Citation Nr: 21028410 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-33 231 DATE: May 11, 2021 ORDER Entitlement to service connection for neuropathy of bilateral lower extremities is denied. FINDINGS OF FACT 1. The Veteran has been diagnosed with diabetic peripheral neuropathy of the lower extremities; a preponderance of the competent and the probative evidence of record is against a finding that the Veteran's neuropathy of the lower extremities had onset in service or within the first pos- service year or is etiologically related to active service. 2. The Veteran's neuropathy of bilateral lower extremities is not shown to be a manifestation of undiagnosed illness or medically unexplained chronic multi-symptom illness. CONCLUSION OF LAW The criteria for entitlement to service connection for neuropathy of bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1974 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the case for further development. Entitlement to service connection for neuropathy of bilateral lower extremities Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Certain chronic diseases, including organic diseases of the nervous system, may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. Additionally, service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a chronic disability resulting from undiagnosed illness or a medically unexplained chronic multisymptom illness that became manifest either during active military 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, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(i)-(ii). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(2). For purposes of 38 C.F.R. § 3.317, objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). In addition, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). A chronic disability does not meet the statutory requirements of 38 C.F.R. § 3.317 if there is affirmative evidence that the disability was not incurred during active military service in the Southwest Asia theater of operations; or if there is affirmative evidence that the disability was caused by a supervening condition or event or was due to the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (a)(7)(i)-(iii). The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was aerospace maintenance craftsman. He served in Southwest Asia in support of Operation Desert Shield/Storm. A February 1981 service treatment record (STR) shows that the Veteran sustained trauma to his back after being pinned between a truck door and another vehicle. A May 1989 STR shows a complaint of right foot pain after playing volleyball. On report of medical history completed by the Veteran in October 1993, he denied foot trouble and neuritis. The service retirement examination in October 1993 noted normal neurologic and feet evaluations. The Veteran contends that his current neuropathy is due to duties standing on a tarmac for 20 years in service and/or the February 1981 accident. On a January 2015 VA treatment record, the Veteran reported that he stood on a tarmac for 20 years in service and had had foot pain since that time. A diagnosis of likely diabetic neuropathy of the feet, with no documented neuromuscular disorder, was noted at that time. A September 2015 treatment record noted a diagnosis of diabetic neuropathy, with just occasional tingling. A VA examination was conducted in March 2020. The Veteran reported his neuropathy symptoms started in 1998-99. The examiner diagnosed peripheral neuropathy of the left and right lower extremities. The examiner noted the in-service treatment for back pain in July 1981 and January 1985, but opined that the Veteran's bilateral lower extremity neuropathy is less likely less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran had over 500 pages of records, which he viewed 3 times and did not note any documentation that he was on tarmac and then developed peripheral nerves problems. The examiner observed that such notation was by his primary doctor and not during his service. The Veteran's separation examination report did not note any feet problems because of prolong standing on tarmac either. The examiner noted that the Veteran has diabetes mellitus type 2 which can cause peripheral neuropathy. With respect to the in-service back injury, the examiner observed that this was not followed up with documentation suggesting that it was giving him peripheral nerve problems. Finally, the examiner provided a comprehensive list of the known causes of non-diabetic peripheral neuropathy and he specifically indicated that it does not include prolong standing on tarmac. The examiner noted, Peripheral Neuropathy, often shortened to neuropathy, is a general term describing disease affecting the peripheral nerves, meaning nerves beyond the brain and spinal cord. Damage to peripheral nerves may impair sensation, movement, gland or organ function depending on which nerves are affected; in other words, neuropathy affecting motor, sensory, or autonomic nerves result in different symptoms. More than one type of nerve may be affected simultaneously. Peripheral neuropathy may be acute or chronic, and may be reversible or permanent. Common causes include systemic diseases - such as diabetes or leprosy, hyperglycemia-induced glycation, vitamin deficiency, medication - chemotherapy, or commonly prescribed antibiotics including metronidazole and the fluoroquinolone class of antibiotics - Ciprofloxacin, Levaquin, Avelox etc., traumatic injury, including ischemia, radiation therapy, excessive alcohol consumption, immune system disease, coeliac disease, non-celiac gluten sensitivity, or viral infection. It can also be genetic - present from birth or idiopathic - no known cause). There is no competent evidence that the Veteran's symptoms are a part of an undiagnosed illness. The Veteran's diagnosed peripheral neuropathy precludes service connection of the claimed disorder on the basis of an undiagnosed illness. 38 C.F.R. § 3.317. The Board has also considered whether the Veteran is entitled to service connection for his diagnosed peripheral neuropathy on a direct basis. The Veteran's service treatment records are negative for any symptoms a clinician has found to be indicative of peripheral neuropathy. The first indication in the medical record of neuropathy symptoms is in 2015. The Veteran was afforded a VA examination regarding his peripheral neuropathy in March 2020 at which time he stated that his symptoms began in 1998-99. The examiner noted that the Veteran had diabetes mellitus which can cause peripheral neuropathy. The Veteran is not service-connected for diabetes mellitus. The examiner also did not find evidence that the reported in-service injuries were responsible for the Veteran's peripheral neuropathy. The preponderance of the evidence does not support a finding of continuity of symptoms since service. Therefore, chronic disease presumptions are not applicable. Whether the Veteran's peripheral neuropathy may somehow otherwise be related to his service is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d, 1372, 1377 (Fed. Cir. 2007) The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's disabilities and his service, is the March 2020 VA opinion, which is against the Veteran's claim. The physician provided a clear explanation of rationale for his opinion that the Veteran's peripheral neuropathy is less likely than not related to service. He reviewed the record, identified and addressed the critical evidence, and indicated that there it was less likely than not that the Veteran's peripheral neuropathy was associated with his service. While the Board has no doubt that the Veteran is sincere in his belief that his neuropathy is causally related to his military service, he is a layperson, and therefore not competent to provide a probative opinion in this matter. The etiology of peripheral neuropathy is a medical question beyond the scope of lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no competent evidence of a nexus between his service, to include in Southwest Asia, and his peripheral neuropathy of the bilateral lower extremities. In view of the foregoing, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine consequently does not apply; the appeal of the claim must be denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.