expertise, including consideration of relevant medical and scientific literature, to an accurate factual history for this Veteran’s case. The noted history is consistent with the Board’s credibility findings as to the nature and timing of the Veteran’s relevant symptoms and diagnoses. There is no contrary medical opinion. In January 2020, the 2015 VA examiner gave another opinion that the Veteran’s current disability of diabetic peripheral neuropathy was less likely than not incurred in or caused by service. The examiner stated that service treatment records or medical records proximal to active duty service did not document a peripheral neuropathy of the feet. The Veteran subjectively reported that his bilateral foot symptoms started in childhood, but there was no documentation in medical records of continuous numbness in the feet during service. The current examination findings supported the diagnosis of bilateral diabetic peripheral neuropathy of the feet. The preponderance of medical literature does not support that a subjective sensation of numbness in a child’s feet will later lead to the onset of diabetes and subsequently diabetic peripheral neuropathy. Therefore, the examiner stated that it is less likely as not that any foot condition experienced in the Veteran’s childhood was related in any way to his current bilateral diabetic peripheral neuropathy of the feet. The examiner also stated that it was less likely than not that the Veteran’s foot symptoms experienced while in service were associated with his current disability. Although this examiner based the rationale largely on a lack of medical documentation of symptoms or a diagnosis, the summary of the Veteran’s factual and medical history is consistent with the Board’s independent review of the evidence and credibility findings as to the nature and timing of symptoms. Accordingly, the examiner applied medical expertise to an accurate history in this Veteran’s case, and the opinion remains probative for the etiology of the disability. In August 2020, another VA examiner stated that she reviewed the evidence, diagnostic tests, and relevant medical literature, and also opined that the current disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran reported intermittent pain in his bilateral feet (right greater than left), and tingling and numbness that he described as annoying. Service treatment records reflect treatment for intermittent sharp pain in the toes and feet and numbness in the tips of his toes in 1987, with a normal examination and no explanation for his symptoms. There was no followup for those complaints and no continuity of symptomatology. The examiner stated that post-service treatment records showed a diagnosis of diabetic neuropathy in 2018, after records in 2016 did not diagnosis diabetic neuropathy. The examiner concluded that the Veteran had isolated symptoms of foot pain and numbness or tingling during service with no continuity of symptomatology, and he was diagnosed with diabetic neuropathy in 2018 after numerous primary care and podiatry visits starting in 2010. This examiner recorded a slightly inaccurate history, particularly the notation of neuropathy being first diagnosed in 2018. As discussed above, the evidence shows a first diagnosis of neuropathy of the feet in 2012, followed by some objectively normal examinations and some abnormal findings. Nevertheless, the examiner’s general finding of a neuropathy diagnosis after 2010, or decades after service, is still consistent with the Board’s finding based on independent review of the evidence. The examiner’s notation of only one episode of treatment for numbness in the toes or feet during service is also consistent with the Board’s independent review, although the Veteran was treated for brown spots and cuts under the toes, but no pain, in 1988. Additionally, the examiner’s finding of no continuity of symptoms during service or until after 2010 is consistent with the Board’s credibility findings as to the nature and timing of symptoms and diagnoses. Accordingly, the examiner applied medical expertise to an accurate history in this Veteran’s case, and the opinion remains probative for the etiology of the disability. There is no other medical opinion to suggest a link between the current diabetic neuropathy of the feet and any injury or disease in service, to include exposure to contaminated water at Camp LeJeune. There is no medical suggestion that tinea pedis or other current foot diagnoses are related to his complaints or treatment in service. Instead, he was advised as to proper hygiene for his tinea pedis in service, which was temporary, and his more recent conditions were attributed to diabetes. It is possible that the Veteran was exposed to various chemicals through his skin or respiratory system (breathing) through his duties as a warehouse clerk. However, he has not provided information to identify any specific chemicals other than those noted as related to Camp LeJeune water contaminants. There is also no medical suggestion or indication that his current foot complaints or neuropathy may be due to any other chemical exposure during service. The Veteran’s broad and conclusory statements in this regard are not competent and are insufficient to trigger the need for a medical opinion for this question. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010). Organic disease of the nervous system is considered a chronic disease that will be presumed related to service if it was noted or diagnosed as chronic in service; or if it manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). However, as explained above, the weight of the evidence reflects that the Veteran’s neuropathy did not manifest during service or within one year after service, and there was no continuity of symptomatology. Instead, his ongoing or chronic symptoms and diagnosis did not occur until many years after service discharge. Therefore, the chronic disease presumption does not apply to establish service connection. In summary, the preponderance of the evidence is against service connection for a bilateral foot neuropathy disability under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.