Citation Nr: 21069160 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-19 026A DATE: November 17, 2021 ORDER Entitlement to service connection for bilateral lower extremity (BLE) conditions to include restless leg syndrome, neuropathies, and radiculopathies is denied. Entitlement to service connection for bilateral upper extremity (BUE) conditions, to include neuropathies and radiculopathies is denied. Entitlement to service connection for a bilateral hip disorder, to include stress reaction of the femoral neck is denied. FINDINGS OF FACT 1. There is no evidence that supports a BLE conditions, to include restless leg syndrome, neuropathies, or radiculopathies. 2. There is no evidence that supports a BUE conditions, to include neuropathies and radiculopathies. 3. The Veteran's bilateral stress reaction of the femoral neck in service was a self-limited injury which resolved that is unrelated to the Veteran's current symptoms and diagnoses of trochanteric bursitis and degenerative joint disease of the hip. CONCLUSIONS OF LAW 1. The criteria for service connection for BLE conditions are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. (2020). 2. The criteria for service connection for BUE conditions are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. (2020). 3. The criteria for service connection for bilateral hip condition, to include stress reaction of the femoral neck are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1978 to August 1980 with subsequent service in the Army Reserves. These matters are before the Board of Veterans' Appeals pursuant on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a February 2021 decision, the Board denied the claims included in the rating decision for service connection for frostbite of the feet and lower back disorder. The remaining claims for bilateral lower extremity disorder, bilateral upper extremity disorder and bilateral hip disorder were remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38C.F.R. §3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all 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: (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, 381F.3d 1163, 1167 (Fed. Cir. 2004). Degenerative arthritis is considered a "chronic" disease under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Moreover, where a veteran served 90 days or more of active service, and those certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 5§§3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be also granted only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6. However, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309, as well as the presumptions of soundness and aggravation, are inapplicable to periods of ACDUTRA and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167(2010). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility.VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. Entitlement to service connection for BLE conditions, to include restless leg syndrome, neuropathies, and radiculopathies Entitlement to service connection for BUE conditions, to include neuropathies and radiculopathies The Veteran contends that she has BLE and BUE conditions that had their onset in or were caused by service. Specifically, in her May 2016 VA Form 9, the Veteran stated that, during service, she participated in a war game exercise requiring her to lay down as a member of a blocking force for almost nine hours, after which she had to be taken to the hospital by ambulance as she could not stand up and she was almost frozen. As noted above, the Board remanded these claims in February 2021 for further development including specific attention to entries identified by date and clarification as to whether the Veteran's BLE and BUE symptoms were related to fibromyalgia. The Board is satisfied that the RO substantially complied with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although most of the VA treatment records discussing neuropathy addressed the lower extremities, some of the treatment records referred to peripheral neuropathy symptoms and neuropathy in general, without specifying whether they were of the upper or lower extremities. Evidence The Veteran's Service Treatment Records (STRs) include her July 1980 separation clinical examination with normal findings and the report of Report of Medical History that the Veteran prepared and signed in which she denied all listed disorders. In July 1983, November 1984, and July 1986, the Veteran underwent enlistment examinations for the Army Reserves which included her signed Reports of Medical History in which she denied shoulder, elbow or knee problems, neuritis, lameness, and arthritis. The corresponding clinical examinations revealed normal upper and lower extremities and neurological examinations. Turning to the VA treatment records, in June 2011, the Veteran complained that her leg had been hurting for two weeks. In a June 2012 physical therapy assessment, the Veteran complained of neck pain without associated numbness or weakness and full range of motion of her upper extremities. In a June 2013 clinic visit, the Veteran complained of increasing bilateral leg pain resulting in an assessment by a nurse practitioner of bilateral neuropathies. In February 2014 the Veteran complained of a one-year history of calf and leg pain during the night or while sitting. A July 2014 nerve conduction study of the bilateral upper and lower extremities was performed based upon the Veteran's complaints of throbbing, burning paresthesias in the lower legs and feet that she claimed arose from an instance of frostbite while on active duty. The nerve conduction study was normal and did not reveal evidence of an upper or lower extremity peripheral neuropathy or residuals of frostbite injury. In February and June 2015 VA clinic visits, the Veteran complained of BLE dull, constant pain that had been progressing over the last year. She had full range of motion of her lower extremities. A December 2019 VA disability examination for central nervous system and neurovascular diseases was conducted by a neurologist. The Veteran reported her diagnosis of fibromyalgia in 2016 with intermittent pain in her legs and feet but denied experiencing the strong tingling and crawling sensation that forced her to move her legs which is characteristic of restless legs syndrome. She agreed that she had not been diagnosed with restless leg syndrome. All clinical findings were within normal ranges. The neurologist examiner concluded that the Veteran had no symptoms or evidence of a central nervous system condition including restless leg syndrome. Also, in December 2019, a P M & R physician examiner conducted both peripheral nerve condition and cold injury residual examinations. All clinical findings were normal, and the examiner noted that there was no evidence of a peripheral nerve condition. The examiner considered the electromyography findings with abnormalities in the lumbar and sacral region, which he specifically excluded as diagnostic of a peripheral nerve condition. The examiner further noted the Veteran's reported symptoms of a residual shooting type pain on the lateral aspect of the lower extremities and concluded that these pains were not residuals of a cold injury, or frostbite, and there was no evidence of an upper or lower extremity peripheral neuropathy. In the April 2021 peripheral neuropathy examination, the PM & R physician examiner noted the Veteran's complaint of throbbing pain in her calves was associated with her fibromyalgia that was being treated with medication. She denied tingling, numbness, and paresthesias in her lower extremities. Nerve conduction studies done in July 2014 and electromyography done in March 2015 revealed no evidence of upper or lower extremity peripheral neuropathy. Addressing residuals of a frostbite injury, the examiner noted that the Veteran was vague and did not recall whether she had the recognized symptoms of a frostbite injury which include swelling or discoloration of her ankle, foot or a toe and did not recall what treatment was provided to her for her frostbite. In conclusion, the examiner opined that there was no evidence of a peripheral neuropathy or residuals of a frostbite injury based upon the Veteran's lay statement and all objective testing. In June 2021 the Veteran underwent a second neuromuscular and central nervous system examination with a neurologist examiner in which it was again noted that the Veteran had never been diagnosed with a central nervous system condition. The Veteran denied any lower extremity symptoms until 1995 when she first began experiencing cramping pain in her calves. The Veteran noted that she was diagnosed with fibromyalgia in 2016 and was that the Pregabalin that she was taking for fibromyalgia exacerbated her lower extremity symptoms. The examiner concluded that there was no clinical evidence of sensory, motor, or reflex anomalies in all four extremities and, as such, there was no clinical evidence of neuropathy or radiculopathy. As the onset of the Veteran's fibromyalgia was in 2016, there was no relation to active service; she had no residuals from a frostbite incident according to the evaluation and conclusion of the PM & R specialist, and restless legs syndrome had been ruled out in a prior neurological evaluation. In conclusion, the examiner found that The Veteran did not have a neuropathy or radiculopathy and, that it is less likely than not that her fibromyalgia was related to activities or problems during her active service period. Analysis Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran's service connection claim for bilateral upper and lower extremity conditions. No treatment records with the exception of a nurse practitioner's preliminary assessment diagnosed either condition and all clinical examinations which included objective test results, and medical histories documented normal upper and lower extremities and nervous system. The examiners attributed the Veteran's symptoms to fibromyalgia, a disorder characterized by widespread musculoskeletal pain, which is not neurological in origin and is not confined to the BUEs and BLEs. Further, the examiners noted that there was no evidence of fibromyalgia in service or a year thereafter. Finally, the Veteran has not claimed that her fibromyalgia is related to service. Accordingly, the Board finds that the Veteran does not have a current diagnosis of the claimed BUE or BLE conditions including restless legs syndrome, radiculopathies or neuropathies that would satisfy the first requirement for service connection, a current disability. In the absence of proof of a present disability there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Veteran is competent to report observable symptoms and experiences, however, she is not competent to diagnose her BUE and BLE symptoms, as such a determination requires specialized medical education and training which goes beyond a simple and immediately observable cause-and-effect relationship. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The record does not show, nor does the Veteran contend, that she has specialized education, training, or experience that would qualify her to render a diagnosis or medical opinion on this matter. Under the circumstances of this case, the determination of the nature or etiology of her lower extremity symptoms involves medically complex disease processes because of multiple possible etiologies, which requires specialized testing to diagnose symptomatology that may overlap with other disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board therefore finds that the Veteran's lay statements are not a medically competent opinion. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims for BUE and BLE conditions including restless leg syndrome. 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 claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Service connection for bilateral hip condition to include stress reaction of the femoral neck The Veteran contends that her bilateral hip conditions with intermittent pain had its onset in or was caused by service. In a June 2018 appellate brief, the Veteran's representative reported that she continued to experience hip pain and discomfort since separation from service. Evidence The Veteran's STRs include a 30-day profile in February 1978 from the orthopedic service for a stress reaction of both femoral bone necks in the hips. Upon separation, her July 1980 clinical examination was normal for the lower extremities and spine and other musculoskeletal areas. In the associated Report of Medical History, the Veteran specifically noted "stress fracture of the hips, 30 days profile, Ft. Jackson S.C. Mar 79." As noted above, in July 1983, November 1984, and July 1986, the Veteran underwent enlistment examinations for ACDUTRA assignments with the Army Reserves with normal examination of the upper and lower extremities, spine, and other musculoskeletal areas. She denied neuritis, lameness, and arthritis in her corresponding signed Reports of Medical History. Turning to the VA treatment records, in July 2011 the Veteran was seen in the clinic reporting that she fell on her hip twice in the last three months with one fall severe enough to require bedrest for a week. In February 2014 the Veteran was given intramuscular injection at VA for 8/10 left hip pain after loading boxes 5 days before. The Veteran was afforded a November 2014 VA compensation examination in which the examiner concluded that he was unable to provide an opinion as to whether the Veteran's bilateral hip condition is at least as likely as not related to her pain in service, reasoning that current imaging did not show evidence of stress reaction of the bilateral femoral necks. The Veteran described pain on the side of the right hip when she was in a sitting position or engaging in moderate to prolonged walking. Initial and observed repetitive use testing revealed full range of motion with tenderness to palpation of the right hip joint only. Estimates or repeat use over time and with flare-ups were not provided. In November 2019 and May 2021 hip and thigh conditions VA examinations, the examiners noted that a February 2014 x-ray did not show degenerative changes in either of the hip joints. The examiners endorsed trochanteric pain syndrome including trochanteric bursitis and degenerative joint arthritis of the hip joint based upon the findings of a May 2016 x-ray. The Veteran provided her lay statement that after her in-service incident, the hip pain went away. She began having bilateral hip pain in approximately 2009 and was diagnosed with trochanteric bursitis in 2014. Functionally she had decreased standing and walking tolerance with interference with sitting due to her bilateral hip conditions. During both the 2019 and 2021 examination the Veteran had full range of hip motion bilaterally on initial and repetitive active and passive range of motion testing with pain evident on flexion, abduction and external rotation that caused functional loss. In 2019 and in 2021, the Veteran had full range of motion on initial and observed repetitive use testing of the right and left hips. In 2019, with repetitive use over time and with flare-ups, flexion was decreased to 100 degrees, extension to 20 degrees, abduction to 30 degrees and adduction to 15 degrees. Post-examination adduction was limited such that the Veteran could not cross her legs. In 2021, with repeated use over time the Veteran was estimated to have full flexion, with extension decreased to 15 degrees, abduction and adduction decreased to 25 degrees, external rotation decreased to 35 degrees and internal rotation decreased to 20 degrees. With flare-ups flexion was decreased to 100 degrees, abduction and adduction were further decreased to 20 and 15 degrees respectively and external rotation was further decreased to 30 degrees. There was normal muscle strength and no evidence of muscle atrophy during either examination. The Board remanded this claim in February 2021 for confirmation of all diagnoses involving the bilateral hips, including arthralgias, lumbago, trochanteric pain syndrome and degenerative joint arthritis at [the] hip and sacroiliac joints and, if possible, the onset of each. Observing that lumbago refers exclusively to low back pain, the Board is satisfied that the remand directives were substantially satisfied. Stegall v. West, The 2019 and 2021 VA examiners both concluded that the Veteran's hip conditions are not service related as the onset of the conditions was years after service termination. While the Veteran did have complaints of hip pain in service, the condition was transient and resolved without further evidence of hip pain. The Veteran left service in 1980 with no evidence of hip conditions within a year after service with the Veteran indicating that her hip problem went away, and she began to have hip problems years after service termination. Further, the 2021 VA examiner concluded that the Veteran's degenerative arthritis of the hips diagnosed in 2016 is compatible with nontraumatic degenerative changes due to the normal progress of the aging process. Analysis Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran's service connection claim for a bilateral hip condition. The evidence reflects the first requirement for service connection of a current disability, specifically trochanteric pain syndrome including trochanteric bursitis and degenerative joint arthritis of the hip joint. There is also evidence of an inservice incurrence, the second requirement for service connection, with the 1978 diagnosis of stress reaction of the femoral necks. The question that remains is whether there is a nexus between the Veteran's current bilateral hip conditions and her in-service incident. Although the Veteran's representative stated that she has experienced hip pain since service, according to the Veteran's lay statement, the earliest symptoms of a hip condition after service occurred in approximately 2009. In addition, the Veteran reported a severe injury to the hip in February 2011 in a clinic visit, followed by trochanteric bursitis diagnosed in 2014, and then degenerative arthritis of the hip joints diagnosed in 2016. Looking backwards from the Veteran's lay statement, which is the earliest evidence of bilateral hip conditions, there is 31 years between the inservice incident in 1978 and her hip pain that began in 2009. In addition, the severe hip injury in 2011 raises the question of an intercurrent hip injury. Notwithstanding that hip injury, the extended lapse of time between service and the onset of hip pain mitigates against a relationship between the service incident and her current hip conditions. Maxson v. Gober, 230 F.3d 1330 (2000) (Consideration of the veteran's entire medical history, including the lengthy period of absence of complaint about the claimed condition is permitted.) In addition, the presumption of service connection for a chronic condition, degenerative arthritis, is inapplicable in this instance as here is no evidence that the Veteran experienced signs of symptoms of degenerative arthritis of the hip within one year of separation from service, nor is there evidence of continuity of symptomatology according to the Veteran's lay statement. See 38 C.F.R. §§ 3.307, 3.309. The Board observes that the opinions of the December 2019 and May 2021 VA examiners are medically competent and credible and are entitled to a high degree of probative value in that the opinions were based upon an in-person examination, consideration of the Veteran's lay statements and a thorough review of her documented medical history. As stated above, although the Veteran is competent to report observable symptoms and experiences, she is not competent to provide an opinion as to etiology of her bilateral hip conditions, as such determinations require specialized medical education and training and goes beyond a simple and immediately observable cause-and-effect relationship. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The record does not show, nor does the Veteran contend, that she has specialized education, training, or experience that would qualify her to render a medical opinion on this matter. Under the circumstances of this case, the determination of the nature or etiology of her bilateral hip disorders involves medically complex disease processes because of multiple possible etiologies, which requires specialized testing to diagnose symptomatology that may overlap with other disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board therefore finds that the Veteran's lay statements as to the etiology of her hip condition are not medically competent opinions. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for bilateral hip disorders. 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. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.