Citation Nr: 21014860 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-19 113 DATE: March 16, 2021 ORDER Service connection for peripheral neuropathy of the lower extremities is granted. FINDING OF FACT The Veteran had active duty in the Southwest Asia theater of operations during the Persian Gulf War, and has peripheral neuropathy of the lower extremities without conclusive pathophysiology or etiology. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the lower extremities are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to October 1975, and from March 2003 to June 2004, with additional service in the Army National Guard and Army Reserve. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office. In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The matter on appeal was remanded by the Board in September 2018, and again in September 2020. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include neurologic signs or symptoms. 38 C.F.R. § 3.317(b). Service connection for peripheral neuropathy of the lower extremities is granted. The Veteran's service records confirm that he had active duty in the Southwest Asia theater of operations during the Persian Gulf War and is therefore a Persian Gulf Veteran. See 38 C.F.R. §§ 3.2 (i), 3.317(e). Treatment records as early as 2010 reflect complaints of peripheral neuropathy symptoms of the lower extremities, and numerous evaluations since then, including electromyography (EMG) testing, has revealed sensorimotor peripheral polyneuropathy of the lower extremities. The Veteran submitted a November 2018 statement from his private podiatrist, Dr. L.K., indicating that the Veteran had lower extremity peripheral neuropathy. Dr. L.K. stated that, while he could not connect the cause of the Veteran’s condition with a specific overall health condition, causes other than exposures he received during his career working in government service had been eliminated. However, as discussed in the Board’s September 2020 remand, Dr. L.K. did not explain what other causes had been eliminated, how he had eliminated them, on what medical testing or evidence such a determination had been based, or to what the Veteran was exposed in service or how it would have resulted in his current neuropathy. September 2019 EMG testing revealed abnormal electrodiagnostic study of the right and left lower extremities, and mildly-abnormal electrodiagnostic study of the left upper extremity. Electrodiagnostic findings were consistent with a severe sensorimotor peripheral polyneuropathy of the lower extremities and a mild, sensory-only peripheral neuropathy of the left upper extremity. The EMG report noted: “Unfortunately, the findings on this electrodiagnostic study cannot suggest a particular pathology is the likely etiology.” The report further stated that there was “[n]o convincing electrodiagnostic evidence of a focal left ulnar motor neuropathy at the wrist/forearm/elbow, myopathy of the muscles tested in the right or left lower extremities, nor right or left L2-S1 radiculopathy.” On September 2019 VA examination, the examiner commented that “[u]ntil veteran has the input of a specialist in the field of Neurology to diagnose the etiology of his sensorimotor peripheral polyneuropathy of lower extremities, there is insufficient clinical evidence to state that he has a specific neurologic diagnosis; an undiagnosed illness; a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; or a diagnosable chronic multi-symptom illness with a partially explained etiology.” Therefore, “[a]n opinion as to whether he has a neurologic condition due to an environmental hazard exposure in [Southwest Asia] is not possible without a Neurologist workup and evaluation to explain why he has the abnormal EMG findings.” The Board, in September 2020, thus remanded the matter on appeal for any necessary neurological workup and evaluation regarding the Veteran’s peripheral neuropathy and abnormal EMG findings, and another opinion as to whether the Veteran’s lower extremity neurological symptoms, described as peripheral neuropathy, resulted from service, to include environmental hazards experienced while in Southwest Asia in 2003 and 2004. On October 2020 VA examination, the Veteran was diagnosed as having left upper and bilateral lower extremity peripheral neuropathy. The examiner noted the results of the September 2019 EMG, and that it had revealed sensorimotor peripheral polyneuropathy of the lower extremities. The VA examiner remarked that the Veteran had not only peripheral neuropathy as diagnosed on the current exam, but also diabetic neuropathy and bilateral lower extremity radiculopathy, although the symptoms and findings could not be separated without speculation due to symptom overlap. The October 2020 VA examiner also provided the opinion that that the Veteran’s diagnosed peripheral neuropathy was less likely than not incurred in or a result of active duty service, to include as due to environmental hazards experienced while in Southwest Asia in 2003 and 2004. The examiner explained that the Veteran’s neuropathy etiology, although not established, seemed multifactorial given his history of morbid obesity with metabolic syndrome, diabetes, and low back condition/pains with radiculopathy. The examiner further remarked that there was “[n]o clinical evidence of any exposure in [Southwest] Asia causing neuropathy alone/ independent of other comorbid conditions as above.” The VA examiner, in October 2020 addendum opinions, further expressed that the Veteran’s peripheral neuropathy was a disease with a clear and specific etiology and diagnosis—as opposed to an undiagnosed illness or medically unexplained chronic multisymptom illness—and not related to a specific exposure event during service in Southwest Asia. The examiner provided the rationale that the Veteran was super morbidly obese with multiple chronic medical problems and both lower extremity neuropathy, which seemed multifactoral with a history of type II diabetes since 2015, and chronic low back pain and sedentary lifestyle. The Board notes that, while the examiner described the Veteran’s peripheral neuropathy as “multifactoral,” in rendering a negative opinion, she remarked that there was “[n]o clinical evidence of any exposure in [Southwest] Asia causing neuropathy alone/ independent of other comorbid conditions as above”; it is unclear whether the examiner was expressing the opinion that such exposure, in addition to other factors, might have resulted in the Veteran’s neuropathy. Furthermore, the VA examiner, in determining that the Veteran’s neuropathy was a disease with a clear and specific etiology and diagnosis—as opposed to an undiagnosed illness or medically unexplained chronic multisymptom illness—and not related to in-service exposure, repeatedly described such neuropathy as multifactoral, noting his obesity, metabolic syndrome, diabetes, and low back problems with radiculopathy. However, on October 2020 examination, while noting that symptoms between the diagnoses overlapped, the examiner assessed “diabetic neuropathy” and “bilateral lower extremity radiculopathy” as separate from the left upper and bilateral lower extremity peripheral neuropathy diagnosed on examination. There is no explanation as to how the opinion that diabetes and radiculopathy were factors that explained the Veteran’s peripheral neuropathy is consistent with the assessment that such problems were separate from his bilateral neuropathy. Moreover, there is no explanation as to how the opinion that diabetes and radiculopathy were factors that explained the Veteran’s peripheral neuropathy is consistent with the September 2019 EMG report (four years after the Veteran’s diabetes diagnosis), which specifically states that that there was “[n]o convincing electrodiagnostic evidence of … right or left L2-S1 radiculopathy” and, rather, that “the findings on this electrodiagnostic study cannot suggest a particular pathology is the likely etiology” of the diagnosed peripheral polyneuropathy. In this regard, there is no opinion or other medical evidence that adequately explains the etiology of the Veteran’s peripheral neuropathy in light of the EMG findings. Given the above, resolving reasonable doubt in the Veteran’s favor, the Board finds that he has peripheral neuropathy of the lower extremities, separate from any lumbar radiculopathy or diabetic neuropathy, and without conclusive pathophysiology or etiology. He thus has a qualifying chronic disability under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Accordingly, given the circumstances of his service, peripheral neuropathy of the lower extremities must be granted. See 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.