Citation Nr: 21011474 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 12-17 791 DATE: March 2, 2021 ORDER Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for right patellofemoral syndrome is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim of entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a current left leg disability that began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran has a current right knee disability that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right patellofemoral syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1966 to April 1970. The Veteran testified before the undersigned at a November 2015 Board Hearing held via videoconference. The claims file contains a transcript of the hearing. In a September 2020 Board Decision and Remand, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board’s remand instructions with respect to the left leg and right knee claims, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). As discussed below, the VA examiner’s opinion with respect to tinnitus is not adequate, so the Board must again remand the matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the headaches claim is intertwined with the tinnitus claim, that will be remanded as well. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a left leg disability The Veteran contends that he developed meralgia paresthetica of the left thigh during his active service and also developed a left knee disability that is related to his active service. See October 2013 DRO Hearing Tr. at 19-20 (alleging his left leg and/or knee problems are related to walking in swampy terrain while guarding “planes and nuclear weapons” and jumping in and out of trucks) and at 21 (“But I kind of also believe the equipment that I was carrying always rubbing up against this leg . . . I believe that had something to do with it also ‘cause I got a real numb spot and that’s always numb like that.”); - The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of left knee strain and meralgia paresthetica of the left thigh, the preponderance of the evidence is against finding that either of those diagnosed conditions began during active service, or are otherwise related to an in-service injury, event, or disease. The Veteran has not identified any documented in-service injury or disease to which his current left leg and/or knee disabilities might be related. As noted above, he mentioned general duties like walking in the swamp and jumping off trucks, but no incidents involving injury to the legs are documented in the service records, nor did he allege he ever sought treatment for the leg during service. With respect to the megalgia paresthetica, the Veteran expressly testified that the symptoms of numbness first occurred after his active service. See October 2013 DRO Hearing Tr. at 21 (“Q. When did you first notice that it was numb? Veteran: Actually, when I got out of service.”; but alleging knee pain during service: “I just felt that the knees every now and then . . . ‘cause I still played a little sports every now and then.”); November 2015 Board Hearing Tr. 14 (“I told him my legs had started hurting but they really started hurting when I was in Charleston Air Force Base a couple of years earlier than that . . . This is 1970.”). Notably, the Veterans service treatment records do not indicate any complaints, symptoms, or treatment related to any left leg or knee issue during the Veteran’s active service. His November 1969 Report of Medical Examination on discharge indicated that his feet and lower extremities were normal. The examiner noted a history of mumps, measles, chickenpox, a hernia, boils, and sea sickness with no complications and no sequelae and further indicated that the Veteran “denies all other significant medical or surgical history.” Similarly, the November 1969 Report of Medical History indicates that the Veteran had not ever had and did not then have arthritis or rheumatism, any bone, joint, or other extremity issue, lameness, “trick” or locked knee, foot trouble, neuritis, or paralysis. The only mention in the service treatment records that could possibly involve his left leg was a December 1966 treatment note indicating a fever with sore joints and nausea with a diagnosis of viral syndrome. An April 2018 VA examination diagnosed bilateral knee strain. At the examination, the Veteran reported bilateral knee pain began during active service. The Veteran also reported that he had previously been diagnosed with patellofemoral syndrome, but the examiner noted there were no records to confirm the diagnosis. In addition, the examiner did not diagnose patellofemoral syndrome of either knee at the examination and did not indicate when the Veteran was allegedly diagnosed with patellofemoral syndrome. In an April 2018 VA examiner’s opinion, the examiner opined that the Veteran’s left leg disability (diagnosed as left knee strain) was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s separation examination indicated normal lower extremities, that the STRs were silent for any left knee condition, and there were no records indicating the Veteran sought care for a left knee condition since leaving service. The Board has previously determined that this opinion is inadequate as there are records from at least 2007 that document complaints of bilateral knee pain. See September 2020 Board Decision and Remand. Therefore, the Board will not assign this opinion any probative value with respect to etiology. Notably, the examination is entitled to probative value regarding the correct diagnosis of the Veteran’s current left lower extremity disability, as the deficiency with respect to the medical history has no obvious impact on the physical examination and diagnosis of the condition. Accord Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). VA obtained a September 2020 VA Addendum Opinion opining that the Veteran’s diagnosed bilateral knee strain was not incurred in and was not otherwise related to his active service. The examiner explained that, although there were several entries in the medical records of complaints of knee pain, the entries usually refer to “occasional” or otherwise temporary knee pain such that they did not support finding a chronicity of symptomatology. Moreover, the examiner stated that the symptoms can be acute, recurrent or chronic with no clear established onset, but “very unlikely in active service, where there is not evidence of problems with either knee, separation exam is silent for any knee condition, there is not continuity/chronicity, and first complaint is documented more than 2 decades after separation.” The opinion is entitled to probative weight against the claim as it is based on an accurate history and contains reasoning that links the facts and medical principles to the conclusion stated by the examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A September 2019 VA examiner’s opinion addresses the prior diagnoses of left thigh meralgia paresthetica and states that the condition was less likely than not related to the Veteran’s active service. See also September 2019 VA Examination (diagnosing left thigh meralgia paresthetica). The examiner explained that the condition was not diagnosed until many years after service, the Veteran’s service treatment records are silent for the condition or symptoms of the condition, the separation examination indicated the lower extremities were normal, and explained there are other causes of the condition including weight gain and diabetes. In the context of the entire record, including documentation that the Veteran gained significant weight since discharge and developed diabetes after discharge, the Board interprets this opinion as indicating it is more likely that these post-service developments caused the meralgia paresthetica than any in-service injury or disease. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Buczynski v. Shinseki, 24 Vet. App. 221, 226 (2011) (noting duty of rating specialist to interpret examination reports). The opinion is entitled to probative weight against finding the meralgia paresthetica of the left thigh was incurred in or otherwise related to the Veteran’s active service. Nieves-Rodriguez, 22 Vet. App. at 304. Private practitioner J.D. opined that the Veteran developed meralgia paresthetica of the left thigh during his active service in 1969. See September 2011 Private Opinion Letter. The rationale was that the Veteran asserts that he began having left thigh pain in 1969, which the private physician credited, and the Veteran does not have a history of wearing a heavy tool belt or any other activity which would precipitate the condition. The physician therefore stated that he thinks the condition is connected to the Veteran’s military service. This opinion is, however, less probative than the VA examiner’s opinion. The physician reviewed the service records and found no complaints or other indications that the Veteran had any left leg symptoms or complaints during service. The opinion relied entirely on the Veteran’s report of onset of symptoms. As discussed above, the record does not support finding that the in-service element was met, therefore this opinion based solely on the Veteran’s post-service reports of an in-service onset is not entitled to any probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). It is for these same reasons, as well, that the statement by Dr. Tuttle in March 2011 that the Veteran has a “history of left meralgia paresthetica since being in the Air Force in 1969” is not persuasive evidence. That statement is located in the medical history section of the report, so it is clearly the doctor recounting the history provided to him by the Veteran, and noting “he” as in the Veteran “feels it is service connected.” This was not an actual opinion by Dr. Tuttle as to the etiology of the condition, but merely transcribing the Veteran’s opinion. Notably, both these 2011 documents were prepared contemporaneous with the Veteran’s compensation claim with VA, and none of the medical evidence prior to that showed such a diagnosis or history of symptoms since service from the Veteran. There are VA medical records in the file beginning in the 1980s and it is reasonable to assume that if the Veteran were having some type of numbness for decades, he would have reported such long before 2011, as he was seeking medical care for numerous other issues. The Board also acknowledges the December 2015 submission of an internet article regarding the causes of meralgia paresthetica. Information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, although it is possible that a treatise might “discuss generic relationships with a degree of certainty” that would allow a finding of “plausible causality based upon objective facts.” See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). In the circumstances of this case, the article has no probative value as there is no indication in the record that any of the identified causes occurred during the Veteran’s service and, moreover, there is no competent testimony or evidence linking the medical principles in this article to the conclusion that the Veteran’s left leg disability is related to any in-service event, injury, or disease. Finally, while the Veteran is competent to report that he had episodes of left leg and/or knee pain during service and after service, his reports are largely not credible, to the extent they indicate any acute in-service injury or chronic condition in service or continuing after service due to the fact that he did not report any such injury during service despite documented treatment for other relatively more minor conditions during service, his explicit denial of current or past left leg symptoms on the Report of Medical History at separation, and the lack of complaints of any left leg issues for many years after service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, he lacks any medical training or experience that would equip him to opine on the etiology of his currently diagnosed conditions (such as whether the alleged in-service subjective symptoms are related to the current conditions). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2019 and September 2020 VA examiner’s opinions. To be clear, the greater weight of the evidence is against finding that the in-service element of the Veteran’s claim was met. In addition, even assuming the Veteran’s subjective complaints of left leg and/or knee pain should be credited and would constitute an in-service injury or event, the greater weight of the evidence is against finding that the Veteran’s current left leg (to include knee) disability is related to any in-service events. The greater weight of the evidence is against finding that the Veteran has a current left leg disability that began during active service, or is otherwise related to an in-service injury or disease. Entitlement to service connection for a left leg disability (to include, but not limited to, meralgia paresthetica and a knee strain) is denied. 2. Entitlement to service connection for right patellofemoral syndrome The Veteran that he has a current right knee disability that is related to knee pain he experienced during his active service. The Board concludes that, while the Veteran has a diagnosis of right knee strain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran has not identified any documented in-service injury or disease to which his current right knee disability might be related. As noted above, he mentioned general duties like walking in the swamp and jumping off trucks, but no incidents involving injury to the legs is documented. See November 2015 Board Hearing Tr. 14 (“I told him my legs had started hurting but they really started hurting when I was in Charleston Air Force Base a couple of years earlier than that... This is 1970.”) and 53 (testifying that he told someone in service about his knee pain). Notably, the Veterans service treatment records do not indicate any complaints, symptoms, or treatment related to any right knee issue during the Veteran’s active service. His November 1969 Report of Medical Examination on discharge indicated that his feet and lower extremities were normal. The examiner noted a history of mumps, measles, chickenpox, a hernia, boils, and sea sickness with no complications and no sequelae and further indicates that the Veteran “denies all other significant medical or surgical history.” Similarly, the November 1969 Report of Medical History indicates that the Veteran had not ever had and did not then have arthritis or rheumatism, any bone, joint, or other extremity issue, lameness, “trick” or locked knee, foot trouble, neuritis, or paralysis. The only mention in the service treatment records that could potentially involve his right knee was a December 1966 treatment note indicating a fever with sore joints and nausea with a diagnosis of viral syndrome. An April 2018 VA examination diagnosed bilateral knee strain. At the examination, the Veteran reported bilateral knee pain began during active service. The Veteran also reported that he had previously been diagnosed with patellofemoral syndrome, but the examiner noted there were no records to confirm the diagnosis. In addition, the examiner did not diagnose patellofemoral syndrome of either knee at the examination and did not indicate when the Veteran was allegedly previously diagnosed with patellofemoral syndrome. The examiner opined that the Veteran’s right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As noted above, the Board has previously determined that this opinion is inadequate as there are records from at least 2007 that document complaints of bilateral knee pain. See September 2020 Board Decision and Remand. Therefore, the Board will not assign this opinion any probative value with respect to etiology. Notably, the examination is entitled to probative value regarding the correct diagnosis of the Veteran’s current right knee disability, as the deficiency with respect to the medical history has no obvious impact on the physical examination and diagnosis of the condition. Accord Mozingo, infra. VA obtained a September 2020 VA Addendum Opinion opining that the Veteran’s diagnosed bilateral knee strain was not incurred in and was not otherwise related to his active service. The examiner explained that, although there were several entries in the medical records of complaints of knee pain, the entries usually refer to “occasional” or otherwise temporary knee pain such that they did not support finding a chronicity of symptomatology. Moreover, the examiner stated that the symptoms can be acute, recurrent or chronic with no clear established onset, but “very unlikely in active service, where there is not evidence of problems with either knee, separation exam is silent for any knee condition, there is not continuity/chronicity, and first complaint is documented more than 2 decades after separation.” The opinion is entitled to probative weight against the claim as it is based on an accurate history and contains reasoning that links the facts and medical principles to the conclusion stated by the examiner. Nieves-Rodriguez, infra. Finally, while the Veteran is competent to report that he had episodes of right knee pain during service and after service, his reports are largely not credible, to the extent they indicate any acute in-service injury or chronic condition in service or continuing after service due to the fact that he did not report any such injury during service despite documented treatment for other relatively more minor conditions during service, his explicit denial of current or past right knee symptoms on the Report of Medical History at separation, and the lack of complaints of any right knee issues for many years after service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, he lacks any medical training or experience that would equip him to opine on the etiology of his currently diagnosed condition (such as whether the alleged in-service subjective symptoms are related to the current condition). Consequently, the Board gives more probative weight to the September 2020 VA examiner’s opinion. To reiterate, as noted above, the greater weight of the evidence is against finding that the in-service element of the Veteran’s claim was met. In addition, even assuming the Veteran’s subjective complaints of knee pain should be credited and would constitute an in-service injury or event, the greater weight of the evidence is against finding that the Veteran’s current right knee disability is related to any in-service events. The greater weight of the evidence is against finding that the Veteran has a current right knee disability that began during active service, or is otherwise related to an in-service injury or disease. Entitlement to service connection for a right knee condition is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA’s compliance with the duties to notify and assist. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus The November 2020 VA examiner’s opinion is inadequate. The examiner states that “there was no report of tinnitus until 1996.” In fact, the Veteran reported tinnitus at a February 1989 VA ENT Clinic Visit during which the Veteran complained of increased cerumen in the left ear that was not relieved with attempted removal. The Board also notes that the record contains a June 1968 service treatment record which documents a need to clean the Veteran’s ear of cerumen. The Veteran has alleged that the in-service cleaning of his ears damaged his ear and resulted in tinnitus. See November 2015 Board Hearing Tr. at 35 (describing in-service attempts to clean his ears and concluding: “The ringing would still be there but all the wax would be gone. So I know that had a lot to do with damaging my ears that amount of time that she spent on [trying to get that wax out.]”); see also September 2013 Veteran Statement (“the nurse . . . shot a ‘gun’ full of water at least twelve to fifteen times in each ear and that my ears were damaged from that treatment. I contended that the airplane noise and the ‘treatment’ were the cause [of the ringing in his ears]”). The examiner should comment on this theory including the in-service noise exposure, the in-service and post-service wax/cerumen buildups, and the in-service cleaning that the Veteran alleges damaged his ears. The Board will not summarize all of the post-service records relating to the ears, but the 1989 ENT clinic note is not the only relevant treatment record. There are others. Again, a non-exhaustive list includes a September 1971 note indicating “ears cleaned” and an October 1996 VA ENT Clinic Note. On remand, the examiner should review all of the evidence and comment on the most relevant evidence. The November 2020 VA examiner’s rationale is based on an inaccurate summary of the evidence, so is inadequate. See Nieves-Rodriguez, 22 Vet. App. at 304; Reonal, 5 Vet. App. at 461. Remand for an adequate opinion is necessary. 2. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim of entitlement to service connection for headaches Because a decision on the remanded issue of entitlement to service connection for tinnitus could significantly impact a decision on the headaches claim, the issues are inextricably intertwined. A remand of the request to reopen the headache claim is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tinnitus is at least as likely as not related to his active service to include conceded excessive noise exposure during service, cerumen buildup in service, and/or an in-service (1968) ear cleaning as described by the Veteran at the November 2015 Board Hearing. It would be helpful if the examiner commented on the significance of the service records (including the 1968 ear cleaning and the absence of a threshold shift from entrance to separation according to the September 2020 VA examiner), the 1971 treatment note indicating an ear cleaning, the February 1989 VA ENT clinic note indicating constant tinnitus, and any other records the VA examiner deems relevant to determining the etiology of the Veteran’s tinnitus. It would be helpful if the examiner commented on any medical evidence or principles that favor or disfavor crediting the Veteran’s report of tinnitus since 1968. 3. If, and only if, service connection is granted for tinnitus, schedule the Veteran for an appropriate VA examination for his claimed headache disability. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. Then, the examiner should determine whether the Veteran has a diagnosis of a headache disability, and, if so, whether (a) it is at least as likely as not caused by his active service, or, in the alternative, (b) caused or aggravated by his tinnitus. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.