Citation Nr: 21012969 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 12-11 457A DATE: March 8, 2021 ORDER Service connection for a lower extremity condition is denied.   FINDING OF FACT The Veteran’s condition manifested by numbness of the lower extremities is not due to service or secondary to service-connected a back disability, right ankle disability, or left leg disabilities. CONCLUSION OF LAW The criteria for service connection for numbness of the lower extremities have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1978 to January 1983. This matter is on appeal from an August 2010 rating decision. This matter was reopened and remanded by the Board in August2016, and remanded in May 2017, February 2018, June 2019, May 2020, and August 2020. The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in January 2016. In December 2020, the Board sent the Veteran a letter informing her that the VLJ who conducted the January 2016 Board hearing had become unavailable to issue a final decision in her appeal, and, as a result, she had the right to an additional hearing before another VLJ, who would issue the final decision in her appeal. The Board’s letter went on to advise her that if she did not respond within 30 days, the Board would assume she did not want another hearing and would proceed accordingly. She did not respond to the Board’s letter. Therefore, the Board will now proceed on the assumption that she does not want another hearing. The issue of a rating higher than 20 percent for right ankle disability remains in a separate appeal stream. The Veteran requested a Board hearing on the matter in her November 2019 VA Form 9. That hearing request remains pending. The Veteran will be separately notified once that hearing is scheduled. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for numbness of the lower extremities. The Veteran contends that she has a current disability involving numbness of the lower extremities that started during service. She testified at her January 2016 Board hearing that she had multiple accidents during service giving rise to the current condition. Board Hr’g Tr. 3. First, she fell down a flight of stairs. She lost consciousness and when she regained consciousness, she could not move her legs. Board Hr’g Tr. 3-4. Second, she was in a motorcycle accident in approximately 1980 or 1981. Board Hr’g Tr. 5. Third, she slipped while walking across a coral reef, which resulted in her left leg going through and being sliced by a rusted drum. Board Hr’g Tr. 9. Finally, she was attempting to open a heavy hatch on a ship, when water came down, wetting the ladder she was standing on, which caused her to fall down the ladder. Board Hr’g Tr. 10. The Veteran also feels that her work during service as a sonar technician, which involved sitting for 12 hours per day, caused or contributed to the onset of the condition. See 6/14/2017 testimonial statement. The Veteran maintains that her symptoms initially arose with the first injury and were worsened by each subsequent injury. Board Hr’g Tr. 7. The symptoms then continued after service. Board Hr’g Tr. 14. She explained that she was not treated for the symptoms until 2008 because her legs were not as bad as her other medical conditions. Board Hr’g Tr. 20-23. Alternatively, the Veteran contends that her condition is secondary to a service-connected back disability, right ankle disability, and/or left leg disability. See, e.g., Board Hr’g Tr. 15. A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. B. Discussion Direct Service Connection The first 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 current disability and evidence shows that the injuries occurred during service, the preponderance of the evidence weighs against finding that the Veteran’s condition manifested by lower extremity numbness began during service or is otherwise related to an in-service injury, event, or disease. In this regard, the evidence shows the existence of a current diagnosis. An electromyogram (EMG) test and nerve conduction study (NCS) conducted at VA in March 2016 confirmed a diagnosis of axonal neuropathy. Hence, a current disability is established. The Veteran wrote in a June 2017 statement that she believes she has a mononeuropathy. While the Veteran is competent to report symptoms of her condition, she is not competent to provide a diagnosis in this case as the question of diagnosis is medically complex. It requires interpretation of complicated diagnostic medical testing, which is outside her competency as a lay (non-medical) person. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Next, the evidence shows that the Veteran was injured during service. As she testified, her service treatment records (STRs) show an initial injury in January 1980. She was admitted for a concussion and back trauma. She complained of inability to move her legs and was found to have apparent sensory loss from groin distally bilateral, as she did not respond to pinprick. The assessment was lower extremity paraplegia, questionable hysterical. She underwent further evaluation, which found that the sensory loss did not correspond to any anatomical nerve root. It was also observed that even though she denied the ability to move legs, she moved both lower extremities once briefly when asked to turn to the side. At a different consultation, it was noted that although she reported inability to move or feel her legs, she grimaced when distracted with pinprick to the toes. Likewise, she would not move her lower extremities on command, but was observed moving her toes and feet following examination. It was felt she may have some sort of secondary gain from being hospitalized. As such, the Veteran was referred for a psychiatric examination, which noted significant stress and some dissatisfaction for her job. But, no basis for any psychiatric diagnosis was found and, in light of the resolution of her paralysis, no follow-up was recommended. The next injury occurred in December 1980 when the Veteran was treated for a laceration to the left leg after stepping on a garbage can lid with a sharp edge. The third injury occurred in August 1981 when treated after a motorcycle accident resulting in abrasions and soft tissue injuries. Finally, she was seen in September 1981 for a right ankle injury after attempting to open a weapons hatch. She fell down 2 rungs of stairs, between the rungs, causing injury. She reported pain to the right ankle. This evidence confirms the four injuries during service, as the Veteran testified at her Board hearing. This evidence does not confirm the existence of her complaints of symptoms beginning from the initial injury. As indicated, the STRs contradict the occurrence of the symptoms. On multiple occasions, it was indicated that her complaints were fabricated as she demonstrated the ability to move and feel her legs at a time she reported that she could not do so. This tends to undermine the credibility of her assertions that she had symptoms beginning in service. The STRs are otherwise silent for the complaints the Veteran now maintains occurred during service. Notably, she was extensively treated on multiple occasions for the other injuries that occurred during service, but she never voiced complaints regarding numbness or pain in either lower extremity. In fact, in March 1980, a neurologic examination during treatment for back strain was found to be within normal limits. A July 1982 Medical Evaluation Board report noted that she had no significant complaints during a period of limited duty. At her service separation examination in December 1982, a physical examination of the lower extremities and neurologic systems was negative. Thus, there is no indication of complaints where it appears reasonable to assume that such would have been recorded if present. The Veteran now maintains that her complaints existed at those times and that she was aware of them. Importantly, however, her treatment during service was for injuries and complaints in closely related anatomical regions. In fact, her service separation examination was a comprehensive evaluation to identify all symptoms that occurred at that time or had ever occurred. It is reasonable to assume that she would have voiced all complaints involving the legs at some point if they had occurred. Hence, the silence in the STRs is evidence tending to indicate that such complaints did not occur. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019). Overall, this evidence establishes the occurrence of the injuries during service, but not the symptoms which she now asserts first arose in service. Service connection cannot otherwise be established on a direct basis because the preponderance of the evidence is against a nexus. First, the reports of ongoing symptoms after service are not credible. To this end, the post-service medical records reveal inconsistencies regarding the onset of the Veteran’s symptoms. She was seen at VA in January 1989 for complaints of chronic low back pain. She identified the first injury during service where she fell down the stairs. She did not identify any symptoms in either lower extremity, and a physical examination showed that there was no radiculopathy to either leg. A neurologic examination was likewise negative. The Veteran was then seen by VA’s Orthopedic department in February 1989 for complaints of chronic low back pain. She reported her back trauma and lower extremity paralysis that occurred, but noted that the paralysis had resolved over 7 hours. She did not indicate any extant symptoms in either lower extremity, and physical examination again failed to reveal any positive findings. Finally, she was seen in December 2010 for complaints of low back pain for the prior 3 weeks. She reported that this started when bringing in groceries, which she felt might be the cause of her back pain. She stated that she was also having numbness in the legs, which had started the same day. However, she did report “chronic weakness” in the right leg. The intervening medical records between February 1989 and December 2010 do not document any complaints involving numbness in either lower extremity. Several years later, the Veteran underwent a VA Neurology consultation in February 2016. At that time, she reported the fall down the stairs during service with lower extremity paralysis for several hours. She stated that she would still have bouts of numbness and tingling in her legs after that. This evidence tends to impeach the credibility of the current assertions. The Veteran complained of chronic weakness in December 2010, but only in the right leg (at a time she now maintains that symptoms were occurring in both lower extremities). It was not until the February 2016 consultation that she first reported symptoms in both legs after the initial in-service injury. Significantly, the Veteran first filed a claim of service connection for this condition in June 2010. With this in mind, the complaints in December 2010 and February 2016 make it appear that secondary gain may have been a motivating factor as it was in her interest from that time to assert symptoms beginning from service. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness) At her Board hearing, the Veteran testified that she had not previously complained of those symptoms during treatment because she had learned to live with it. She indicated that she had sought treatment for other conditions, but not her legs, because the legs were not as bad. Board Hr’g Tr. 20-23. The Board finds that her testimony is not facially implausible. However, in overall context, her report of symptoms since service appear more likely to be a misrepresentation for the reasons discussed. Other evidence in the file also tends to call into question the Veteran’s credibility more generally. For example, she wrote on her December 1978 service enlistment examination that she was not taking any medication at that time. Yet, at a July 2019 VA examination, she reported that she was taking testosterone (for an unrelated reason). Other representative examples include non-VA treatment in May 2006, where the Veteran was noted to have described combat experiences during service in which she suffered fairly severe injuries. She spoke about falling off a cliff in Panama during a firefight in which she had to shoot a few people. She reported being sent on an expedition to Cuba in which she became shot. She made similar statements during treatment at VA in August 2008 and a VA examination in October 2015. Her official service department records show that these events did not occur. Hence, this evidence shows that she has intermittently attributed her current medical conditions to combat in service where the service records affirmatively show that they occurred in non-combat situations. The evidence also shows that the Veteran was convicted of a felony sexual assault. At a July 2019 VA examination, she stated that the assault never occurred. Yet, at a December 2005 non-VA medical consultation, she gave a detailed account of the event, which appears to concede the occurrence of the sexual assault. Also bearing on her credibility, she stated at a March 2011 VA Vocational Rehabilitation and Employment (VR&E) interview that she had only been able to work for a prior employer by lying about her past. Finally, a July 2017 VR&E report notes an earlier felony conviction for stealing $56,000 in computer equipment. Collectively, these representative examples tend to show that the Veteran is not a reliable or trustworthy historian. As such, her current assertions of symptoms beginning during service and continuing thereafter are not credible. As there is otherwise no objective evidence to support her testimony, there is no credible evidentiary basis to support a direct nexus to service on the basis of a continuity of symptomatology since service. A nexus to service is not otherwise supported. Several VA examiners have reviewed her case and reached negative opinions. First, in August 2016, a VA examiner opined that her condition was less likely than not (less than 50% probability) incurred in or caused by service. The examiner found no medical documentation related to injuries the Veteran described, including no records of a hospitalization for acute paralysis of the lower extremities. As the Board previously pointed out in a May 2017 remand, this examination is essentially nonprobative as it was based on an inaccurate medical history. The VA examiner found no documentation of the in-service injuries or complaints where such evidence existed. The same VA examiner gave a second opinion in June 2017. The examiner again reached a negative conclusion. The Board in February 2018 again remanded the matter for a new opinion as there was an indication of missing records not considered by the examiner. A different VA examiner gave a third opinion in March 2019. The Board in June 2019 again remanded for a new opinion as it was not clear to the Board that the examiner reviewed the complete hospitalization records that were added to the claims file in May 2018 in addition to the STRs that made the single general reference to “stocking/glove paralysis.” A different VA examiner gave a fourth opinion in June 2020. The VA examiner opined that the Veteran’s condition was less likely than not related to service. The examiner accurately summarized the STRs following the January 1980 down a flight of stairs backwards. The examiner then found no evidence of any continuity of this paralysis in the STRs with silence in the records until 2010 when the Veteran complained of numbness of legs and was diagnosed with chronic axonal polyneuropathy. The examiner then focused on an opinion and also literature showing that “Patients with chronic axonal polyneuropathies generally experience a slow progression of disease over a period of years,” and “in patients with diabetic polyneuropathy or older adults with an idiopathic axonal polyneuropathy, sensory loss will slowly ascend and increase in severity in the legs before the hands become affected.” The examiner noted records showing the Veteran had diabetes, which would be one of the biggest risk factors for polyneuropathy. The examiner reiterated that the Veteran experienced trauma in service in January 1980, with noted paralysis that was temporary as the next day it was resolved, and records were then silent for 30 years until the diagnosis of neuropathy. Due the lack of continuity of symptoms from what occurred during the service, the examiner found it less likely than not that there is a current neuropathy condition related to or caused by the complaints of temporary paralysis due to falling from stairs in January 1980 during the service. Thereafter, the RO referred the matter for a fourth opinion, which was given in November 2020 by a different examiner. This examiner observed that notes from the January 1980 hospitalization after the fall showed: “[s]ubjectively, the patient claimed sensory loss from the groin distally bilaterally and would not respond to pinprick.” The examiner pointed out, however, that when the patient was distracted, she did grimace with pain upon pinprick, and the remainder of the neurologic examination had been normal. Therefore, the VA examiner concluded, the Veteran actually had sensation on pinprick examination, which meant that there was no true loss of sensation on examination. So, the examiner opined, it is less likely as not that the Veteran’s peripheral neuropathy, right, is related to apparent sensation loss of bilateral lower extremities when she was hospitalized in January of 1980. The examiner further explained that a fall would be less likely as not to lead to a stocking-like distribution (described as stocking-type distribution in service and on August 2016 disability examination). Taken together, the June 2020 and November 2020 VA examiners’ opinions establish that the Veteran’s condition is not at least as likely as not related to service. In fact, the November 2020 VA examiner established that the Veteran never had an onset of symptoms during service. On an overall reading, the examiner appeared to be implying that the Veteran’s symptoms could not be related to the injury in service because she never had actual sensory loss during service. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (A VA examination report “must be read as a whole” to determine the examiner’s rationale.) The examiners’ combined opinions are probative, because they were based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions also substantially address the questions raised in the prior Board remands. See Stegall v. West, 11 Vet. App. 268 (1998); see D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The Veteran believes her condition is directly related to service. The Veteran, however, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, the pathology of a complex neurologic conditions, and the interpretation of complicated diagnostic medical testing. It is outside the competence of the Veteran in this case because the record does not show that she has the medical training or background to make such a determination. Jandreau, 492 F.3d at 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 VA examiners’ opinions. Overall, therefore, the weight of the evidence is against the direct theory of entitlement. Secondary Service Connection The Veteran alternatively contends that her condition is secondary to a service-connected back disability, right ankle disability, and/or left leg disability. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s condition is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. § 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In relevant part, she is currently service connected for degenerative joint and degenerative disc disease of the thoracolumbar spine; postoperative residuals, fracture, right ankle; and painful scar, residuals, laceration, left leg. The August 2016 VA examiner opined that her condition is less likely than not (less than 50% probability) proximately due to or the result of a service-connected condition. The examiner opined that her condition is not related to the service-connected spine condition. The examiner explained that a nerve condition in the lower extremities that is due to a lumbar spine condition would follow a radicular (dermatomal) pattern, but her condition is in a stocking distribution, so it is not due to the service-connected spine condition. The examiner also noted that her peripheral nerve condition is symmetrical, meaning that she had the same symptoms and findings in both lower extremities. Furthermore, the examiner observed, the right ankle injury involved a subluxed tendon that was surgically repaired, and the left leg injury involved a laceration, where were two different injuries. With regard to aggravation, the August 2016 VA examiner explained that she is service connected for a lumbar spine condition, and an aggravation related to the lumbar spine condition would involve a radiculopathy, which would cause signs and symptoms in a dermatomal pattern. She has signs and symptoms in a stocking distribution and not in a radicular or dermatomal pattern, so the service-connected lumbar spine condition has not aggravated the non-service-connected peripheral neuropathy. With regard to the right ankle, the examiner found that the right ankle injury involved a recurrently subluxing peroneal tendon. This subluxing tendon was surgically repaired. If there had been an injury to a peripheral nerve due to the ankle injury, the subluxing tendon or the surgical repair, the injured nerve would have been on the lateral aspect of the right ankle and would result in symptoms related to the distribution of the injured nerve. As she had widespread symptoms in her right lower extremity, the examiner concluded that the right ankle injury and subsequent surgery had not aggravated the peripheral nerve condition. With regard to the left leg disability, the examiner noted that the disability involved an injury to the mid portion of her left lower leg, on the lateral aspect. If there had been an injury to a peripheral nerve due to the left lower leg injury, the injured nerve would have been on the lateral aspect of the left lower leg, left ankle, and left foot, and it would result in symptoms related to the distribution of the injured nerve. As she had widespread symptoms in her left lower extremity, the examiner concluded that the left lower leg injury and subsequent surgery had not aggravated the peripheral nerve condition. In the June 2017 opinion, the VA examiner further explained that based on the history of her previous surgery to repair the ankle fracture (ORIF of right distal fibular fracture), it is at least as likely as not that the scar tissue that formed after the surgery caused entrapment of the nerves at the site of the surgery. [The Board observes that she is separately service-connected for a residual scar of the right ankle fracture surgery.] The VA examiner explained that with cold exposure, exercise or prolonged standing, these nerves would likely become compressed, decreasing their function and cause symptoms of decreased or altered sensation. This would be a compressive neuropathy, a known complication from a surgical procedure. As the symptoms of this type of neuropathy (compressive) were episodic and transitory, the condition did not cause a significant disability. The examiner made clear that a compressive neuropathy does not cause or lead to an axonal neuropathy. The examiner found no nexus that connected the in-service unilateral ankle condition with the bilateral peripheral neuropathy and no evidence that showed that the service-connected right ankle condition had aggravated the non-service-connected peripheral neuropathy beyond its natural progression. With regard to the service-connected lumbar spine and left leg disabilities, the VA examiner observed that the Veteran had no lumbar radiculopathy and no nexus to the left leg laceration, including aggravation of her neuropathy condition. Taken together, these VA opinions establish that the Veteran’s condition is not at least as likely as not secondary to a service-connected disability. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. While the prior Board remands found inadequacies in this VA examiner’s opinions regarding direct service connection, the Board found no deficiencies regarding the secondary opinions. At present, the Board can again find no reason to call into question or otherwise discount the probative weight of the VA examiner’s opinion on the secondary theory. The examiner’s explanation is understandable, and all inferences appear to follow from the facts and information given. See Monzingo, 26 Vet. App.at 105-06; Nieves-Rodriguez, 22 Vet. App. at 304. Thus, overall, the VA examiner’s opinion is of great probative weight and establishes why, as a medical matter, a secondary nexus in this case is unlikely. The Veteran believes her condition is secondary to a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this question. The issue is medically complex, as it requires knowledge of the interaction between multiple conditions in the body, plus the pathology of causation and aggravation between those multiple conditions. It is outside the competence of the Veteran in this case because the record does not show that she has the background or medical training to make such a determination. See Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the VA examiners’ opinion. In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, service connection for a lower extremity condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.