Citation Nr: 21031455 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 12-31 475A DATE: May 21, 2021 ORDER Entitlement to service connection for a bilateral lower extremity disability, to include lower extremity neuropathy, peripheral vascular disease and polyneuropathy, is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's a bilateral lower extremity disability, to include lower extremity neuropathy, peripheral vascular disease and polyneuropathy, had its onset in service; manifested to a compensable degree within one year of discharge, and; the bilateral lower extremity disability, initially diagnosed decades after service, is not shown to be causally or etiologically related to any disease, injury, or incident in service, including as due to radiation. CONCLUSION OF LAW The criteria for service connection for a bilateral lower extremity disability, to include lower extremity neuropathy, peripheral vascular disease and polyneuropathy, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1963 to August 1965. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2016. A transcript has been associated with the file. The appeal was remanded in January 2018 and October 2020, for additional development, which has been completed. Entitlement to service connection for a bilateral lower extremity disability 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including organic disease of the nervous system, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he developed a bilateral lower extremity disability, to include lower extremity neuropathy, peripheral vascular disease and polyneuropathy, due to exposure to x-ray radiation while he worked as a medic in service. In his August 2016 hearing, the Veteran stated he was exposed to radiation as a medic while in service. He stated he would stand in the x-ray room with patients who could not be on their own for various reasons, which he did every day for about a year. In support of his claim, the Veteran submitted various witness statements from family and acquaintances. In a November 2012 statement from his daughter, S.S.H., who stated that she remembered when she was growing up that the Veteran would rest his feet and would often help her father treat his feet. As the Veteran got older, S.S.H. reported that he complained of cold feet, lack of circulation, and chronic pain. It is important for the Veteran to understand that such a statement does not directly support the key contention in this case. In January 2016, J.L., a fellow servicemember submitted a statement saying that he knew that the Veteran's duties included going into the x-ray room on numerous occasions and that the Veteran would be required to be in the room while the images were taken. Also, in January 2016, the Veteran's spouse, L.S., submitted a statement. She said the Veteran had trouble doing physical activities after his time in service. This included trouble with "cold feet" and that he suffered from this condition since returning from Korea and that the condition became more severe over time. Lastly, in January 2016, another servicemember, D.T., submitted a statement indicating that he knew the Veteran had to transport patients for x-rays and would have to accompany them directly into the x-ray room. Before delving into the factual background and analysis, the Board will first address whether the provisions of 38 C.F.R. §§ 3.309 (d) and 3.311 regarding service connection based on radiation exposure are applicable in this case. The Board finds that the provisions of 38 C.F.R. §§ 3.309 (d) and 3.311 are not applicable to the Veteran's case and that therefore neither regulation has a bearing on the ultimate disposition of the issue. To begin, the evidence does not show, that he qualifies as a "radiation-exposed veteran" for the purposes of applying 38 C.F.R. § 3.309 (d). He did not, for example, witness an atomic bomb dentation. Moreover, at the August 2016 hearing the Veteran clarified that he was not saying he was exposed to ionizing radiation, but rather x-ray radiation. Additionally, in July 2020, the Army Dosimetry Center submitted a statement saying there was no record of the Veteran being exposed to ionizing radiation. Furthermore, the Veteran is not claiming entitlement to service connection for any of the disease that may be presumptively service-connected pursuant to 38 C.F.R. § 3.309 (d)(2). Finally, the Veteran cannot benefit from the special development procedures provided in 38 C.F.R. § 3.311 as he does not experience any of the radiogenic diseases listed under the regulation. Accordingly, neither 38 C.F.R. §§ 3.309 (d) nor 3.311 applies to the Veteran's case and they need not be considered further. Having stated thus, however, the Board does acknowledge that the Veteran may still show that his claimed disability is related to service, including exposure to radiation from x-rays as a medic. The medical evidence shows that the Veteran has been diagnosed with neuropathy and peripheral vascular disease of the right and left lower extremities. The Veteran's military personnel record indicates he worked as a medic while he was in service. His service treatment records do not show any complaint or treatment for a lower extremity disability consistent with peripheral nerve/vascular problems. On separation from service in June 1965, while endorsing several unrelated medical conditions, the Veteran denied a history of foot trouble and his lower extremities were clinically evaluated as normal. After service, private treatment notes since 2005 recorded the Veteran's complaints of pain, numbness and tingling in all of his toes. In 2006, a diagnosis of diabetes was recorded. In March 2006 the Veteran complained of pain in his feet on the volar surface and loss of sensation in both feet. Arterial Doppler flow studies showed mild distal small vessel disease without significant abnormality. An October 2006 report recorded an assessment of bilateral foot neuropathy. A March 2007 electrodiagnostic study was consistent with mild sensory motor polyneuropathy. A June 2007 report noted diabetic peripheral neuropathy. An ultrasound in October 2007 showed peripheral vascular disease in both legs. The record is clear that the Veteran's neuropathy of the lower extremities was initially identified many years after active duty service. As there is no showing of organic disease of the nervous system in service or to a compensable degree in the year after service, presumptive service connection for bilateral lower extremity neuropathy as a chronic disease is not warranted. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Here, there is no evidence of bilateral leg disabilities, including neuropathy and peripheral vascular disease, in service or for many years after discharge therefrom. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records. Simply stated, both the service and, more importantly, post-service treatment records indicate a problem that began many years after the Veteran's service more than 50 years ago. Thus, the Veteran has not adequately shown that his claimed neuropathy and peripheral vascular disease of the right and left lower extremities had onset in service and continued since service. Even assuming, without conceding, for discussion purposes that the credibility of the Veteran's account of in-service injury and symptoms, the record is insufficient to link his current neuropathy and peripheral vascular disease of the right and left lower extremities to any aspect of his service. Simply stated, the fact that he may have been exposed to radiation from x-rays during service, does not necessarily lead to the conclusion that his current problems decades later are related to that claimed exposure. Accordingly, competent evidence linking the current disability to service is needed to substantiate the claim. On VA examination in November 2009, the examiner noted the Veteran's work as a medic while in service. The Veteran related a diagnosis of diabetes approximately four years earlier, when he was diagnosed with diabetes mellitus, maturity-onset. The Veteran reported being diagnosed with peripheral polyneuropathy secondary to the diabetes involving both hands and feet. The examiner noted diagnosed foot pain and polyneuropathy secondary to diabetes, as well as peripheral vascular disease. The Veteran underwent a VA examination in December 2019. The examiner noted the Veteran's diagnosis of diabetic peripheral neuropathy. The Veteran reported onset of symptoms, including cold feet, shortly after service. He believed his condition was attributable to his exposure to x-ray radiation while in service. Reportedly, he was exposed to x-rays repeatedly, about 100 times. The examiner noted that the Veteran was diagnosed with diabetes in 2006, after which he developed foot neuropathy. The Veteran continued to experience cold feet in addition to neuropathy, as well as redness in the legs, pain in the toes and swelling. He was treated for diabetic neuropathy. In November 2008, the Veteran was diagnosed with bilateral peripheral vascular disease, manifested by pain and numbness in both feet. The examiner opined the Veteran's peripheral neuropathy of the lower extremities was less likely than not incurred in and due to his time in service, including as due to x-ray radiation exposure, and instead attributed the condition to the Veteran's longstanding diabetes. The examiner explained that there was no evidence that x-ray exposure lead to peripheral neuropathy. The examiner noted that while the Veteran stated that he read an article saying that radiation treatment for cancer could cause peripheral neuropathy, the Veteran had not received radiation treatment for cancer and that his numbness and pain began after his diagnosis of diabetes. Therefore, the examiner concluded that the Veteran's history and physical examination were consistent with diabetic peripheral neuropathy. On VA examination in January 2021, the Veteran reported that he had exposure to x-ray radiation while working as a medic in Korea and that's what started his leg and feet issues. The examiner noted that the Veteran developed bilateral peripheral vascular disease over the years which had caused him to have cold feet and numbness and tingling sensation in the lower legs and feet. The examiner noted a history of diabetes since 2006 with bilateral lower extremity peripheral neuropathy that worsened over the years. The VA examiner opined, following a review of the medical and scientific literature, including medical articles provided by the Veteran, there was insufficient evidence to establish causal relationship of peripheral neuropathy and radiation exposure. The examiner, however, noted that considering the medical literature and the Veteran's symptoms of lower extremity neuropathy, the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion the examiner relied on the Veteran's report that when he was exposed to radiation from x-rays in service, he wore led gear protecting the hands and upper torso, but not the feet and lower legs. Thus, the VA examiner provided an opinion linking peripheral neuropathy of the lower extremities due to exposure to x-ray radiation, he also reported that there was insufficient evidence in the medical and scientific literature to establish causal relationship of peripheral neuropathy and radiation exposure. Therefore, the examiner provided conflicting opinions and rationale and the AOJ sought further clarification from the examiner. In an addendum opinion report in March 2021, following a review of medical and scientific literature, including articles provided by Veteran, the VA examiner reiterated that there was insufficient evidence to establish causal relationship of peripheral neuropathy and radiation exposure. Therefore, the Veteran's lower extremity neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that while it was impossible to differentiate symptoms caused by radiation exposure or diabetes, based on pathophysiology of diabetes and Veteran's age, diabetes was likely causing his peripheral neuropathy. Concerning the Veteran's peripheral artery disease, the examiner noted that there was no scientific literature supporting a causal relationship between chronic x-ray radiation and peripheral vascular disease. In fact, a recently published study in 2018 "Association Between Prevalence of Peripheral Artery Disease and Radiation Exposure in the Atomic Bomb Survivors" found no clear association of radiation dose with peripheral artery disease. Therefore, peripheral vascular disease of the lower extremities was less likely than not incurred in or caused by Veteran's service, to include exposure to x-ray radiation. The Board finds the VA examiner's March 2021 opinions to be highly probative. The opinions were based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinions are consistent with other evidence of record, including the December 2019 VA examination findings. Moreover, the examiner cited to the medical literature, addressed the Veteran's contentions, his medical history and medical articles provided by the Veteran, and provided adequate rationale for the opinions. Accordingly, the March 2021 VA examiner's opinions are entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Concerning the medical articles submitted by the Veteran, the Court has held that "generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish "a plausible causality based on objective facts." Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). The medical articles are of little probative value in the present case because the medical professionals who authored the articles did not establish a nexus in this particular Veteran. To the extent the Veteran, his family members and acquaintances believe that his claimed bilateral lower extremity disability, initially shown more than 40 years after discharge from service, are related to service, to include exposure to radiation from x-rays, as lay persons, the Veteran and his family members and acquaintances have not been shown to possess the specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnosis and/or etiology of neuropathy and peripheral vascular disease, require medical testing and expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current neuropathy and peripheral vascular disease of the right and left lower extremities, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the assertions of the Veteran regarding the etiology of neuropathy and peripheral vascular disease of the right and left lower extremities, diagnosed many years after service, and service, are of little probative value. In summary, there is no competent evidence of a vascular or neurological disorder of the lower extremities contemporaneous with service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b). Moreover, the most probative and persuasive evidence is against a finding that a bilateral lower extremity disability, to include lower extremity neuropathy, peripheral vascular disease and polyneuropathy, is related to service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.