Citation Nr: 22010214 Decision Date: 02/23/22 Archive Date: 02/22/22 DOCKET NO. 16-19 547A DATE: February 23, 2022 ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. FINDING OF FACT The Veteran's bilateral lower extremity peripheral neuropathy did not have its onset during service and is not otherwise related to service, nor is it caused or aggravated by his service-connected right leg varicose veins. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity have 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 CONCLUSIONS The Veteran served on active duty from December 1954 to June 1958. The case is on appeal from a May 2013 rating decision. The claims most recently came before the Board in August 2021, when the matter was remanded for further development. Service Connection 1. Service connection for peripheral neuropathy of the right lower extremity. 2. Service connection for peripheral neuropathy of the left lower extremity. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence 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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Discussion The Veteran contends that his bilateral lower extremity peripheral neuropathy was caused or aggravated by his service-connected right leg varicose veins. Alternatively, he asserts that the lower extremity disorders are directly related to service. In this regard, during the Veteran's December 2015 Decision Review Officer (DRO) hearing, he testified that in 1957, he was hospitalized after he fell about 25 feet from the tail section of a B66 on the vertical stabilizer and injured his back, legs, and foot. There is no dispute that the Veteran has been diagnosed with bilateral lower extremity peripheral neuropathy. This diagnosis has been repeatedly confirmed, most recently by a November 2021 VA examiner. There is some dispute as to whether he suffered an injury during service. The service treatment records (STRs) do not expressly document the claimed injury. The STRs do show treatment in February 1957 for an abrasion of the left lateral thigh. The mechanism of injury is not identified. For purposes of this decision, the Board will assume as true that the injury occurred. Finally, it is not in dispute that he is service-connected for right leg varicose veins. Service connection for this disability has been in effect since August 2014. The Veteran need not have service-connected for, or even diagnosed with, the primary disability, varicose veins, at the time the secondary injury or disease was incurred. Frost v. Shulkin, 29 Vet. App. 131, 138 (2017). Based on these facts, the critical questions in this case are (1) whether the Veteran's peripheral neuropathy is related to the in-service fall, or (2) whether the condition is secondary to the service-connected disability. There are conflicting medical opinions on these questions, but the more persuasive evidence establishes that the Veteran's bilateral lower extremity peripheral neuropathy was not causally related to service and was not caused or aggravated beyond its natural progression by his service-connected right leg varicose veins. Initially, there are several VA medical opinions of limited probative value. The Veteran was afforded a VA examination in January 2020 which he was diagnosed with bilateral lower extremity peripheral neuropathy. The examiner indicated the Veteran's lower extremity peripheral neuropathy was not related to service, as there were no service treatment records (STRs) supporting the diagnosis during service. He also stated the disorders are not associated with the Veteran's right leg varicose veins, as there is no known medical correlation between varicose veins and peripheral neuropathy or radiculopathy. The same examiner submitted a May 2020 addendum opinion which indicated given the fact that there are many other possible etiologies and no evidence of neuropathy during service, the disorders are not directly related to service. He further opined it is common knowledge that there is no medical connection between peripheral neuropathy and varicose veins, and as such, there is no proximal connection or aggravation between the disorders. The claims came before the Board in July 2020 and it found the prior VA examination reports were inadequate. It determined the Veteran's claims should be remanded for further development, including a VA opinion to determine the etiology of the disabilities. In response, the same examiner gave negative opinions in October 2020. The examiner essentially reiterated the prior opinions. The claims were remanded again by the Board in February 2021 for an additional VA opinion as to whether the disorders are directly related to service, or if not, were caused or aggravated by his service-connected varicose veins. Thereafter, an April 2021 VA opinion was provided from a different VA examiner. The examiner indicated that the Veteran's disabilities were not related to service, as his fall in service injured only his back. The examiner stated there is no evidence of chronicity of care and his symptoms are subjective only. Thus, he opined a nexus to service has not been established. With regard to secondary service connection, the examiner gave a negative opinion, explaining that the DDD with neuropathy is a separate entity entirely from the fall with back strain and unrelated to it, and as thorough review of medical literature failed to demonstrate a causal relationship, a nexus has not been established. The examiner stated that an acute strain does not cause DDD with neuropathy. At present, the Board continues to find that these VA examiner opinions are of reduced probative value. This was the reason for the prior Board remands, most recently in August 2021 for another VA opinion. The Board determined the April 2021 VA opinion was inadequate, as the examiner did not provide a thorough rationale with regard to the etiology of the Veteran's bilateral lower extremity peripheral neuropathy. Subsequently, a November 2021 VA examination opinion was obtained from a physician. This VA examiner opined with regard to direct service connection that the condition was less likely than not related to service. The VA examiner reasoned that the Veteran's STRs are silent for complaints, symptoms, treatment or diagnosis of lower extremity peripheral neuropathy, including the May 1958 separation examination. The examiner found that the in-service injury to the Veteran's leg caused no residual injury. Thus, the examiner opined based on a complete review of the record, it is less likely than not that the Veteran's bilateral lower extremity peripheral neuropathy was incurred in or caused by service. The November 2021 VA examiner also opined the Veteran's lower extremity peripheral neuropathy was also not caused by his service-connected right leg varicose veins. The stated there is no evidence that mild varicose veins can cause peripheral neuropathy and upon examination, the Veteran still has mild varicose veins. Thus, the examiner reported the Veteran's peripheral neuropathy in his lower extremities as less likely than not due to or the result of his service-connected varicose veins of the right lower extremity, which is mild in severity. Finally, the November 2021 VA physician indicated the Veteran's lower extremity peripheral neuropathy was not aggravated by his service-connected right leg varicose veins. The examiner stated there is no evidence that varicose veins can cause symptoms similar to neuropathy, unless the condition is severe with swelling and fluid retention in the legs, along with chronic venous insufficiency. In this regard, the examiner noted symptoms of varicose veins can greatly aggravate peripheral neuropathy and symptoms related to peripheral neuropathy can be similar to the swelling associated with varicose veins. However, the Veteran's right lower extremity varicose veins disorder was considered mild and would not aggravate the Veteran's diagnosed lower extremity peripheral neuropathy. Therefore, the examiner found his bilateral lower extremity peripheral neuropathy was not aggravated by his service-connected right leg varicose veins. Tending to conflict with the November 2021 VA examiner's opinion, the Veteran's VA primary care provider in October 2016 wrote that the Veteran "has neuropathy which ensues from ongoing phlebitis that affects blood flow to the nerve endings." The provider observed that research supports that phlebitis, or lack of good blood flow, will cause nerve ending damage. The provider noted that the Veteran brought his STRs for the provider to review. The provider opined that the Veteran had [c]hronic thrombophlebitis with ensuing autonomic neuropathy caused by years of damage due to [s]ervice connected injury more than likely." After reviewing the relative strengths of the conflicting opinions, the Board finds the November 2021 VA opinion to be the more persuasive opinion regarding the etiology of the Veteran's lower extremity peripheral neuropathy. The VA examiner thoroughly reviewed and addressed the record, including the Veteran's STRs, as well as the post-service medical evidence. Based on this review and his examination of the Veteran, the examiner opined the Veteran's disorders are not etiologically related to service, as well as not associated with his right leg varicose veins. The examiner's opinion is based on an accurate medical history and contains well-reasoned explanations in support of his conclusions. With regard to the opinion on direct service connection, the VA examiner relied on an absence of evidence in the STRs. To the extent the VA examiner relied on an absence of any in-service evidence for the condition, the examiner's rationale is understandable from the context: that the injury during the Veteran's service could not have been of sufficient severity to cause the current condition unless there was some apparent residual injury or condition in the treatment records. This rationale, even if not explicitly stated, is understandable. See Monzingo, 26 Vet. App. at 105-06 (a VA examination report "must be read as a whole" to determine the examiner's rationale.). The rationale appears sound especially as it tends to assume as true that the injury did, in fact occur. Finally, it informs the Board of the medical significance of the absent findings during service. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). The Board is also mindful that the VA examiner attempted to cast doubt on the service-connected status of varicose veins, including by citing the lack of evidence of the condition for 50 years after service. However, the VA examiner's ultimate opinion on the secondary question for peripheral neuropathy was to the effect that it is not medically possible for mild varicose veins to cause or aggravate peripheral neuropathy. The duration of varicose veins since service was not cited as a material factor. Thus, the examiner's opinion regarding varicose veins appears ultimately immaterial and nonprejudicial to the opinion regarding peripheral neuropathy. Stated differently, it is clear the examiner would have reached the same opinion even if the examiner had not called into question the evidentiary basis for the grant of service connection for varicose veins. Hence, the VA examiner's opinion remains highly probative notwithstanding the opinion on varicose veins. The VA provider's October 2016 conflicts with the VA examiner's November 2021 opinion. The VA provider's opinion is somewhat probative, but the probative value of that opinion is significantly less comparatively to that of the November 2021 VA examiner. In particularly, both providers indicated that the Veteran's service-connected could potentially cause or aggravate peripheral neuropathy. The November 2021 VA examiner specified that this was only medically supported in cases of severe varicose vein symptomatology, which was absent in this Veteran's case. The October 2016 VA provider did not provide this level of detail. The VA provider only cited generalized and nonspecific information to indicate that there was a potential for a secondary relationship. This calls into question whether the provider was adequately and fully informed of the relevant medical information. Most pointedly, the VA provider did not distinguish between the relevant degrees of severity of phlebitis, whereas the VA examiner explained that only severe symptomatology would cause symptoms similar to neuropathy. The November 2021 VA examiner's opinion has much more probative weight as the VA examiner demonstrated this greater depth of knowledge regarding the medicine in this area. Plus, the VA examiner expertly applied this medical knowledge to the specific history of the instant Veteran's case. Hence, the November 2021 VA examiner's opinion is of greater probative weight and establishes why, as a medical matter, a nexus in this case is unlikely whether on a direct or secondary basis. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's believes his condition is related to the fall in service or is secondary to the service-connected disability. However, these are complex medical matters requiring expert knowledge and consideration of peripheral neuropathy, including risk factors for the disease, varicose veins, and the application of this background medical knowledge to the facts of the instant case. These questions falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the lay evidence of record is afforded less probative weight than the November 2021 VA examiner's opinion. In sum, the Board determines the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral lower extremity peripheral neuropathy is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.