Citation Nr: 21026427 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 10-02 300 DATE: May 3, 2021 ORDER Service connection for peripheral neuropathy of the bilateral lower extremities is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's peripheral neuropathy of the bilateral lower extremities was causally related to his service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral lower extremities 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 FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1966 to February 1969. He died in March 2018. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. In January 2015, the Veteran testified at a Board video-conference hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing has been associated with the record. Although the appellant requested and was scheduled for another hearing in June 2019, she did not appear and did not offer good cause for her absence. She has also not subsequently requested that the hearing be rescheduled. Accordingly, her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). This case was previously before the Board in February 2015, May 2016, April 2017, October 2019, and July 2020. In February 2015 and May 2016, the case was remanded to the agency of original jurisdiction (AOJ) for additional development. In April 2017, the Board denied the Veteran's claim. The Veteran appealed the Board's April 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through his then-attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. In October 2019, July 2020 and most recently in December 2020, the Board again remanded the claim for further development. The Board finds that there has been substantial compliance with most recent December 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to service-connected musculoskeletal lower extremity disabilities Legal Criteria To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303 (a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). Factual Background & Analysis The Veteran contended during the January 2015 hearing that his bilateral lower extremity peripheral neuropathy was being aggravated by service-connected knee and foot disabilities. The Veteran was afforded a VA examination in connection with his claim in May 2015. The examiner opined that it was less likely than not that the Veteran's lower extremity peripheral neuropathy began during service, was related to service, or was caused/aggravated by service, stating that the claimed conditions were at least as likely as not related to the Veteran's long-standing medical problems which included diabetes mellitus, type II, complications of renal insufficiency, and vascular disease. In May 2016, the AOJ sought an addendum opinion regarding secondary service connection. The examiner opined that it was less likely than not that the Veteran's lower extremity peripheral neuropathy was related to his in-service foot fracture that impacted his sciatic nerve. He reasoned that the sciatic nerve and peripheral neuropathy were two different conditions, and that the foot fracture itself was unlikely to cause peripheral neuropathy and/or the impacted sciatic nerve. A May 2017 correspondence from S.C., M.D, who had treated the Veteran from 1993 onwards, stated that the Veteran developed diabetes and that this led to peripheral vascular disease, neuropathy, kidney failure and foot infections. In May 2020, an examiner offered a negative nexus opinion regarding causation, but regarding aggravation stated only that the available information was silent. In August 2020, the AOJ obtained another opinion. The examiner offered a negative nexus opinion, reasoning that the Veteran was diagnosed with diabetes shortly after discharge, and that the neuropathic pain in his legs/knees was more likely related to neuropathy from diabetes. She also noted that vascular changes were noted on x-ray imaging that were consistent with advancing diabetes and secondary peripheral vascular disease from the diabetes. Finally, she noted trauma on the distal bones of the legs that contributed to pain in the legs but stated that trauma did not create his neuropathy symptoms. Another VA medical opinion was obtained in January 2021. The examiner opined that it is less likely than not that the Veteran's bilateral lower extremity peripheral neuropathy was caused or aggravated by his service-connected knee disabilities. The examiner cited to the medical evidence of record including an August 2020 VA neurologist's assessment which found that the Veteran's neuropathic pain in the legs was more likely related to his non-service-connected diabetes. The neurological clinician remarked on the vascular changes apparent in February 2017 x-rays which were consistent with advancing diabetes and secondary peripheral vascular disease from the diabetes. The neurological clinician further noted that while there was trauma noted on the distal bones of the legs that contributed to pain, this trauma did not create his neuropathic symptoms. The Board has carefully reviewed the lay and medical evidence of record and finds that the most probative medical evidence weighs against finding that the Veteran's bilateral lower extremity peripheral neuropathy was caused or aggravated by his service-connected musculoskeletal lower extremity disabilities. Initially, the Board finds that the May 2017 correspondence from Dr. S.C., M.D which attributes the onset of peripheral neuropathy to non-service-connected diabetes to be highly probative considering that this physician treated the Veteran for a period of 25 years. Additionally, the January 2021 VA examiner's negative causation and aggravation opinion was based on a review of all the medical evidence and the examiner's medical training and expertise. Moreover, the opinion cites to the May 2020 VA neurologist's findings that the Veteran's bilateral lower extremity peripheral neuropathy is attributable to his non-service-connected diabetes, which is particularly probative given this clinician's specialty in neurology. The Board has considered the Veteran's contentions made during his lifetime regarding the possible causal relationship between his bilateral lower extremity peripheral neuropathy and his service-connected musculoskeletal lower extremity disabilities. However, as a lay person, the Veteran did not have the training or expertise to render a competent nexus opinion regarding the etiology of his bilateral lower extremity peripheral neuropathy which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that deals with the complexities of the neurological system. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). In sum, there is no opinion from a medical professional (i.e., a clinical opinion based on review of pertinent records containing an adequate rationale to support its findings) that it is as likely as not that the Veteran's bilateral peripheral neuropathy of the lower extremities was caused or aggravated by his service or a service-connected disability, to include service-connected musculoskeletal lower extremity disabilities. To the contrary, as discussed, both private and VA medical opinions of record convey that this disability was causally related to non-service-connected diabetes. Consequently, the Board finds that the preponderance of the evidence is against the appellant's claim and the claim must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.