Citation Nr: 21023327 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 07-30 684 DATE: April 20, 2021 ORDER Service connection for peripheral neuropathy of the bilateral lower extremities is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran’s peripheral neuropathy of the bilateral lower extremities is etiologically related to his active duty service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from December 1962 to December 1966 and from April 1967 to February 1984, including service in the Vietnam War. The Veteran testified before a Veterans Law Judge during an April 2010 hearing. This matter is on appeal from a February 2006 rating decision. In a November 2010 decision, the Board denied service connection for peripheral neuropathy of the bilateral lower extremities on a presumptive basis, including as a result of exposure to Agent Orange. It then remanded the remaining claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities on a direct basis to attempt to obtain additional records and afford the Veteran a VA examination. The Agency of Original Jurisdiction (AOJ) has done so. The Board denied the peripheral neuropathy claim on a direct basis in a March 2015 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2017 memorandum decision, the Court vacated the Board’s decision and remanded the case to the Board for additional development. The peripheral neuropathy claim was remanded again by the Board in February 2018 to afford the Veteran an additional VA medical opinion and again in April 2019 and December 2020 for the same reason. Although the Board finds that all of the VA medical opinions of record are inadequate, because the Board is granting the Veteran’s claim, any question as to the sufficiency of the AOJ’s compliance with its remand instructions is moot. In November 2020, the Veteran was informed that the Veterans Law Judge who conducted his hearing was not able to able to participate in the decision on appeal. He was offered the opportunity to testify at another hearing and was informed that if he did not respond within 30 days the Board would proceed without scheduling him for another hearing. He did not reply to the letter within 30 days. The Board assumes that he does not wish another hearing and will proceed accordingly. 1. Peripheral Neuropathy of the Bilateral Lower Extremities The Veteran contends that he has peripheral neuropathy of the bilateral lower extremities that was caused by or had its onset during active duty service. Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records do not note any diagnosis or report of peripheral neuropathy of the lower extremities. During an April 2004 VA treatment appointment, the Veteran reported numbness and tingling in his feet for the past thirteen years that had recently increased. He added that the tingling sometimes went up as far as his hips. The treatment provider diagnosed peripheral neuropathy affecting both lower extremities. A July 2004 VA treatment record noted that further tests were necessary to establish the etiology of the Veteran’s neuropathy and an October 2004 VA treatment record notes it as idiopathic. “Idiopathic” is defined as “of unknown cause or spontaneous origin.” Dorland’s Illustrated Medical Dictionary, 901 (33rd ed. 2020). There was therefore no determination at that time as to the cause of the Veteran’s peripheral neuropathy. In an April 2006 statement, the Veteran reported that he first noticed tingling in his feet in 1971 and that he did not seek treatment because he assumed it was due to “all the sitting [he] did performing [his] job.” He also reported that, in 1974, his spouse noticed that his feet stayed cold all the time and that they had never been similarly cold before. The Veteran reported that this was when his burning and numbness had their onset. In an October 2009 statement, the Veteran’s representative contended that medication used to treat upper extremity and upper and low back pain during active duty service could have both masked and treated his lower extremity neuropathy symptoms until they eventually worsened. During the April 2010 hearing, the Veteran testified that he first noticed symptoms of tingling in 1971 and that he did not report them then because it “[w]asn’t that bad at the time” but later worsened. The Veteran was afforded a VA examination for peripheral nerves conditions in December 2010. In its January 2017 memorandum decision, the Court found that this examination was inadequate because the examiner did not account for the Veteran’s lay statements about symptom onset during his active duty service. The Court instructed the Board to obtain an additional opinion that “expressly considers” the Veteran’s lay statements. In its February 2018 decision, the Board instructed the AOJ to afford the Veteran an additional VA medical opinion, specifically requested that the examiner’s opinions address symptoms “as reported by the Veteran throughout the record,” and instructed the examiner to presume that the Veteran’s lay statements are competent and credible. The Board also specifically instructed the AOJ to review the examination report to ensure that it was in compliance with the Board’s instructions and that it “must implement corrective procedures” if this was not the case. The Veteran was afforded an additional VA examination in August 2018. Despite these instructions from the Court and the Board, the examiner’s opinion relied entirely on the absence of documentation in service treatment records and did not acknowledge the Veteran’s lay statements, much less attempt to reconcile them with this opinion. For this reason, in its April 2019 decision, the Board instructed the AOJ to obtain another medical opinion, with the same instructions as before. The Veteran was afforded an additional VA medical opinion in November 2019. The examiner’s opinion acknowledged the Veteran’s lay statements but dismissed them solely because there was “no documentation to support this,” which is effectively the same as relying entirely on the absence of documentation in service treatment records. The examiner also found that it was “unlikely” the Veteran’s reports regarding onset in service were accurate given the lack of documentation, despite the Board’s instructions to presume those statements are competent and credible. For this reason, in its December 2020 decision, the Board again instructed the AOJ to obtain another medical opinion, with similar instructions but with added emphasis and clarity as to what would and would not constitute an adequate opinion in this case. The Veteran was afforded an additional VA medical opinion in December 2020. The examiner’s opinion acknowledged the Veteran’s lay statements but found that any opinion as to the onset of the Veteran’s symptoms “would be pure speculation” because they were not documented in his service treatment records. This opinion again treated the absence of documentation in service treatment records as dispositive by effectively finding that no other evidence could ever overcome it. This case has been pending since October 2004, more than sixteen years ago. In that time, the Veteran has been afforded numerous VA medical opinions with regard to the etiology of his peripheral neuropathy of the lower extremities but, despite the best efforts of the Board and the Court, none of those opinions are adequate to decide the Veteran’s claim. The record contains a diagnosis of peripheral neuropathy of the lower extremities during the period on appeal and multiple lay reports of onset of symptoms during active duty service and continuity from then to the present, with explanations as to why the Veteran did not seek treatment for those symptoms at first. Given the insufficient rationales supporting the multiple medical opinions of record, the Board finds that the lay reports of onset of symptoms in service and continuity of symptomatology thereafter are of the greatest probative value. Further development would result in undue delay to a claim that has already been pending for more than sixteen years. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s peripheral neuropathy of the bilateral lower extremities is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for peripheral neuropathy of the bilateral lower extremities is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.