Citation Nr: 21039872 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-24 734 DATE: July 1, 2021 ORDER Entitlement to service connection for a left leg disorder, to include Charcot Marie Tooth disease, and to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran's pre-existing left leg disorder, namely Charcot Marie Tooth disease, is a hereditary and developmental condition that was not subjected to a superimposed disease or injury during service which created an additional disability, clearly and unmistakably pre-existed active service, was clearly and unmistakably not aggravated beyond its natural progression as a result of active service, and was not caused by or permanently worsened by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left leg disorder, to include Charcot Marie Tooth disease, are not met. 38 U.S.C. §§ 1101, 1111, 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to April 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Des Moines, Iowa. Jurisdiction of this appeal is currently with the RO in Lincoln, Nebraska In July 2017, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired judge. In April 2021 correspondence, the Veteran was notified that the Veterans Law Judge who conducted the July 2017 hearing was no longer employed by the Board, she was given the opportunity to request another hearing and she was notified that if she did not provide a response in 30 days, it would be assumed that she did not want another hearing. The Veteran responded to that letter stating she did not request another Board hearing and the Board will therefore proceed with adjudication. This case was most recently before the Board in August 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board remanded the instant matter to obtain updated VA treatment records, allow the Veteran the opportunity to identify any pertinent private treatment records and to obtain an etiology opinion. Updated VA treatment records have been associated with the record and an August 2020 letter requested the Veteran complete an appropriate authorization form to allow VA to obtain records on her behalf. An etiology opinion was obtained in November 2020 and February 2021. The Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. Service Connection Left Leg Disorder The Veteran seeks entitlement to service connection for a left leg disorder, to include Charcot Marie Tooth disease, and to include as secondary to service-connected disabilities. Additionally, the Veteran seems to assert that her left leg disorder was caused by an uneven gait from a right hip replacement due to muscle imbalance and uneven pressure. See VA Form 21-4138 Statement in Support of Claim, May 10, 2005; see also VA Form 21-4138 Statement in Support of Claim, July 22, 2004. 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 may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the claimant has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner, supra; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Alternatively, service connection may also be established by showing that a disease is chronic or that there is a continuity of symptomatology after service. See 38 C.F.R. § 3.309(a); § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331. 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In this regard, the Veteran's left leg disorder and/or Charcot Marie Tooth disease is not considered a chronic disease subject to presumptive service connection and, therefore, such laws and regulations are inapplicable to the instant claim. 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). Initially, the Board notes that service connection is currently in effect for stats postoperative (SP) right total hip replacement, effective May 1, 1993. Additionally, service connection is currently in effect for left hip degenerative arthritis, and left knee strain associated with SP right total hip replacement. Turning to the evidence, the Veteran's service treatment records are essentially unremarkable for complaints of, treatment for, or diagnoses of a left leg disorder, to include Charcot Marie Tooth disease. The Board notes that the Veteran complained of swollen or painful joints at her physical examination upon separation from active service. See Service Treatment Record, January 6, 1993. The Veteran was afforded a VA examination in September 2004. At that time, in pertinent part, the examiner found the Veteran had a normal left leg, and noted left leg pain. As noted above, the Veteran testified before a now retired Veterans Law Judge in July 2017. At that time, the Veteran testified that she experienced a lot of pain during active service but tried to delay treatment and her total hip replacement. She testified that the leg condition is an ongoing condition that she suffered from a regular basis and that her symptoms included worsening of pain throughout the day and pain. She reported she was unsure if her left leg disorder was neurological or musculoskeletal but that she was a candidate for joint replacement surgery. The Veteran and her representative seemed to indicate that she had a circulation disorder and/or a neurological disorder of the left leg that was aggravated by the service-connected right hip replacement. Following the July 2017 Board hearing and an April 2018 Board remand, the Veteran was afforded a VA examination in January 2019. At that time, the examiner diagnosed Charcot Marie Tooth disease neuropathy. The Veteran reported she used the left side more, that she had aches and pains, and was unable to walk very far. She reported her symptoms were intermittent and increased with activity, and had worsened over the years. She reported treatment was provided by VA, and was not evaluated for a nerve condition. The January 2019 VA examiner opined that the Veteran's Charcot Marie Tooth disease was less likely than not etiologically related to her active service. In this regard, the examiner noted her diagnosis of Charcot Marie Tooth disease was a hereditary condition that preexisted active service, that Charcot Marie Tooth disease is a developmental disease, that medical documentation reports a diagnosis of Charcot Marie Tooth disease diagnosed with an electromyography (EMG) study and that Charcot Marie Tooth disease is well established as a genetic condition. Additionally, the January 2019 VA examiner opined that the Charcot Marie Tooth disease, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner found that a baseline level of severity of the Veteran's Charcot Marie Tooth disease based upon medical evidence available could not be determined, but that regardless of an established baseline, it was less likely than not that her Charcot Marie Tooth disease was aggravated beyond its natural progression by her service-connected disabilities. In this regard, the examiner noted that it was less likely that the Veteran's Charcot Marie Tooth disease was aggravated beyond its natural progression during service or as a result of her service-connected disabilities as there is no indication of symptoms of Charcot Marie Tooth disease in her service treatment records and although it was not clear what service-connected conditions the Veteran had, there are no conditions that are known to aggravate Charcot Marie Tooth disease. As noted above, the Veteran's claim was most recently before the Board in August 2020. Specifically, the August 2020 Board remand directed the AOJ to obtain an addendum VA opinion because it found that the January 2019 VA medical opinions were inadequate to decide the claim. In this regard, the August 2020 Board found the January 2019 VA medical opinion was deficient because it lacked a sufficient rationale as it pertains to the particulars of the Veteran's case, the examiner did not know the Veteran's specific service-connected disabilities, the examiner simply concluded that there are no conditions known to aggravate Charcot Marie Tooth disease and the examiner did not explain why any of the Veteran's service-connected disabilities, which include right hip, left knee, and left hip conditions, could not have aggravated her left leg condition. The August 2020 Board noted that the April 2018 Board remand directed that the evidence supporting any conclusion should be identified with specificity. The requested VA examination was afforded in November 2020 and February 2021. The November 2020 VA examination report indicates the Veteran was diagnosed with Charcot Marie Tooth disease in 2004, which is 14 years after her separation from active service, and determined that the Veteran's Charcot Marie Tooth disease, type I, is a congenital condition with an autosomal dominant pattern of inheritance. In this regard, the examiner noted that the condition is characterized by peripheral nerve demyelination of the lower extremities, that the Veteran experienced issues with bilateral hip pain due to her hip dysplasia condition during active service and there was no pathophysiological relationship between the right hip condition with the right hip and Charcot Marie Tooth disease type I. Additionally, the examiner noted there was no objective evidence for any aggravation of the Charcot Marie Tooth beyond its natural progression as the disease had not presented any distal neurological symptoms during active service and the Veteran's Charcot Marie Tooth disease was found to be stable neurologically on multiple VA examinations from 2007 to 2018. Therefore, the examiner opined there was no established medical nexus for any aggravation of the Charcot Marie Tooth disease type I due to service or that Charcot Marie Tooth disease, which clearly and unmistakable existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. The November 2020 examiner also opined that, regardless of an established baseline, the Veteran's Charcot Marie Tooth disease was not at least as likely as not aggravated beyond its natural profession by a service-connected condition. In this regard, the examiner again noted the diagnosis of Charcot Marie Tooth disease was rendered in 2007, 14 years after separation from active service, and provided a nearly identical rationale when opining that there was no established medical nexus for any aggravation of the Charcot Marie Tooth disease type I due to her service-connected status postoperative total right hip replacement. Additional addendum opinions were provided in February 2021. At that time, the examiner opined the Veteran's service-connected status postoperative total left hip replacement did not contribute in any way to aggravate her Charcot Marie Tooth disease. In this regard, the examiner noted that Charcot Marie Tooth disease is neurogenerative in nature, that the Veteran's symptoms include weakness of the foot muscle and that the need for left hip replacement was due to bony degenerative changes rather than neurogenerative changes. The examiner also noted the Veteran's hip replacement had been stable and had not needed any surgical revision and that the Charcot Marie Tooth was present in the feet, which are unrelated to the left hip. Therefore, the examiner opined that it was less likely than not that the claimed Charcot Marie Tooth disease was aggravated due to her service-connected status postoperative total left hip replacement. The February 2021 VA examiner also opined that the Veteran's service-connected left knee strain did not contribute in any way to aggravate her Charcot Marie Tooth disease. In this regard, the examiner noted that Charcot Marie Tooth disease is neurogenerative in nature, that the Veteran's symptoms include weakness of the foot muscle and that the service-connected left knee strain was due to mechanical stress changes rather than neurogenerative changes. The examiner also noted the Veteran's left knee strain has been stable and has not needed any surgical intervention, and the Charcot Marie Tooth was present in the feet, which are unrelated to the left knee. Therefore, the examiner opined that it was less likely than not that the claimed Charcot Marie Tooth disease was aggravated due to her service-connected status left knee strain. The February 2021 VA examiner also opined that the Veteran's Charcot Marie Tooth disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that the Veteran had acetabular dysplasia in the left hip while on active duty, which is a congenital condition. Therefore, it was less likely than not incurred in, caused by, or otherwise related to her service. The February 2021 VA examiner also opined that the Veteran's Charcot Marie Tooth disease, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In this regard, the examiner noted it was less likely than not that the Veteran suffered temporary or intermittent symptoms of her preexisting Charcot Marie Tooth disease during active service as she had no symptoms of her Charcot Marie Tooth disease while on active duty. The examiner noted the Veteran's various musculoskeletal complaints and treatments were due to other conditions, such as her congenital dysplasia. The examiner then provided medical literature citations and a list of medications known to aggravate Charcot Marie Tooth disease. The February 2021 VA examiner also opined that the Veteran's Charcot Marie Tooth disease, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In that regard, the examiner noted that it was less likely than not that the Veteran developed a change in the pathology of the preexisting Charcot Marie Tooth disease during active service because Charcot Marie Tooth disease is neurodegenerative in nature and does not change due to military occupational specialty (MOS) or duties of service, etc. The examiner then provided medical literature citations and a list of medications known to aggravate Charcot Marie Tooth disease. The February 2021 VA examiner also opined that the Veteran's Charcot Marie Tooth disease was less likely than not caused or aggravated by each or the cumulative effect of her service-connected disabilities. In that regard, the examiner noted the additional diagnosis of hip dysplasia is congenital, was not due to the cumulative effect of her service-connected disabilities, that congenital hip dysplasia conditions are well known to contribute to early degenerative changes in life and need for medical intervention, and this is the natural course of the condition. The Board finds that the November 2020 and February 2021 VA opinions have clear conclusions and supporting data, as well as reasoned medical explanations that the Veteran's Charcot Marie Tooth disease is a congenital and/or hereditary disease that clearly and unmistakably preexisted active service, was clearly and unmistakably not aggravated beyond its natural progression by service, and was not secondary to her service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These VA examiners noted the Veteran's service treatment records, the current reported symptoms, the post-service treatment records and the etiology of Charcot Marie Tooth disease in general as well as addressing the Veteran's statements and contentions regarding the onset and continuity of her symptoms, her service-connected disabilities, and the interaction between her service-connected disabilities and her Charcot Marie Tooth disease when rendering their medical opinions. These opinions are therefore afforded great probative weight. There is no contrary opinion of record. Congenital or developmental abnormalities are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. 38 C.F.R. § 3.303(c). VA regulations specifically prohibit service connection for congenital or developmental defects unless such defect was subjected to a superimposed disease or injury during service which created an additional disability. See VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). History, given by the Veteran, states that she experienced pain during active service and had swollen or painful joints at her separation physical. Additionally, as indicated above, the November 2020 and February 2021 VA examiners found the Veteran has a diagnosis of Charcot Marie Tooth disease, which is a well-established hereditary and/or congenital disease. As such, the Board finds that the Veteran's Charcot Marie Tooth disease is a congenital disease. The November 2020 and February 2021 VA examiners' opinions are highly probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, supra. There is no contrary opinion of record suggesting that the Veteran's Charcot Marie Tooth disease is not a congenital disease. Moreover, there is no indication from the evidence, nor does the Veteran or her representative assert, that her Charcot Marie Tooth disease was subjected to a superimposed disease or injury during service which created an additional disability. The Board notes the arguments and statements of the Veteran and her representative that the Charcot Marie Tooth disease was worsened by her service-connected disabilities. Unfortunately, the preponderance of the evidence is against finding that the Veteran's Charcot Marie Tooth disease was caused by or permanently worsened by her service-connected disabilities. Again, as noted above, the November 2020 and February 2021 VA examiners opined that the Veteran's Charcot Marie Tooth disease was less likely than not caused or aggravated by her service-connected disabilities. Specifically, the February 2021 VA examiner found the Veteran's left knee, right hip, and left hip did not contribute in any way to her Charcot Marie Tooth disease and that her Charcot Marie Tooth disease clearly and unmistakably preexisted prior to service and was clearly and unmistakably not aggravated beyond its natural progression by her service. The February 2021 VA examiner also found that the Veteran's Charcot Marie Tooth disease was not caused by the cumulative effective nor by each of her service-connected disabilities and that there is no known condition that is known to aggravate, cause, or worsen Charcot Marie Tooth disease. Additionally, the February 2021 VA examiner opined that the Veteran's Charcot Marie Tooth disease was not changed in pathology in any way by service as Charcot Marie Tooth disease is neurodegenerative in nature and does not change with military occupational specialty, duties of active service, or any known medications. The November 2020 and February 2021 VA examiners' opinions are probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, supra. There is no contrary opinion of record suggesting that the Veteran's Charcot Marie Tooth disease was caused by or aggravated by any service-connected disability or the cumulative effect of her service-connected disabilities. In addition, there is not any evidence or opinion of record suggesting that the Veteran's Charcot Marie Tooth disease, which clearly and unmistakably preexisted service was aggravated beyond its natural progression by her service. This argument is therefore without merit. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's left leg disorder, to include Charcot Marie Tooth disease, and any instance of her service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe her current symptoms, such as pain, the Board accords her statements regarding the etiology of such disorders little probative value as she is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing such as a sleep study. In the instant case, there is no suggestion that the Veteran has had any medical training. Notably, the Veteran and her representative were unsure as to the nature of her disorder, to include her diagnosis, as demonstrated at her July 2017 Board hearing. Therefore, the Board finds that the Veteran and her representative have no demonstrable medical training and or knowledge as to her diagnosis of Charcot Marie Tooth disease. As such, the question of etiology in this case may not be competently addressed by lay evidence and the opinions of the Veteran and her representative are nonprobative evidence. As discussed, to the extent that the Veteran contends that the Charcot Marie Tooth disease and/or left leg disorder are etiologically related to her active service, the Board finds that contemporaneous medical evidence showing no such relationship to be of greater probative value. The Board finds that the only probative medical evidence of record, the findings and opinions of the November 2020 and February 2021 VA examiners, to be of greater probative value than the Veteran's contentions. 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 Veteran's claims for service connection for a left leg disorder, to include Charcot Marie Tooth disease. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, Associate 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.