Citation Nr: 18152440 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-39 891 DATE: November 21, 2018 ORDER Entitlement to service connection for meralgia paresthetica, right lower extremity (also claimed as numbness and tingling) is granted. Entitlement to service connection for meralgia paresthetica, left lower extremity (also claimed as numbness and tingling) is granted. REMANDED Entitlement to service connection for L4-5 herniated disc with L5-S1 spondylolisthesis is remanded. Entitlement to service connection for femoral acetabular impingement is remanded. Entitlement to service connection for a right hip disorder, including osteoarthritis, is remanded. Entitlement to service connection for a left hip disorder, including osteoarthritis, is remanded. FINDING OF FACT The condition of meralgia paresthetica of both lower extremities was present from active duty service, through reserve duty and by competent evidence shown onwards to the present time. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for meralgia paresthetica, right lower extremity have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for entitlement to service connection for meralgia paresthetica, left lower extremity have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Coast Guard from March 2004 to February 2011, and from May 2011 to January 2013. He had subsequent reserve duty until 2016. Service Connection 1. Entitlement to service connection for meralgia paresthetica, right lower extremity (also claimed as numbness and tingling) is granted. 2. Entitlement to service connection for meralgia paresthetica, left lower extremity (also claimed as numbness and tingling) is granted. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). Basic requirements for service connection are: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. For a chronic disease in service, the later symptoms are service-connected unless clearly from another cause. 38 C.F.R. §§ 3.307, 3.309(a). Otherwise, continuity of symptomatology can link a condition back to service. 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limiting use of continuity of symptomatology to diseases listed as “chronic” under 38 C.F.R. § 3.309(a)). Chronic diseases, such as other organic diseases of the nervous system, are presumed service-connected if incurred to a compensable level within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). As a general rule, under VA’s benefit-of-the-doubt doctrine, when after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. The Board’s review of the evidence in this case clearly establishes a sufficient factual basis for granting service connection for meralgia paresthetica of the lower extremities. The condition itself was notated one or more times during the Veteran’s active military service, and if not specifically notated as such, by name as meralgia paresthetica, he nonetheless had substantially similar symptomatology characterized by numbness, paresthesias, tingling, and pain along the outside regions of the thigh and in addition to the general lower extremity condition. Upon the Veteran’s September 2016 Medical Board report, right and left-sided lower extremity neuritis of the common peroneal nerve (incomplete – moderate) was diagnosed. Prior medical notation from the Veteran’s Service Treatment Records (STRs) indicates that around December 2012 the Veteran began to notice numbness in his left thigh. He was seen by a medical provider the following month, no medical treatment initiated at that time since his symptoms were improving, but a contributing factor to the diagnosis was noted as a 30-pound gun belt he wore daily. A September 2014 evaluation by a physician’s assistant with a military clinic diagnosed meralgia paresthetica. By a May 2015 VA examination for the peripheral nerves, the Veteran gave a similar reported medical history regarding the continuation of problems of or similar to meralgia paresthetica. From the above, there is more than sufficient basis to conclude that there were initial symptoms and complete diagnosis of meralgia paresthetica during active service. The Board’s discussion turns to whether the Veteran has the current disability he averred during the appeal period. The presence of a claimed disability is a prerequisite to establish service connection. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the May 2015 VA examiner found “no objective evidence of [meralgia paresthetica] on todays’ exam.” The examiner found that because there was no objective evidence of the condition, that an opinion on its cause, whether meralgia paresthetica was a disorder of service origin, was not warranted. It was observed regarding symptomatology the Veteran did report “numbness” over the entire left anterior thigh, posterior thigh, left buttock and left lower back area, which was way beyond and not in the distribution of the lateral femoral cutaneous sensory nerve at all, the underlying condition unknown. Given that the Veteran clearly had the condition just one year prior to the May 2015 VA examination, indeed notated to have meralgia paresthetica one year later in 2016 (at the time of his Medical Board separation from the military), later recorded in his continued medical “problem list,” there is a recent enough in time finding to support a subsequent award. There is consistent indication that the Veteran had symptoms nearly identical on the 2015 VA examination, even if not the classic presentation of meralgia paresthetica. See McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. On the last element of the claims, the temporal link between service and current symptoms is only a few years, consistent with a continuity of symptomatology from service discharge to the present. See 38 C.F.R. § 3.303(b) (2018). Accordingly, the preponderance of the evidence weighs more favorably than not, and the claims for service connection for meralgia paresthetica of the left and right lower extremities are granted. REASONS FOR REMAND 1. Entitlement to service connection for L4-5 herniated disc with L5-S1 spondylolisthesis is remanded. At his May 2015 VA examination for the thoracolumbar spine, the examiner’s opinion was against the claim finding the Veteran’s pre-existing back condition was not aggravated during service. The initial finding that the Veteran had a back disorder that pre-existed service entrance is clearly shown by his induction examination back in 2002. When a preexisting disorder is noted upon entry into service, service connection is warranted if the preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2018). The threshold question in this case is whether the pre-existing disability increased in severity during service. A supplemental opinion is needed to address whether the Veteran’s pre-existing low back disability increased in severity during service, and if so, whether it was clearly and unmistakably due to the natural progression of the disease. 2. Entitlement to service connection for femoral acetabular impingement is remanded. Additionally, the VA examination already done from May 2015 found that the femoral acetabular impingement was a congenital disorder and primarily for that reason did not become worse during service. It is correct here the Veteran had a pre-existing right hip disorder at service entrance. The July 2002 entrance examination notates a history of right hip fracture, healed with some stated residuals, basically the condition that led to concern for a hip condition in the first place. The issue is therefore aggravation of pre-existing disability. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2018). Regarding developmental conditions, VA makes a distinction between congenital disorders and diseases. A congenital disease is one capable of improvement or deterioration over time. A congenital defect is static in nature. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Under limited circumstances service connection is still permissible for a congenital defect where there has been aggravation of the pre-existing condition by superimposed disease or injury. See VAOPGCPREC 82-90; see also Martin v. Principi, 17 Vet. App. 342, 328-29 (2003). The Veteran should undergo a new examination to first determine whether the femoral acetabular impingement condition, which pre-existed service entrance, is better considered a congenital disorder or disease. Then by way of follow up the examination may clarify the matter of aggravation, particularly if involving a congenital defect whether the condition became worse due to a superimposed disease or injury. 3. Entitlement to service connection for a right hip disorder, including osteoarthritis, is remanded. 4. Entitlement to service connection for a left hip disorder, including osteoarthritis, is remanded. Regarding the claimed conditions involving the bilateral hip region, the May 2015 VA examination was essentially incomplete, having found that the Veteran’s right and left hip conditions were not incurred in service, in part because STRs revealed no indication of the problem. The issue of service connection for femoral acetabular impingement is inextricably intertwined with these claims. Any decision upon a claim for femoral acetabular impingement, a condition involving orthopedic concern for the function of the hip joint, then impacts the bilateral hip arthritis claim clearly because of the similarity of affected joint regions. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Additionally, an opinion should also be requested from the examiner already looking towards the femoral acetabular impingement, to obtain an idea of whether right and/or left hip osteoarthritis developed (1) directly due to service based upon the Veteran’s reported history of symptomatology from stated overuse situations; (2) secondarily as due to a service-connected disability, if and only if the underlying femoral acetabular condition becomes service-connected. The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the Veteran’s claims file. 2. Provide the Veteran’s claims file to a suitable clinician and request a supplemental opinion regarding the Veteran’s back disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is requested to opine whether the Veteran’s pre-existing back disorder increased in severity during one or both time periods of active military service. If the Veteran’s back disorder increased in severity during service, provide an opinion as to whether it was clearly and unmistakably aggravated beyond its natural progression by his periods of service. The clinician must provide a fully reasoned and complete rationale for all opinions offered. If any of the requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of his femoral acetabular impingement and bilateral hip disorders. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is advised that for VA purposes, a defect is defined as a structural or inherent abnormality or condition which is more or less stationary in nature. A disease is a condition that is subject to improvement or deterioration. The examiner must provide opinions as to the following: a. Whether the Veteran’s femoral acetabular impingement is a congenital disorder. If so, the examiner should clarify whether this was a congenital “defect” or “disease.” b. If the Veteran’s femoral acetabular condition (as notated upon service entrance examination) is a defect, determine whether it was subject to a superimposed disease or injury during his period of service. c. If the Veteran’s femoral acetabular condition (as notated on service entrance) instead is either congenital disease or a pre-existing condition, state whether it underwent aggravation during active military service. The examiner should indicate further whether the Veteran currently has any other right or left hip disorder, including osteoarthritis. For each hip condition diagnosed, the clinician must provide opinions as to the following: a. Whether the diagnosed conditions are at least as likely as not (50 percent or greater probability) due to an incident of service, with reported history considered as is service documentation; or b. If and only if the clinician determines that the femoral acetabular impingement was related to service, determine whether it is at least as likely as not that the hip disorders were proximately due to or the result of femoral acetabular impingement. c. If and only if the clinician determines that the femoral acetabular impingement was related to service, determine whether it is at least as likely as not that the hip disorders were aggravated beyond their natural progression by femoral acetabular impingement. The examiner must provide a fully reasoned and complete rationale for all opinions offered. If any of the requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Thereafter, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel