Citation Nr: 21041464 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 11-14 609 DATE: July 9, 2021 ORDER Entitlement to service connection for meralgia paresthetica of the left lateral cutaneous nerve is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. Meralgia paresthetica of the left lateral cutaneous nerve was not incurred in service, was not otherwise caused by service (including as the result of herbicide exposure), and was not caused or aggravated by a service-connected disability. 2. A right ankle disability was not incurred in service and was not otherwise caused by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for meralgia paresthetica of the left lateral cutaneous nerve have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). 2. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from July 1971 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision from a VA Regional Office (RO). The Veteran had a hearing before one of the undersigned Veterans Law Judges (VLJs) in October 2016. The issues were remanded by the Board in February 2017 for additional development, which was completed. The Veteran also had a Board hearing before another of the undersigned VLJs in January 2021. (The issues of whether new and material evidence has been received sufficient to reopen a claim for intestinal issues and entitlement to service connection for a gastrointestinal disability, a respiratory disability, a bilateral hearing loss disability, a left ankle disability, hypertension, sleep apnea, a vestibular disability, and an acquired psychiatric disorder are the subject of a separate decision by the Board.) Service Connection 1. Entitlement to service connection for meralgia paresthetica of the left lateral cutaneous nerve 2. Entitlement to service connection for a right ankle disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. In addition, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). In addition, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam-era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." This allows for presumptive service connection of the diseases associated with herbicide exposure to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Neither of the Veteran's claimed disabilities are listed under section 3.309(e). As such, the presumptive provisions discussed above are not for application in this case. The Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease contended to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability, comparing it to the current level of disability, and showing that the secondary condition was not due to the natural progression of a disease. 38 C.F.R. § 3.310(b). The Veteran contends that he incurred a right ankle disability in service with a continuity of problems to the present. He also claims that meralgia paresthetica of the left lateral cutaneous nerve was incurred in service as the result of an injury, was caused by in-service herbicide exposure, or was caused or aggravated by a service-connected disability. The Veteran's July 1975 Report of Medical Examination prior to separation from service included normal examinations of all systems. In a contemporaneous Report of Medical History, the Veteran denied a history of arthritis, joint deformity, or neuritis. The records are silent for any treatment for either disorder in service. Private treatment records document a diagnosis of meralgia paresthetica of the left lateral cutaneous nerve from July 2007, but the specific basis for the diagnosis was not noted at that time. In a December 2008 statement, the Veteran alluded to twisting his ankle in 1971 during service. He also reported ongoing symptoms from service, with treatment on several occasions, including between 1980 and 1985 at a Portland, Oregon VA facility. The Veteran established care with VA in August 2009. At that time, he had noted meralgia paresthetica and edema in the lower extremities. In August 2009, the Veteran reported to a private treatment provider concern for his meralgia paresthetica, which despite medication bothered him a lot, especially when at work at the post office that involved standing. During his October 2016 Board hearing, the Veteran testified that, as an aircraft repairman he sometimes fell while working on an aircraft, particularly at the tail section of the aircraft. The falls could have been from 8 to 10 feet and after the falls he would tape up his ankle. The Veteran testified that he did seek treatment from medics, but that "it wasn't a real set up, there wasn't real doctors and stuff." As to the left thigh claim, the Veteran testified that his doctors had told him that "most of it is" related to his diabetes. He also contended that he had experienced the thigh numbness since falling off the airplanes during service. In addition, the Veteran stated that he experienced left thigh numbness because he had to "wedge" the thigh into areas to stay on the plane during maintenance activities. The Veteran conceded that he did not seek treatment for his symptoms for many years after service. A July 2017 Report of General Information noted that the Appeals Management Office (AMO) had contacted the Record Archive section in an attempt to locate VA treatment records from 1980 to 1985 previously identified by the Veteran. The Records Archive noted that in May 2009 a search for those records had been undertaken and no records were found. In July 2017 and August 2017, VA notified the Veteran that the records could not be located. The Veteran was afforded a VA examination in September 2017. The examiner diagnosed bilateral ankle degenerative arthritis. The examiner noted that the service treatment records did not document an injury to either ankle. The Veteran believed that he had been seen in service for the right ankle, but that it was not documented. The Veteran stated that he was not seen again for the right ankle until 1980, which was a reaggravation of the injury occurring in service. Specifically, the Veteran indicated that during service he rolled both ankles frequently and that they felt unstable. He did not recall any post-service injuries to either ankle. Currently, the ankles were sore and stiff from standing or walking. Following examination, the examiner concluded that it was less likely than not that the Veteran's bilateral ankle arthritis was incurred in or caused by service. The rationale noted that the Veteran's bilateral ankle degenerative arthritis was most consistent with his years of working at the post office after service. X-rays showed evidence of old trauma to the left ankle, but the Veteran claimed that his in-service injury was to the right ankle and not the left ankle. There was no evidence of complaints or treatment for either ankle during service and, "There is very little documentation for musculoskeletal injuries in greater than thirty years after the service and no chronicity was ever established and therefore the fact that he has bilateral disease makes this most likely due to occupation in post office and Not [sic] at least as likely as not service related." In addition, the examiner concluded that it was less likely than not that the bilateral ankle arthritis was proximately due to or the result of the Veteran's service- connected condition. The rationale indicated that the examiner could find no medical evidence that herbicide exposure, diabetes, or a heart disability had any relationship to the degenerative arthritis of the ankles or aggravation of the ankle disabilities. Instead, the disabilities were more consistent with the Veteran's occupation after service. The Veteran reported injuring the right ankle in service, but that report was not consistent with the service treatment records, as the records were negative for an ankle injury, the Veteran listed his health as good at separation from service, and there was no documented chronicity for decades after service. The Veteran had pain with use of the ankles, which was consistent with the level of degeneration of the ankle joints. The Veteran underwent a VA left thigh examination in September 2017. The examiner diagnosed left lateral cutaneous nerve meralgia paresthetica. The Veteran reported burning and buzzing in the skin of the left thigh about the size of a football on the anterior left lateral thigh. The Veteran did not know the specific date of onset, but that it could be as far back as service. The Veteran did not remember being seen for the symptoms for many years after service. The Veteran did not recall the left thigh symptoms causing any limitations in his work activities in the years after service. Following examination, the examiner concluded that it was less likely than not that the left thigh disability was incurred in or caused by service. The rationale noted that review of the record did not reveal any diagnosis in service and that it was not until 2007 (or 30 years after service) that the Veteran sought treatment for the symptoms. The examiner discussed how the most common causes of the disability were injury, tight clothes, and swelling, none of which the Veteran had reported during service. Instead, the examiner believed that the disability was most consistent with the Veteran's work at the post office after service. In addition, the left thigh disability was less likely than not caused or aggravated by a service-connected disability. The rationale noted review of conflicting medical evidence and stated, "The meralgia paresthetica on the left leg is not aggravated by any herbicide exposure diabetes or heart condition as there is no known relationship as causes are not found to be related in the literature as most common cause is injury, swelling and tight fitting clothes and these are not related to [herbicide] exposure Diabetes [sic] or heart condi[]tion." During his January 2021 Board hearing, the Veteran claimed that a medical professional had told the Veteran that his left thigh problems were secondary to Agent Orange exposure and diabetes mellitus. As to his right ankle, the Veteran contended that he injured his right ankle during service, possibly in 1972. He claimed to have been issued an ankle brace by a medic. Left Thigh Meralgia Paresthetica The Veteran alleges that he has left thigh meralgia paresthetica was incurred in service as the result of an injury, was caused by in-service herbicide exposure, or was caused or aggravated by a service-connected disability. As an initial matter, the Board notes that the Veteran is service connected for left lower extremity neuropathy secondary to his diabetes mellitus. The Veteran has a current diagnosis of meralgia paresthetica. The crucial question, therefore, is whether the disability was incurred in service, was otherwise caused by service, or was caused or aggravated by a service-connected disability. As to granting the claim on a direct basis, the Veteran now appears to contend that the disability had its onset during service due to having to "wedge" the left leg in confined areas to keep from falling off the planes or otherwise due to injury from falling from one or more airplanes during maintenance activities during service. The Board finds such a claim is inconsistent with the Veteran's denial of any problems prior to his separation from service and that during his initial private treatment records after service he did not report any thigh problems. Moreover, during his September 2017 VA examination the Veteran could not state definitively that the left thigh problems started during service. Given these inconsistencies, the Board affords the Veteran's reports of in-service onset of problems and a continuity of symptoms from service no probative weight. In addition, the September 2017 VA examiner found that it was less likely than not that the left thigh disability was incurred in or caused by service. The rationale noted that review of the record did not reveal any diagnosis in service and that it was not until 2007 (or 30 years after service) that the Veteran sought treatment for the symptoms. The examiner also found that the meralgia paresthetica was unrelated to in-service exposure to herbicide agents. The examiner discussed how the most common causes of the disability were injury, tight clothes, and swelling, none of which the Veteran had reported during service. (In that regard, the Board notes that while the Veteran has discussed specific injury to the right ankle following falls off an aircraft, he has not provided any specific report of an injury to the left thigh. Moreover, as discussed above, given the Veteran's inconsistent statements regarding injury and symptom onset, the Board affords any lay assertions of in-service onset low probative weight.) Instead, the examiner believed that the disability was most consistent with the Veteran's work at the post office after service. The Board finds this opinion the most probative evidence of record, as the examiner provided a complete rationale for the opinion. The Board acknowledges the Veteran's testimony during his January 2021 Board hearing that a medical professional had told him the left thigh problems were due to herbicide exposure. As no rationale for this conclusion is of record, the Board affords greater probative weight to the conclusions of the September 2017 examiner, who did provide a complete rationale for the conclusions reached in discussing how there was no known medical link between meralgia paresthetica and herbicides and that the most common causes of meralgia paresthetica were injury, tight clothes, and swelling. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's contentions that the left thigh meralgia paresthetica was caused by in-service exposure to herbicide agents, including Agent Orange. The Veteran has conceded herbicide exposure due to his service in Thailand. The Veteran is competent to report physically observable symptoms involving the left thigh and his statements with respect to symptomatology are competent. That said, given the medical complexity of linking exposure to herbicide agents to a left thigh disability, such a conclusion falls far outside the competency of a lay person. As such, the Board affords the conclusions of the September 2017 VA examiner far greater probative weight, due to the examiner's greater level of education, training, and experience. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As to granting the disability as secondary to a service-connected disability, as noted above, the Veteran already is service connected for left lower extremity neuropathy as secondary to diabetes mellitus. Given the medical complexity of linking symptoms in the left thigh with the Veteran's service-connected diabetes mellitus and/or heart disability, the Board affords the Veteran's lay assertions attempting to link the meralgia paresthetica to his diabetes mellitus or other service-connected disability no probative weight. The Board, by contrast, affords significant probative weight to the September 2017 VA examiner's opinion. The examiner considered the Veteran's contentions, reviewed the claims file, and conducted a physical examination of the Veteran before concluding that it was less likely than not that the meralgia paresthetica was caused or aggravated by a service-connected disability. The examiner reiterated that the most common cause of meralgia paresthetica was injury, tight clothes, and/or swelling. In addition, there was no aggravation due to a service-connected disability because there was no known medical relationship in the literature between the meralgia paresthetica and diabetes mellitus or the heart. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal of this issue must therefore be denied. Right Ankle The Veteran contends that he incurred a right ankle disability in service with a continuity of problems to the present. In the alternative, he contends that the disability was caused or aggravated by a service-connected disability. As noted above, the Veteran has a current right ankle disability. The crucial question, therefore, is whether this disability was incurred in service, otherwise was caused by service, or was caused or aggravated by a service-connected disability. The Board concludes that it was not. In reaching that conclusion, the Board finds the September 2017 VA examination report of significant probative value. The examiner reviewed the claims file, interviewed the Veteran and considered his contentions, and completed a physical examination of the Veteran. Based on the foregoing, the examiner concluded that it was less likely than not that the Veteran's right ankle arthritis was caused or aggravated by a service-connected disability. The rationale was that there was no medical evidence that herbicide exposure, diabetes, or a heart disability had any relationship to the degenerative arthritis of the ankles or aggravation of the ankle disabilities. As there is no lay or medical evidence to contradict this finding, the Board finds this the most probative evidence of record as whether the right ankle arthritis was caused or aggravated by a service-connected disability. In addition, the examiner concluded that it was less likely than not that the Veteran's bilateral ankle arthritis was incurred in or caused by service. As to the rationale, the examiner noted that the Veteran's bilateral ankle degenerative arthritis was most consistent with his years of working at the post office after service. X-rays showed evidence of old trauma to the left ankle, but the Veteran claimed that his in-service injury was to the right ankle and not the left ankle. The Veteran had reported seeking treatment for the ankle during service and reaggravating the ankle in 1980 after service, but the service treatment records did not include any complaints or treatment for the right ankle and the Veteran described his condition as good prior to separation from service. Given the absence of ongoing complaints or treatment after service and the bilateral nature of the arthritis in both ankles, the examiner concluded that the Veteran's post-service job at the post office was the most likely cause of the bilateral ankle arthritis. Given the complete rationale provided by the examiner, the Board finds this opinion the most probative evidence of record. The Board acknowledges the Veteran's contentions that he injured his right ankle during service, likely in about 1972, had further episodes during service of rolling the ankle and experiencing unsteadiness, reaggravating the ankle in 1980, and otherwise having ongoing problems with the right ankle after separation from service. The Veteran is competent to report ongoing pain and stiffness in the right ankle. That said, he has reported that his right ankle injury was in 1972 and that thereafter during service he experienced feelings of rolling and unsteadiness. As the Veteran's current symptoms include pain and stiffness with extended standing or walking and not issues with ankle stability, the problems with rolling and unsteadiness clearly are not the symptoms the Veteran now contends he experienced on an ongoing basis from the 1972 injury. Thus, the Veteran has not clearly articulated what right ankle symptoms he experienced on an ongoing basis from his 1972 injury. The Veteran reported that his condition was good and did not report any problems with the right ankle prior to separation from service and has indicated only that he experienced an aggravation of the right ankle problems in 1980, or approximately 5 years after separation from service. As such, the Board finds insufficient evidence of a continuity of symptoms on which to base a grant of entitlement to service connection for right ankle arthritis despite arthritis being listed as a chronic disease under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal of this issue must therefore be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.