Citation Nr: 18160699
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 13-17 350
DATE:	December 28, 2018
ORDER
Entitlement to service connection for left lower extremity peripheral neuropathy, to include secondary to residuals of bilateral total knee replacements and herbicide exposure is denied.
Entitlement to service connection for right lower extremity peripheral neuropathy to include secondary to residuals of bilateral total knee replacements and herbicide exposure is denied.
REMANDED
Entitlement to total disability based on individual unemployability due to service-connected disorders is remanded.
FINDING OF FACT
Peripheral neuropathy of the lower extremities was not demonstrated inservice, it was not compensably disabling within a year of separation from active duty, and it is not caused or worsened by residuals of bilateral total knee replacements.
CONCLUSIONS OF LAW
1. Peripheral neuropathy of the left lower extremity was not incurred or aggravated inservice, it may not be presumed to have been so incurred, and it is not caused or aggravated by residuals of bilateral total knee replacements.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
2. Peripheral neuropathy of the right lower extremity was not incurred or aggravated inservice, it may not be presumed to have been so incurred, and it is not caused or aggravated by residuals of bilateral total knee replacements.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1951 to September 1973.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina.
In May 2016 the Board remanded claims of entitlement to service connection for peripheral neuropathy of the lower extremities, and entitlement to a total disability based on individual unemployability due to service-connected disorders for further development.  The appeal is now again before the Board for adjudication.   
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c), 39 U.S.C. § 7107(a)(2).
Service Connection
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; 38 C.F.R. § 3.303(a).  In addition, service connection may 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).  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Secondary service connection may be established for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).
For certain disabilities, such as an organic disease of the nervous system, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the Veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307. 
Veterans who served in the Republic of Vietnam during the Vietnam War are presumed to have been exposed to Agent Orange 38 C.F.R. § 3.307.   Certain disabilities, such as early onset peripheral neuropathy, are presumed to be the result of such exposure, if they become manifest to a degree of 10 percent within a year after the last date on which the veteran was exposed to an herbicide agent during active duty service.  Id.  
Peripheral neuropathy
The Veteran contends that bilateral lower extremity peripheral neuropathy is related to his active military service to include due to herbicide exposure.  Alternatively, he argues that it is aggravated by his service connected knee disabilities.
The Veteran’s service treatment records reflect no complaints, treatment, or diagnosis of peripheral neuropathy while on active duty, to include while serving in the Republic of Vietnam.  At his June 1973 retirement examination the appellant’s neurological system was clinically evaluated as normal.
The record reveals no competent evidence showing that early onset peripheral neuropathy was manifest to a degree of 10 percent within a year after the last date on which the Veteran was exposed to an herbicide agent during active duty service.  There also is no competent evidence that an organic nervous disorder manifested by peripheral neuropathy was compensably disabling within a year of the claimant’s retirement from active duty in September 1973.
A January 1977 VA compensation examination revealed good motor strength, tone and bulk throughout; 2+ deep tendon symmetrical reflexes; and sensation intact to pinprick, temperature, proprioception and vibratory sensation. Peripheral neuropathy was not diagnosed.
Postservice the appellant was granted service connection for postoperative residuals of an internal derangement of each knee.  In an August 1985 rating decision, the right knee disorder was revised to grant service connection for residuals of a total knee replacement.  
From a private electrodiagnostic consultation in January 2008, the Veteran received a diagnosis of acquired sensorimotor polyneuropathy, axonal, based on abnormal electromyographic measurements. 
At a VA neurology consult in May 2011 the Veteran reported a three-year history of neurological problems with his legs including numbness and foot drop, consistent with his January 2008 evaluation.  Following the examination the claimant was diagnosed with longstanding peripheral neuropathy of undetermined cause.  
A November 2012 electromyogram confirmed a diagnosis of sensorimotor polyneuropathy. 
In August 2015 the Veteran was afforded a VA examination to evaluate the etiology and status of his lower extremity nerve condition.  At that time the Veteran reported constant numbness in both legs from his toes to his knees, and bilateral foot drop.  He used braces for support, a wheeled walker for mobility, and hand control modifications to his car due to the loss of sensation in his feet.  He also described exposure to herbicide agents as related to his ground and underwater marine service in Vietnam and the consumption of water from large tanks previously used to store toxic chemicals including Agent Orange.  He indicated that he had to retire from his bus driver employment in 2007 due to the loss of sensation in his legs and feet.  
The examiner reviewed military service treatment records, VA treatment records and civilian medical records in conjunction with the Veteran’s in-person examination.  The examiner opined that the Veteran’s lower extremity neuropathy was less likely than not related to his knee disorders.  The examiner stated that there were no neurological deficits reported following the Veteran’s June 1995 knee replacement.  She also considered and evaluated the private diagnosis in January 2008 of generalized progressive idiopathic sensorimotor polyneuropathy of both lower extremities which was consistently confirmed by follow-on evaluations at a VA Medical Center in May 2011, the Mayo Clinic in March 2012, and the University of South Carolina private opinion from June 2014.  
A literature search was conducted which produced no credible professional medical research results that linked peripheral neuropathy of the lower extremities to knee disorders.  The research indicated that in rare circumstances where knee replacement surgery damaged specific nerves, the effects were immediate after surgery and generally improved over time.  Neither post-operative condition was present in the delayed symptom onset for the Veteran’s progressively worsening neuropathy.  The opinion concluded that the Veteran’s nerve disorder was less likely than not related to his knee disorders.
In support of his appeal, the Veteran provided a May 2016 private medical opinion from a physical medicine specialist indicating that the claimant’s lower extremity peripheral neuropathy was at least as likely as not related to his herbicide exposure.  The physician noted that the diagnosis was idiopathic neuropathy and that herbicide exposure could not be ruled out as the cause of disorder.  No rationale was provided.
In August 2017 the Veteran underwent a total left knee replacement.  The Veteran then underwent another VA neurological examination in June 2018.  The examiner noted that a VA examination in 1977, three years after separation indicated normal neurological findings.  The August 2017 examiner summarized the Veteran’s history to include service in Vietnam, two knee replacement surgeries, electromyogram test results, previous neuropathy diagnoses and civilian employment history including construction safety, hazmat response, and nuclear plant environmental engineer.  
As to direct service connection the examiner could not opine with at least a 50 percent confidence level that the Veteran’s diagnosed idiopathic lower extremity neuropathy was at least a likely as not related to his active military service, based in part on the normal neurological findings in 1977 and the first diagnosis of a nerve condition in 2008.
In considering secondary service connection the examiner again could not opine with 50 percent confidence that the Veteran’s lower extremity peripheral neuropathy was aggravated beyond its natural progression by his service connected knee disorders.  As rationale, she noted that right knee surgery predated the neuropathy diagnosis by more than a decade, and that a connection was not possible without speculation.  For the left knee replacement, she noted no medical evidence of aggravation in the symptoms since August of 2017.
With respect to the final theory of entitlement the examiner noted that the Veteran was presumed to have been exposed to Agent Orange, and that he served on active duty as a Navy diver.  The examiner, however, found the 35-year gap between separation and neuropathy diagnosis was too large of a time interval to render a medical opinion on etiology that might link the nerve condition to presumptive exposure to Agent Orange.  Additionally, the examiner observed that the Veteran’s civilian employment in construction, hazmat response, and nuclear plant environmental engineering each presented hazards for neuropathy to include physical and environmental exposure through 1996.
In June 2018 the Veteran secured a letter from a neurologist associated with the University of South Carolina School of Medicine.  That letter noted that the appellant had been diagnosed with axonal peripheral neuropathy.  The examiner recommended that the claimant be service connected for that.  Significantly, no rationale was provided.  
After consideration of all of the evidence in the record, the Board finds that the preponderance of the most probative evidence is against granting service connection for peripheral neuropathy of the lower extremities.  In this regard, a review of the service treatment records reveals no complaints, findings or diagnosis pertaining to peripheral neuropathy.  Further, early onset peripheral neuropathy may not be presumed to be the result of inservice exposure to herbicides because it was not compensably disabling within a year after the last date on which the Veteran was exposed to an herbicide agent during active duty service.  Additionally, an organic disease of the nervous system manifested by peripheral neuropathy was not compensably disabling within a year of the claimant’s retirement from active duty in September 1973.
The Board further finds that the VA examination reports from August 2015 and June 2018 were based on review of the medical records, a face-to-face examination conducted by competent medical professionals and are entitled to substantial weight.  Both opinions include substantial rationales that support the medical opinions presented.  In contrast, the private opinions provided by the Veteran in May 2016 and June 2018 are conclusory, and they provide no insight on how those professionals arrived at the positions that they are advancing.
There is no competent evidence of record, with supportive rationale, showing any nexus between the Veteran’s current lower extremity neurological deficits and service that might support a claim for direct service connection.  Similarly, the medical evidence of record, to include a literature search, preponderates against finding a link between the Veteran’s bilateral knee disabilities and his peripheral neuropathy in either causation or aggravation.  Again, the cursory private opinions connecting his nerve disorders to herbicide exposure are outweighed by the VA examination supported by substantial medical evidence and a rationale.
Accordingly, the Board finds that the preponderance of the evidence is against the claims.  As such, service connection for peripheral neuropathy of the lower extremities, to include secondary to residuals of bilateral total knee replacements and herbicide exposure, is not warranted.
The claims are denied.
In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
REASONS FOR REMAND
The issue of entitlement to a total disability rating based on individual unemployability due to service connected disorders is remanded to the Agency of Original Jurisdiction
Since the Board’s May 2016 remand, the Veteran has attended several VA examinations, but unfortunately, they do not provide a medical opinion addressing whether the combined impact of the Veteran’s knee disabilities together with all of his other service connected disabilities prevented him from working.  Accordingly, another remand is necessary to complete the outstanding development.
The matter is REMANDED for the following action:
1. Obtain all treatment records from the VA Medical Centers in Augusta, Georgia and Columbia, South Carolina since May 2016, as well as from any other VA facility from which the Veteran has received treatment.  If any such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond.
2. Thereafter, schedule the Veteran for an appropriate VA examination to evaluate the functional impact on the appellant’s ability to work due to his bilateral total knee replacements, facial scars, bilateral hearing loss, and tinnitus since January 2011.  All files in VBMS and Virtual VA must be made available for review and the examiner's report should reflect that such review occurred.  All pertinent symptomatology and findings must be reported in detail.  Following examinations of each service connected disorder the examiner must opine whether it is at least as likely as not that the appellant is unable to work due to his service connected disorders alone.  
A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

 
DEREK R. BROWN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Allen M. Kerpan, Associate Counsel 

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