On appeal from the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota
THE ISSUE
1. Entitlement to restoration of a 100 percent rating for
acute myelogenous leukemia.
2. Entitlement to service connection for peripheral
neuropathy as secondary to service-connected acute
myelogenous leukemia.
3. Entitlement to service connection for burns to the right
leg with subsequent below the knee amputation due to
peripheral neuropathy.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
Michael A. Holincheck, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1952 to
November 1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Medical and Regional Office Center
(MROC) in Sioux Falls, South Dakota.
The veteran's case was certified on appeal to the Board in
December 1999. A medical evaluation from C. N. Bash, M. D.
was received at the Board in February 2000. The veteran's
representative submitted an Informal Hearing Presentation in
May 2000 and stated that the veteran waived consideration of
Dr. Bash's report by the agency of original jurisdiction.
Accordingly, the report will be considered by the Board in
its appellate review. 38 C.F.R. § 20.1304(c) (1999).
Finally, the Board contacted the veteran in July 2000
regarding the possible untimeliness of his substantive appeal
of the issues involved in this case. The veteran's
representative submitted argument in July 2000 that the
appellant's appeal was timely in light of VAOPGCPREC 9-97.
Upon review of the evidence of record, the notice provided by
the RO in the supplemental statement of the case issued in
January 2000, and the representative's arguments, the Board
finds the veteran's appeal to be timely and will proceed to
review his claims.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. A reduction of the 100 percent disability rating for
acute myelogenous leukemia was proposed and accomplished by
rating decisions issued in January 1996 and January 1997,
respectively.
3. Evidence of record at the time of the reduction was
negative for active disease. The veteran was not in a
treatment phase.
4. The veteran's acute myelogenous leukemia is manifested by
hemoglobin values above 10-mg/100 ml with no evidence of
weakness, easy fatigability, or headaches attributable to his
leukemia. There is no evidence of medication to control
pernicious anemia nor need for platelet transfusion.
5. The veteran had peripheral neuropathy due to nonservice-
connected diabetes prior to development of leukemia in 1989.
6. The veteran's chemotherapy treatment aggravated his
preexisting peripheral neuropathy.
7. The veteran's peripheral neuropathy resulted in a thermal
insensitvity leading to burns of both feet and eventual
amputation of the right leg below the knee.
CONCLUSION OF LAW
1. The criteria for restoration of a 100 percent disability
rating for acute myelogenous leukemia have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
3.105(e), 3.343, 3.344, 4.1-4.7, 4.117, Diagnostic Codes
7700, 7703, 7716 (1999).
2. The criteria for a compensable disability rating for
acute myelogenous leukemia have not been met. 38 U.S.C.A. §§
1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.117, Diagnostic
Codes 7700, 7703, 7716.
3. Service connection for bilateral peripheral neuropathy of
the lower extremities is in order as it is reasonably
probable that it is proximately due to or the result of a
service-connected disease or disability. 38 U.S.C.A. §§
1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1999); Allen v.
West, 7 Vet. App. 439, 448 (1995).
4. Service connection for burns of the right leg with
subsequent below the knee amputation of the right leg is in
order as it is reasonably probably that it is proximately due
to or the result of a service-connected disease or
disability. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.310(a);
Allen.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONI. Restoration
As a preliminary matter, the Board finds that the veteran's
claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991);
38 C.F.R. § 3.102 (1999). See Murphy v. Derwinski, 1 Vet.
App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990). That is, the Board finds that the veteran has
presented a claim which is not implausible when his
contentions and the evidence of record are viewed in the
light most favorable to the claim. The Board is also
satisfied that all relevant facts have been properly and
sufficiently developed to address the issue at hand.
A. BACKGROUND
The veteran served on active duty from January 1952 to
November 1955. During his period of service, the veteran was
a participant in atmospheric nuclear testing in OPERATION IVY
in 1952. He was diagnosed with acute myelogenous leukemia
(AML) in 1989, and evidence of record reflects that he
underwent chemotherapy for the disease and was found to be in
remission by January 1990. The records do not reflect any
complications from the veteran's leukemia after its remission
in 1990.
During a February 1992 VA examination, the veteran's main
complaint involved a burning and numbness sensation of the
feet and lower legs. Laboratory studies included a complete
blood count (CBC) that was completely normal with a white
blood cell count of 8,300 and normal differential, hemoglobin
of 15.5 and platelet count of 167,000. It was concluded that
the AML was still in remission. The examiner, noting the
veteran's complaints regarding the burning and numbness
sensation of the feet and lower legs, opined that the
etiology was most likely related to the chemotherapeutic
regimen related to the AML.
In May 1992, the RO granted service connection for AML. The
veteran was assigned a 100 percent disability rating. The
rating was made effective as of August 14, 1991, the date of
a change in law that extended the presumptive period for
service connection for leukemia due to exposure to ionizing
radiation.
In association with his service connection claim, the veteran
submitted VA medical records for the period from September
1993 to January 1995. The records reflect treatment provided
to the veteran for several different complaints to include
his diabetes mellitus, peripheral vascular disease (PVD), and
amputation of the right leg below the knee (BKA). The
veteran was also seen for bone marrow studies that confirmed
the continued remission of his AML.
Associated with the claims file are private treatment records
from St. Luke's Medical Center for the period May 1994 to
October 1994. The records reflect treatment provided to the
veteran for burns on both feet. The veteran was noted to
have a history of leukemia with an apparent five-year cure.
The veteran was afforded a VA examination in July 1995 to
evaluate the residuals of his right leg BKA. The veteran's
AML was noted by history only.
The veteran was afforded a VA examination in December 1995.
In pertinent part, the veteran's AML was noted to be in
remission.
The RO issued a rating decision in January 1996 that proposed
to reduce the veteran's AML disability rating to 0 percent as
a result of the December 1995 VA examination report. The
veteran was advised of the proposed reduction and offered the
opportunity to submit evidence against the proposed reduction
to include providing testimony at a hearing.
A February 1996 letter from Max L. Farver, M.D., did not
address any current symptomatology associated with the
veteran's AML. In a July 1996 letter, J. W. Hubner, M. D.,
noted the history of treatment for his AML and burning of his
feet. He said that, even though the veteran's leukemia was
in remission, "he was still partially disabled because of
the complications of leukemia and resultant right below the
knee amputation of his leg." Dr. Hubner did not identify
how the veteran was partially disabled from his leukemia
other than to link the BKA to his AML.
Associated with the claims file are additional treatment
records from the YMC for the period from March 1989 to July
1996. The records also note the veteran's AML as being in
remission. There is no evidence of complaints or treatment
for any residuals such as anemia.
Also associated with the claims file are additional VA
treatment records for the period from June 1992 to August
1996. The records reflect treatment for a number of
unrelated conditions as well as duplicate entries for bone
marrow studies in 1992 and 1993 which documented the
veteran's AML as being in remission. The records do not show
any complaints or treatment for any residuals such as anemia.
An entry dated in August 1996 noted the veteran's AML as
still in remission.
The veteran and his spouse testified at a hearing at the RO
in August 1996. The veteran testified that he felt that his
leukemia was worse and that he suffered from other health
problems related to his leukemia, such as his BKA. The VA
examiner, from December 1995, failed to include in the report
some of the significant symptoms. He took medication for his
diabetes. He thought he had had some red in his urine on one
occasion but did not see a physician about it. He said that
he had checkup visits for his leukemia about every six
months. The veteran's spouse testified as how their lives
had been changed because of the appellant's leukemia and
other health problems.
In October 1996, the Board received a copy of a Social
Security Administration (SSA) Disability Determination and
Transmittal form which noted that the veteran was disabled as
a result of AML as of October 14, 1989. The SSA also
forwarded the medical records relied on for their decision.
These consisted of records from UNMC and the YMC. The
records were essentially duplicative of material already
included in the claims file. There were no records dated
beyond 1990 to show any recurrence of leukemia or identify
any symptomatology associated with residuals from the
leukemia.
The RO determined that the reduction was appropriate and
issued a rating decision to that effect in January 1997. The
veteran's disability rating was reduced to 0 percent, or a
noncompensable rating, effective April 1, 1997. The veteran
was notified of the rating action on January 30, 1997.
A July 1997 letter from Dr. Vaughan related to the issue of
the veteran's peripheral neuropathy and its relationship to
his chemotherapy. Dr. Vaughan did note that the veteran's
AML was in remission as a result of treatments provided at
UNMC.
The veteran was afforded a VA examination in December 1997.
In pertinent part, the examiner stated that the veteran's AML
was in complete clinical remission.
Additional letters from Dr. Vaughan, dated in January 1999
and Dr. Farver dated in February 1999 focused primarily on
the issue of the relationship between the veteran's
chemotherapy and his peripheral neuropathy
A VA medical opinion was obtained via the Under Secretary for
Health, Department of Veterans Affairs, in July 1999. In
pertinent part, the opinion noted that the veteran's AML was
in remission.
A February 2000 medical report from C. N. Bash, M. D.,
provided no comments or evidence to show that the veteran
suffered from any current residual from his AML.
B. ANALYSIS
The continuance of a total disability rating is governed
under regulations found at 38 C.F.R. § 3.343(a) (1999).
Further, a rating which has been in effect for 5 years or
more may not be reduced on the basis of only one examination
in cases where the disability is a result of a disease
subject to temporary or episodic improvement. 38 C.F.R. §
3.344(a), (c) (1999). Additionally, in cases where a rating
has been in effect for more than five years, though material
improvement in the physical or mental condition is clearly
reflected, the rating agency must consider whether the
evidence makes it reasonably certain that the improvement
will be maintained under the conditions of ordinary life. 38
C.F.R. § 3.344(a), (c); see Kitchens v. Brown, 7 Vet. App.
320, 324 (1995).
In this case, the effective date for the grant of the
veteran's 100 percent disability rating was August 14, 1991.
The effective date of his reduction was April 1, 1997. The
veteran's disability rating was clearly in effect for more
than 5 years.
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities. The
schedule is based on the average impairment of earning
capacity. Individual disabilities are assigned separate
diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
Leukemia is evaluated under Diagnostic Code (DC) 7703. DC
7703 provides that leukemia is rated 100 percent with active
disease or during a treatment phase. The disorder is
otherwise rated as anemia (DC 7700) or as aplastic anemia (DC
7713), whichever would result in the greater benefit.
Further a note under DC 7703 provides:
The 100 percent rating shall continue
beyond the cessation of any surgical,
radiation, antineoplastic chemotherapy or
other therapeutic procedures. Six months
after discontinuance of such treatment,
the appropriate disability rating shall
be determined by mandatory VA
examination. Any change in evaluation
based upon that or any subsequent
examination shall be subject to the
provisions of § 3.105(e) of this chapter.
If there has been no recurrence, rate on
residuals. 38 C.F.R. § 4.117 (1999).
Anemia is rated under DC 7700. Under DC 7700 a 10 percent
evaluation is warranted if hemoglobin is 10-gm/100 ml or less
with findings such as weakness, easy fatigability or
headaches. A 30 percent evaluation is warranted if
hemoglobin is 8 gm/100 ml or less, with findings such as
weakness, easy fatigability, headaches, lightheadedness, or
shortness of breath. A 70 percent evaluation is warranted if
hemoglobin is 7-gm/100 ml or less, with findings such as
dyspnea on mild exertion, cardiomegaly, tachycardia or
syncope. 38 C.F.R. § 4.117.
Pernicious anemia is rated under DC 7716. Under DC 7716 a 10
percent rating is for consideration for a condition requiring
continuous medication for control. A 30 percent evaluation
is warranted for aplastic anemia requiring transfusion of
platelets or red cells at least once per year but less than
once every three months, or; infections recurring at least
once per year but less than once every three months. A 60
percent evaluation is warranted for aplastic anemia requiring
transfusion of platelets or red cells at least once every
three months, or; infections recurring at least once every
three months. 38 C.F.R. § 4.117.
In this case, the veteran's AML has been in remission since
1990. He has not been in an active treatment phase since
that time. He has undergone periodic bone marrow testing to
monitor the status of his remission but there has been no
active treatment since 1990. Accordingly, there is no basis
to restore the 100 percent rating under DC 7703.
In regard to anemia, the medical evidence of record does not
support a 10 percent rating under DC 7700. The veteran's
hemoglobin has been measured above the 10g grams (gm)/100
milliliter (ml) necessary for a 10 percent rating under DC
7700. VA treatment records document consistent hemoglobin
values in excess of 10-gm/100 ml dating back to his VA
examination in February 1992 and continuing to the VA
examination of December 1997. Moreover, while the veteran
testified as to having night sweats two to three nights per
week and occasional diarrhea, there is no medical evidence to
identify these subjective complaints as residuals from AML.
Further, the clinical treatment records, both VA and private,
do not record the cardinal complaints of weakness, easy
fatigability or headaches that are also required for the 10
percent rating under DC 7700.
The veteran does not satisfy the rating criteria for a 10
percent rating for his AML under DC 7700. The Board has also
considered the criteria for the higher ratings under DC 7700
but there is no evidence to show the required hemoglobin
values and the concomitant clinical symptoms. Accordingly,
there is no basis to assign a compensable rating under DC
7700.
The Board has also considered the veteran's AML disability
under DC 7716. However, he is not required to take
medication for control of aplastic anemia such as to warrant
the assignment of a 10 percent rating. Further, the veteran
does not, and has not required, transfusion of platelets or
red cells since his AML was noted to be in remission.
Therefore, a compensable rating under DC 7716 is not in
order.
The Board has considered the SSA determination that the
veteran is totally disabled as a result of his AML. However,
the decisions of the SSA are not binding on VA. The criteria
used to evaluate and rate disabilities are different. The
Board is required to apply the VA Schedule for Rating
Disabilities. In that regard, the symptomatology simply does
not satisfy the necessary criteria for a compensable rating.
The Board finds that the reduction of the veteran's 100
percent rating for AML was proper. The necessary procedures
were followed in keeping with 38 C.F.R. § 3.105(e). The
December 1995 VA examination report, which led to the
proposed reduction, documented the veteran's current state of
good health, relative to his AML. Further, the medical
evidence of record at the time of the January 1997 rating
decision, consisting of VA and private treatment records, and
multiple letters from supportive health care providers,
showed the AML in complete remission since 1990. The
evidence showed that the veteran had maintained, and
continued to maintain, his improvement following his initial
diagnosis and treatment in 1989 and 1990. These improvements
have been maintained under the ordinary conditions of life.
38 C.F.R. §§ 3.343(a), 3.344(a), (c).
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits.
Therefore, the Board is unable to identify a reasonable basis
for granting a compensable rating for the veteran's AML.
Gilbert, 1 Vet. App. at 57-58; 38 U.S.C.A. § 5107(b) (West
1991); 38 C.F.R. § 3.102 (1999).
II. Service Connection
The Board also finds that the veteran's claim for service
connection for burns to the right leg with subsequent below
the knee amputation due to peripheral neuropathy and
peripheral neuropathy as secondary to service connected acute
myelogenous leukemia to be well grounded. 38 U.S.C.A. §
5107(a); 38 C.F.R. § 3.102. Murphy; Gilbert. The Board is
also satisfied that all relevant facts have been properly and
sufficiently developed to evaluate the veteran's claim.
A. Background
A disability may be service connected if it is proximately
due to or the result of a service-connected disease or
injury. 38 C.F.R. § 3.310(a) (1999). Moreover, when
aggravation of a nonservice-connected condition is
proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree
of disability over and above the degree of disability
existing prior to the aggravation. Allen v. Brown, 7 Vet.
App. 439, 448 (1995).
In June 1995, the veteran submitted a claim for entitlement
to service connection for peripheral neuropathy as secondary
to service-connected AML. The veteran alleged that he
developed peripheral neuropathy as secondary to his treatment
for his AML. The veteran also alleged that the burning and
numbness of his lower legs was the result of his peripheral
neuropathy and contributed to his having suffered severe
burns to his right leg in April 1994. The burns resulted in
a below the knee amputation of the right leg.
The treatment records from the YMC, reflect that the veteran
complained of numbness in his feet as early as September
1988. A March 1989 entry reflects an assessment of non-
insulin dependent diabetes mellitus (NIDDM) with peripheral
neuropathy.
A November 1989 discharge summary from UNMC, noted the
veteran's intensive treatment for his AML to include
chemotherapy involving Daunorubicin, and Cytarabine. A
January 1990 discharge summary, reported the neurological
examination as remarkable for decreased sensation in the
lower extremities bilaterally. A November 1991 outpatient
treatment entry, provided an assessment of peripheral
neuropathy "most likely related to diabetes mellitus,
stable."
A December 1991 YMC entry noted the veteran to have
significant neuropathy in the lower extremities "from
previous chemotherapy." Additional entries dated in 1992
and 1993 reflected injections of B12 to treat his peripheral
neuropathy. The entries did not ascribe the peripheral
neuropathy to either the veteran's NIDDM or chemotherapy. An
assessment, dated in April 1994 was: rule out peripheral
neuropathy as secondary to NIDDM and chemotherapy treatment.
The veteran suffered burns to both feet in April 1994, while
using a propane torch to burn weeds. He did not realize his
feet were burned at the time and only discovered the fact
later when he removed his shoes. Initial medical examination
showed that all the toes were effected. Several burns were
noted to be particularly deep. Despite extensive medical
intervention, his condition did not improve. A May 1994
discharge summary from Sacred Heart Hospital, noted a history
of neuropathy, "presumably due to his [veteran's] type II
diabetes." Treatment records from St. Luke's reflect that
he was treated from May to June 1994 with skin grafts and,
ultimately, an amputation of his right great toe. The
discharge summary noted a past history of chemotherapy and DM
and noted that peripheral neuropathy could be attributable to
either source.
A lower extremity arterial examination noted probable
peripheral arterial occlusive disease of both lower
extremities in May 1994. The right leg was more severe than
the left. A February 1995 evaluation performed by J. W.
Wiggs, M. D., noted a three-year history of foot pain and
paresthesia. Dr. Wiggs' formulation was that the veteran's
neuropathy was due more to his chemotherapy rather than
diabetes.
The VA records, show that in February 1992, the VA examiner
noted complaints of numbness and burning sensation of the
feet and lower legs to about mid-calf. The examiner also
noted the veteran's history of diabetes mellitus (DM).
Following the examination, the examiner stated that the
diagnosis of peripheral neuropathy was supported by the
absence of DTRs in the ankles. He opined that the etiology
of the peripheral neuropathy was most likely related to the
veteran's chemotherapy.
Outpatient VA treatment records, dated in and June and August
1993, respectively, attributed the veteran's peripheral
neuropathy as secondary to chemotherapy. The August 1993
entry also listed DM as a cause of the neuropathy.
The veteran was admitted to the VA medical (VAMC) in Sioux
Falls, South Dakota, in September 1993 for an aortogram with
run-off. The veteran said that he could not distinguish hot
and cold on his feet, could not feel pain unless it was
extreme, or feel his socks. The veteran said that he began
to experience these symptoms following his treatment for his
AML in 1990. The discharge summary listed a primary
diagnosis of PVD manifested by claudication with occlusion of
the popliteal and superficial femoral artery [sic].
The veteran was readmitted to the Sioux Falls VAMC in October
1994 because the burns on his right foot had not healed
successfully. The records also noted a long history of PVD
with claudication and peripheral neuropathy secondary to DM.
The veteran underwent a right below-the-knee amputation
(BKA). The discharge diagnoses were, inter alia, PVD with
large defect of the medial foot and NIDDM with diabetic
neuropathy.
A VA examination report from July 1995 noted that the veteran
had peripheral neuropathy and that an opinion as to the
etiology of the neuropathy was requested. The examiner's
initial assessment noted that the veteran's neuropathy could
be due to NIDDM or chemotherapy but further information on
the drugs used for chemotherapy was required. In an addendum
opinion, the examiner stated that it was unlikely that drugs
used to treat the veteran's AML caused the peripheral
neuropathy. The examiner stated that Cytarabine had been
known to cause such an effect but it was unlikely and was not
common. The examiner further opined that the peripheral
neuropathy was the result of the veteran's DM, although it
was "conceivably possible that it may have been contributed
to by the Cytarabine although not likely so."
A following a December 1995 VA examination, the examiner did
not express an opinion as to the etiology of the veteran's
peripheral neuropathy.
An April 1996 VA outpatient treatment entry noted that the
veteran had some concerns about neuropathy in his left leg.
The examiner noted that there was a question of etiology - DM
or chemotherapy - for the neuropathy. The examiner stated
that chemotherapy was probably the cause of the neuropathy
due to the quick and aggressive onset of the neuropathy
following chemotherapy. The examiner stated that the
veteran's DM was in fairly good control in the past and that
diabetic neuropathy was usually much more slower in its
onset.
The veteran was afforded a VA examination in December 1997 to
address the issue of etiology of his peripheral neuropathy.
The examiner noted the veteran's history. The veteran
continued to complain of being unable to feel sensation,
including light touch and pain on his left lower extremity
from about the mid-calf level and extending distally to all
surfaces of the left foot. The examiner provided several
assessments. He concluded that the veteran had DM that was
poorly controlled for the past several years, with an onset
as early as 1985. The examiner also noted AML, in remission,
with treatment by chemotherapy, no neurologic complications
from the chemotherapy were identified; and, peripheral
vascular disease, severe, involving the lower extremities
bilaterally. The examiner stated that the veteran suffered
from diabetic neuropathy involving the left foot and ankle
and that the neuropathy was not related, in any way, to the
AML or treatment for AML.
The file contains a number of letters from private physicians
providing statements in support of the veteran's claim.
There is also a medical opinion from the office of the VA
Under Secretary of Health. The letters all support the
veteran's claim.
Max L. Farver, M.D. submitted several letters as well. In
February 1999, he stated that he treated the veteran prior to
his diagnosis of AML in 1989. There was no significant
neuropathy at that time. However, he noted extreme symptoms
immediately after the chemotherapy such that the veteran had
difficulty walking. He stated that the temporal relationship
between the administration of chemotherapy and onset of
severe symptoms spoke strongly of a direct cause and effect.
He made the same assertions in his letter of February 1996.
Dr. Farver conceded, in both letters, that the veteran's
diabetes might have played a role in his being more sensitive
to the chemotherapy. However, the chemotherapy was
responsible for a much more severe deficit.
A July 1996 letter from Jay W. Hubner , M.D. attributed the
veteran's peripheral neuropathy to chemotherapy. Dr. Hubner
stated that the veteran had no sensation in his lower
extremities and that this contributed to the burns he
suffered in 1994.
Associated with the claims file is a letter from Philip J.
Bierman, M.D., from UNMC, and dated in July 1997. Dr.
Bierman stated that, the information available to him, lead
him to believe that the veteran's current problems
[peripheral neuropathy] were largely related to his prior
diagnosis and treatment for AML.
The July 1999 VA medical opinion noted the veteran's history
of DM with a possible diagnosis as early as 1985 and the
diagnosis of PVD as of 1993 as well as the diagnosis and
treatment for AML. The opinion found the March 1989 entry
from the YMC as significant to show development of peripheral
neuropathy prior to chemotherapy and that diabetic peripheral
neuropathy was a progressive disease The burns, that later
resulted in the BKA, were attributable to diabetic
neuropathy. Finally, the opinion noted that it was difficult
to ascertain, through a chart review, whether the neuropathy
was aggravated by chemotherapy.
In February 2000, Craig N. Bash, M.D., submitted his
evaluation along with a Drugdex Drug Evaluation for
Cytarabine. The drug evaluation did reflect that peripheral
neuropathy was a possible side effect from administration of
the drug. Dr. Bash reviewed the medical evidence and
opinions in favor of the veteran's claim. Dr. Bash opined
that it was very likely that the veteran's peripheral
neuropathy was caused by his chemotherapy because the
neuropathy occurred very rapidly after treatment and there
was a normal neurological examination prior to treatment. He
also said that diabetic neuropathy was known to occur very
slowly over a number of years and he was unable to find any
literature to show it occurring at a time course measured in
other than multiyear levels. He noted that the medical
opinions that supported a diagnosis of neuropathy due to DM
did not cite any literature in support of their opinions.
Dr. Bash added that it was also likely that the loss of
sensation (neuropathy) in the veteran's lower extremities
resulted in his eventual right BKA because he could not feel
his feet being burned.
B. Analysis
The medical evidence clearly shows that the veteran
complained of numbness and burning of his feet as early as
September 1988. He was diagnosed with peripheral neuropathy
in March 1989, some six months prior to the onset of
chemotherapy. However, the extent of the neuropathy was not
noted in that entry. The October UNMC discharge summary
reported intact DTRs as part of the neurological examination;
however, the January 1990 summary noted that the neurological
examination was remarkable for decreased sensation in the
veteran's lower extremities bilaterally. The evidence
indicates that peripheral neuropathy existed prior to
chemotherapy treatment. The evidence also indicates that the
veteran's peripheral neuropathy symptomatology underwent a
significant increase immediately following his course of
chemotherapy. Dr. Farver provided further support that the
veteran had no significant neuropathy prior to his
chemotherapy but had difficulty walking almost immediately
after receiving the treatment.
Subsequent private and VA treatment records have alternately
listed the peripheral neuropathy as either related to DM or
chemotherapy, mostly with assessments provided without
explanation or rationale. VA examiners have given
contradictory opinions as to etiology (February 1992, July
1995). However, the April 1996 VA outpatient treatment
record provided a similar analysis to that of Dr. Vaughan by
noting the rapid onset of the severity of symptoms following
chemotherapy and pointing out that diabetic neuropathy
typically had a gradual onset. The entry concluded that
chemotherapy was the most probable cause of neuropathy.
The VA medical opinion from July 1999 and examination report
from December 1997 both opined that the veteran's neuropathy
was due to diabetes. However, neither opinion really
addressed the issue of aggravation of any preexisting
peripheral neuropathy. The July 1999 opinion said that a
conclusion could not be reached based on the record while the
December 1997 examination report did not address it at all.
Both opinions related the veteran's BKA to his peripheral
neuropathy, however, as noted previously, the neuropathy was
due to the appellant's diabetes, not chemotherapy. In
addition, both opinions cited to the presence of PVD as a
contributing factor as well.
Dr. Vaughan and Dr. Bash both expressed opinions that the
veteran's chemotherapy was the underlying causative factor in
the severity of the appellant's peripheral neuropathy. Both
doctors acknowledged the possible contribution of diabetes
and PVD to the overall symptomatology but concluded that the
underlying disease process was directly related to the high
doses of chemotherapy. Dr. Vaughan cited to his vast
experience in treating leukemia in support of his
conclusions. Dr. Bash cited to a drug evaluation report that
also supported the viewpoint that neuropathy can be caused by
doses of Cytarabine.
The Board finds that the veteran did suffer from peripheral
neuropathy from diabetes prior to his receiving chemotherapy
in 1989 and 1990. The Board further finds that, after
resolving all reasonable doubt in favor of the veteran, the
peripheral neuropathy was aggravated as a result of side
effects from the chemotherapy used to treat the appellant's
service-connected AML. Allen.
In regard to the issue of the veteran's BKA, the Board notes
that even the VA medical opinions have determined a causal
relationship between the appellant's neuropathy and the
severity of the burns, they just attributed the neuropathy to
his diabetes. Dr. Vaughan, Dr. Bash, and Dr. Farver have all
opined that the severity of the veteran's peripheral
neuropathy, attributable to his chemotherapy, either caused
or significantly contributed to his inability to sense the
burning of his feet in April 1994. Therefore, the veteran's
ultimate BKA was the result of the appellant's peripheral
neuropathy.
During the veteran's September 1993 VAMC hospitalization, he
said that his feet constantly felt hot, he had difficulty
distinguishing hot from cold, did not feel pain sensation
unless it was extreme and could not feel his socks on his
feet.
The medical evidence of record documents the diagnosis of PVD
with occlusions in both lower extremities. Several opinions
have noted that the PVD may have contributed to the veteran's
inability to sense the burning of his feet. However, there
is no medical evidence of record to show that the veteran's
PVD was the only cause of his inability to sense the burning
of his feet.
After a careful review of all of the evidence of record, the
Board finds that the evidence is in relative equipoise as to
whether or not the additional disability from the veteran's
chemotherapy peripheral neuropathy was a significant factor
in the burning of his feet, ultimately leading to the right
BKA. Therefore, the Board must resolve the issue in favor of
the veteran. In doing so the Board notes that there is no
evidence to contradict this finding once it is decided, as it
has been in this case, that the veteran suffered from severe
peripheral neuropathy from his chemotherapy. Therefore,
entitlement to service connection for burns to the right leg
with subsequent below the knee amputation is established.
ORDER
Entitlement to restoration of a 100 percent disability rating
for acute myelogenous leukemia is denied.
Entitlement to a compensable rating for acute myelogenous
leukemia is denied.
Service connection for peripheral neuropathy, secondary to
service-connected acute myelogenous leukemia is granted,
subject to the regulations governing the criteria for award
of monetary benefits.
Service connection for burns to the right leg, with
subsequent below the knee amputation, secondary to service-
connected peripheral neuropathy is granted, subject to the
regulations governing the criteria for award of monetary
benefits.
