Citation Nr: 21028088 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-15 170 DATE: May 10, 2021 ORDER Entitlement to service connection for a right leg injury is denied. Entitlement to service connection for bronchitis, to include as secondary to asbestos exposure, is denied. Entitlement to service connection for residuals of a deviated septum surgery is denied. Entitlement to service connection for short-term memory loss is denied. Entitlement to service connection for left hand numbness is denied. REMANDED Entitlement to service connection for an eye condition is remanded. Entitlement to service connection for a prostate condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran currently has a right leg injury that began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had diagnoses of bronchitis, residuals of a deviated septum surgery, short-term memory loss, or left-hand numbness at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bronchitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for residuals of a deviated septum surgery are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a short-term memory loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for left hand numbness are not 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 served on active duty from February 1975 to February 1981, and from March 1981 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The matters were previously remanded by the Board in September 2018 for additional development. 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a right leg injury The Veteran seeks service connection for a right leg injury. At the Board hearing, the Veteran testified that he has had numbness of the right leg since an in-service motorcycle accident in 1983. He explained that he has problems with his leg after sitting for extended periods of time. The Board concludes that, while the Veteran has a current diagnosis of right leg meralgia paresthetica, and evidence shows that an in-service right thigh injury occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of meralgia paresthetica began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records from October 1983 indicate the Veteran was thrown from his motorcycle and injured his right thigh. Service separation medical examination reports from February 1994 do not indicate the Veteran reported having any issues with his right leg. In July 2011, the Veteran underwent and electromyography (EMG), which showed normal results of a nerve conduction study of the right lower extremity. VA treatment notes from May 2015 indicate the Veteran reported having right leg stiffness. In a lay statement submitted by the Veteran's spouse in October 2017, she explained that she has observed since 1989 that the Veteran has had right thigh pain and numbness. In December 2019, the Veteran was afforded VA examinations and a medical opinion was obtained. He was noted to have mild numbness and intermittent pain of the right lower extremity, and diagnosed with meralgia paresthetica. The examiner determined that, based on a review of the Veteran's medical records, it was less likely than not that the right leg condition was incurred in or caused by service, including the October 1983 motorcycle accident. The examiner also opined that it is less likely than not that the right leg condition is proximately due to or the result of the Veteran's service-connected lower back disability. As rationale, the examiner stated that the lateral femoral cutaneous nerve supplies sensation to the surface of the thigh, and meralgia paresthetica occurs when the nerve becomes compressed, or pinched. He stated that because the lateral femoral cutaneous nerve is purely a sensory nerve, it does not impact the use of the Veteran's leg muscles, and risk factors for the condition include, but are not limited to, tight clothing, weight gain, and age. The examiner noted that individuals between the ages of 30 and 60 are at a higher risk for the condition. He concluded that based on the Veteran's claims file and medical literature, the 1983 motorcycle injury did not cause meralgia paresthetica, as the injury did not cause any permanent damage to the joints or muscle. The examiner's 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 v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his right leg condition is related to an in-service injury. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue, as he lacks the medical knowledge and education to make such an assessment. Therefore, it is outside the competence of the Veteran. 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 December 2019 medical opinion. Accordingly, the claim of entitlement to service connection for a right leg injury must be denied. 2. Entitlement to service connection for bronchitis, to include as secondary to asbestos exposure The Veteran contends that he is entitled to service connection for bronchitis, including as due to asbestos exposure that occurred while aboard the U.S.S. Fiske during service. The Board concludes that the Veteran does not have a current diagnosis of bronchitis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An in-service report of medical examination shows the Veteran reported having pain or pressure in the chest in November 1980. However, no other service treatment records indicate the Veteran had any respiratory or chest complaints or conditions. Post-service private medical records indicate the Veteran was diagnosed with and treated for acute tracheal bronchitis in April 2002. The Veteran was treated for the condition again in February 2008. The Veteran was afforded a VA respiratory conditions examination in December 2019. He reported that while in service, he was tasked with removing asbestos insulation aboard a naval ship in 1976. The examiner determined that the Veteran did not have a current diagnosis or residuals of any respiratory condition. He also stated that the Veteran's service treatment records and post-service medical records fail to show a diagnosis of asbestosis, X-rays were negative, and the Veteran does not have a diagnosis of chronic bronchitis. While the Veteran believes he has a current diagnosis of bronchitis, he is not competent to provide a diagnosis in this case. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). His initial diagnosis of and treatment for bronchitis occurred in 2002, seven years after service discharge, and 26 years after the reported in-service exposure to asbestos. The evidence of record does not indicate that the Veteran has had bronchitis at any point since filing his claim in October 2011. Consequently, the Board gives more probative weight to the competent medical evidence of record, including the VA examiner's December 2019 report. Accordingly, the claim of entitlement to service connection for bronchitis must be denied. 3. Entitlement to service connection for residuals of a deviated septum surgery The Veteran seeks service connection for residuals of a deviated septum surgery that occurred during service. In a January 2018 lay statement, the Veteran stated that the deviated septum has returned. The Board concludes that the Veteran does not have a current diagnosis of residuals of a deviated septum surgery and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321 (2007). Service treatment records show the Veteran underwent a septoplasty operation in April 1990. Post-service medical records fail to show the Veteran has required treatment for any residuals associated with the surgery. During a December 2019 VA examination, the Veteran reported that he had surgery for a deviated septum and fracture nose caused by boxing during service. The examiner noted that the Veteran has diagnoses of chronic sinusitis and allergic rhinitis due to seasonal allergies, but determined that these conditions were not related to the Veteran's deviated septum surgery. He explained that the Veteran overuses allergy medication with decongestant, and is therefore having rebound nasal congestion as a result. The examiner concluded that a medical nexus opinion could not be provided because the Veteran did not have diagnosis related to or caused by his deviated septum surgery. As previously noted, the Veteran does not have the requisite medical training to provide a diagnosis in this case. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent report and findings from the December 2019 VA examiner. The examiner reviewed the Veteran's records, and provided an explanation for why the currently diagnosed sinus conditions are not residuals of the Veteran's in-service deviated septum surgery. Accordingly, the claim of entitlement to service connection for residuals of a deviated septum surgery must be denied. 4. Entitlement to service connection for short-term memory loss The Veteran contends he is entitled to service connection for short-term memory loss. At the Board hearing, the Veteran testified that he initially thought that when he developed memory loss issues during the early 1990s that is was related to stress. However, as time progressed, he continued to experience memory issues. He believes the short-term memory loss may be secondary to his service-connected traumatic brain injury (TBI), or, alternatively, the result of exposure to environmental hazards during the Gulf War. The Board concludes that the Veteran does not have a current mental disorder or cognitive diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321 (2007). Service treatment records are silent for any treatment for or diagnosis related to short-term memory loss. Post-service treatment records show the Veteran repeatedly reported having memory loss problems in May 2000, June 2000, March 2001, September 2004, May 2015, and January 2018. In November 2019, the Veteran was afforded VA examinations regarding residuals of a TBI and mental disorders. Each examiner noted the Veteran's history of memory loss reports recorded in his medical records. The VA psychologist determined the Veteran did not have a diagnosed mental disorder. During the TBI examination, the VA neurologist observed that the Veteran had difficulty with memory tests. The VA neurologist noted that the Veteran's current presentation may be an early sign of a progressive degenerative brain disease, but there are insufficient clinical signs to make a diagnosis at the time. The Board acknowledges that the Veteran currently has memory issues, but he has not been formally diagnosed with a condition. Since the November 2019 VA examinations, the Veteran has not submitted medical records or lay statements indicating he now has a current diagnosis. Therefore, probative weight is given to the November 2019 VA examiner's determinations. Accordingly, the claim of entitlement to service connection for short-term memory loss must be denied. 5. Entitlement to service connection for left hand numbness The Veteran also contends that he is entitled to service connection for left hand numbness, to include as secondary to his service-connected TBI. In a January 2018 lay statement, the Veteran stated that he experiences numbness in his left fingers when holding objects. The Board notes that the Veteran is currently service-connected for left thumb and left little finger disabilities. The Board concludes that the Veteran does not have a current diagnosis of a left hand condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321 (2007). Service treatment records are silent for any complaints, treatment, or diagnosis of a left-hand condition. June 2000 private medical records show the Veteran reported having left hand numbness for several months. In September 2000, the Veteran's private physician provided a letter stating that based on an EMG, the Veteran has a diagnosis of carpal tunnel syndrome. However, during an April 2015 VA examination, the Veteran's only diagnosis was for his left little finger. The Veteran did not report having numbness of the left hand. In December 2019, the Veteran was afforded VA examinations to assess any hand and finger conditions, as well as any peripheral nerve conditions. He was not diagnosed with a left hand condition, and the examiner noted that the previously diagnosed carpal tunnel syndrome was now resolved. Because the Veteran does not have a current diagnosis of left hand numbness, a medical nexus opinion could not be rendered. The Board acknowledges the Veteran's reports of left hand numbness, but he has not been formally diagnosed with a condition, nor has he reported or provided medical records since the December 2019 examination establishing a current diagnosis. Therefore, probative weight is given to the December 2019 VA examination reports Accordingly, the claim of entitlement to service connection for left hand numbness must be denied. In reaching these conclusions, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an eye condition is remanded. The Veteran contends that he is entitled to service connection for an eye condition. Service treatment records show the Veteran was treated for eye complaints in June 1979, October 1979, and March 1986. The Veteran attended a VA examination in November 2019, during which he was diagnosed with posterior vitreous detachment (PVD) and cataracts. The examiner remarked that there was no current pathology from the in-service eye treatments, and his distance acuity was good with glasses. He opined that the Veteran's PVD was less likely than not due to service, but noted the condition could have occurred earlier than the usual age of onset due to the Veteran's history of boxing in the military. In July 2020, the RO indicated that attempts were made to have the November 2019 VA examiner to clarify whether the Veteran's PVD is related to his history of boxing during active duty. An additional medical opinion was obtained in February 2021, but the examiner made no mention of the Veteran's PVD diagnosis, nor did he respond to the July 2020 request for clarification. Remand is required to obtain an addendum medical opinion. See 38 C.F.R. § 3.159(c)(4) 2. Entitlement to service connection for a prostate condition is remanded. The Veteran contends that he is entitled to service connection for prostatitis. The Board has broadened the claim to include any prostate condition. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). During service, the Veteran sought treatment for prostatitis in November 1992, and was prescribed medication. Private post-service medical records from March 2001 show the private physician noted that the Veteran has a history of prostatitis, which left him with an enlarged prostate. Private treatment notes from 2006 and 2007 also show the Veteran was assessed to have an enlarged prostate. During a December 2019 VA examination, the examiner diagnosed the Veteran with benign prostatic hyperplasia (BPH, or in other words, enlarged prostate) and noted that his prostatitis has resolved. The examiner incorrectly stated that the Veteran's enlarged prostate was not noted until 2015. He concluded that the Veteran's enlarged prostate was the result of his age. The Board finds the opinion is inadequate and remand is warranted so that an addendum opinion may be obtained. See 38 C.F.R. § 3.159(c)(4) The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA medical records. 2. Provide the Veteran's claims file, and a copy of this remand, to an appropriate clinician to determine the etiology of the Veteran's claimed eye condition. The examiner is asked to respond to the following: (a.) List each of the diagnoses associated with the Veteran's eyes (b.) Whether the Veteran's claimed eye condition is at least as likely as not (50% probability or greater) related to his military service, to include boxing during service 3. Provide the Veteran's claims file, and a copy of this remand, to an appropriate clinician to determine the etiology of the Veteran's claimed prostate condition. The examiner is asked to respond to the following: (a.) List each of the diagnoses associated with the Veteran's prostate. (b.) Whether the Veteran's claimed prostate condition is at least as likely as not (50% probability or greater) related to his military service, to include an in-service diagnosis of prostatitis. (c.) The examiner must address the medical records indicating that the Veteran has an enlarged prostate as a result of prostatitis. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.