Citation Nr: 23048044 Decision Date: 08/31/23 Archive Date: 08/31/23 DOCKET NO. 18-05 795 DATE: August 31, 2023 ORDER Entitlement to service connection for residuals of a right leg soft tissue injury is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has had a right leg soft tissue injury, or any residuals related thereto, at any time during or approximate to the pendency of the claim that are related to service or an injury or disease incurred during active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a right leg soft tissue injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to February 1984 with additional service in the Reserves. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this case was previously before the Board for a hearing in May 2021 before a Veterans' Law Judge (VLJ) who is no longer at the Board. A transcript of the hearing has been associated with the claims file and reviewed. The Board provided a letter to the Veteran in July 2022 offering the option of a new hearing before a different VLJ and stated that if no response was received, the Board would proceed without another hearing. The Veteran responded by declining another Board hearing and requesting that the case be considered on the evidence of record. Following the May 2021 hearing, the Board remanded this claim in August 2021 and November 2022 for additional development. The Board finds substantial compliance with the previous remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). Entitlement to service connection for residuals of a right leg soft tissue injury is denied. The Veteran contends that he has a right leg soft tissue injury that is related to an injury during active duty for training (ACDUTRA). The Board finds service connection is not warranted. Generally, 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). Only "veterans" are entitled to VA compensation. 38 U.S.C. § 1131. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101; 38 C.F.R. § 3.1. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty; or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101, 106; 38 C.F.R. § 3.6. The Veteran contends he joined the "Inactive Ready Reserve (IRR)" from February 1984 to February 1987, and in September 1985 (although one statement indicated September 1984) he was called to duty and during this time he injured his right leg playing basketball and was hospitalized for 7 to 10 days. In support of his claim, he submitted Orders for ACDUTRA for 15 days beginning August 17, 1985. For this period to be considered "active service," he must have incurred an injury or disease in the line of duty from that period. Therefore, the Board has considered whether the Veteran's claimed right leg soft tissue injury is related to that period of ACDUTRA. In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal"). Turning to the relevant evidence of record, upon entrance to active duty in 1976, the Veteran's lower extremities were clinically evaluated as normal. In the corresponding report of medical history, he denied experiencing any bone, joint, or other deformity or anything related to his lower extremities. During service, he completed an examination in June 1979 wherein his lower extremities were again clinically evaluated as normal. In January 1981, his service treatment records (STRs) noted a soft tissue injury in the right lower leg secondary to trauma. The record notes that the Veteran had tenderness along the lower part of his tibia with swelling after an injury three days prior when a heavy metal instrument fell on it in the field. In an April 1981 examination, the Veteran's lower extremities were again clinically evaluated as normal. In a February 1984 report of medical history, he denied experiencing any bone, joint, or other deformity or anything related to his lower extremities. During his period of ACDUTRA, the record does contain a hospitalization report indicating the Veteran was hospitalized from August 28, 1985, to August 31, 1985. At that time, the report indicates the Veteran was on reserve training and presented to the hospital with diminished sensation via pinprick on the right lower extremity. His hospital course mainly focused on treating the sensory loss involving approximately T8 or 9 of the spine as well as weakness of the right leg. It was noted that the Veteran noticed his right leg giving way before he was on reserve training in the first portion of July as he was working as a corrections officer (as a civilian). He noted he would catch himself on the stairs and noted the decreased right leg sensation and weakness. For unclear reasons, the Veteran was brought in during his reserves training. The hospitalization report did not reference any specific trauma at that time. It is noteworthy that these records appear to focus on a spine condition and not really a separate right lower extremity condition. The Veteran is already service-connected for degenerative arthritis of the thoracolumbar spine with associated right lower extremity radiculopathy of both the sciatic and femoral nerves. The Board finds the persuasive weight of the evidence does not support a separate right lower extremity disability that is not already compensated by his service-connected right lower extremity disabilities. In other words, the Board finds he does not have a separate "right leg soft tissue" disability or residuals of an injury not already compensated by his already service-connected radiculopathy ratings. As such, his appeal must be denied. To that end, aside from the hospitalization records, after service, treatment records largely focus on right leg paresthesia or weakness associated with his already service-connected radiculopathy disabilities. Specifically, treatment records in 2000 reference complaints of right leg parasthesia, right leg weakness, incoordination, and stumbling. Notably, he also complained of weakness in the right hand. He was assessed with cervical spinal stenosis. He underwent a cervical laminectomy in March 2000. In his discharge summary, the provider noted that the Veteran had presented with trouble walking and right leg weakness with a history dating back to 1985 while playing basketball when he fell after his right leg gave way. Ever since the fall, the Veteran expressed that he had continued trouble with temperature sensation in the right leg. Nearly five months prior to admission, he began experiencing weakness in the right leg. In follow-up notes after his cervical spine decompression, the Veteran reported that his temperature sensation has normalized. He endorsed symptoms related to his right hand and his right leg feels "somewhat heavy." While his weakness in the right leg was graded the same, he was noted to no longer have a spastic gait. The Veteran completed a neurological evaluation in March 2000 where he presented with increased difficulty walking, persistent sensory dysesthesia affecting his right leg, and recently some electrical shocking sensation involving the right and left leg and right arm. The Veteran communicated that in 1985 while he was playing basketball during Reserves, his right leg suddenly gave-way and the Veteran was unable to walk. He was taken to the hospital where he spent 10 days being evaluated. No treatment was instituted, and he was discharged to home. The Veteran stated that it took "some time" to improve and regain strength to his right leg. He reported that his overall symptoms, including numbness involving the right side, never went away and he was left with decreased and altered sensation. For the last 3-4 months, he noticed increased weakness in the right leg and on several occasions, he missed steps while walking or stumbled. He feels off-balance intermittently, and on several occasions, his right leg gives way. The impression was that the Veteran's constellation of symptoms was "suspicious for either lower cervical spine or upper thoracic spine central cord lesion." The provider wanted to rule out syringomyelia and demyelinating disease. Further imaging and electrical studies were ordered. A non-VA provider opined in August 2000 that the Veteran had a service-related injury based on the history the Veteran presented. He reasoned that it was most likely at that time that the Veteran contused his spinal cord in the setting of pre-existing congenital cervical stenosis because his symptoms were consistent with that. Over time, "some additional acquired spinal stenosis led to the spinal cord problems" that he demonstrated prompting a cervical decompressive laminectomy in March 2000. In September 2000, a non-VA provider noted that the Veteran was initially evaluated in February 2000 with complaints of incoordination and stumbling, including right-sided upper and lower limb weakness. At that time, he gave a history of having a back injury in October 1995 prompting an evaluation without treatment. He followed-up in 2000 at which time he was sent to a neurologist and had an MRI scan ordered. He was found to have cervical stenosis. In a November 2000 statement, the Veteran reported that he sustained an injury in September 1985 while on ACDUTRA. He explained that his right leg gave way while playing basketball. He was taken to the hospital and spent 7-10 days there completing testing. He left the hospital without diagnosis but explained that he continued to not have feelings on the right side. An MRI of the brain was completed in February 2010 which was unremarkable. An MRI of the cervical spine was ordered due to transient right lower extremity weakness. Results revealed hypertrophy and foraminal stenosis. Treatment records in 2014 note that the Veteran had a history of neck surgery for cervical myelopathy with ongoing right-sided weakness, numbness, and tingling. He endorsed onset of right-sided weakness and intermittent numbness in 1985 after playing basketball. He reported that symptoms have persisted and progressed in the late 1990s. In 2003, he was noted to have myelopathic symptoms. An MRI scan of the cervical spine revealed multilevel severe cervical stenosis. He then had a laminectomy in 2007 following which he stated that his right-sided symptoms have been stable but not resolved. In 2014, however, the symptoms have worsened and include his upper and lower right extremities. Electromyography results were "probably within normal limits." The increase insertional activity in the cervical paraspinal muscles, however, raised the possibility of a mild degree of multilevel right cervical radiculopathy. The provider noted that he "appeared to have cervical myeloradiculopathy." In October 2014, the Veteran submitted another statement that on August 28, 1985, after a day of training, he was playing basketball. When he went for a rebound and landed, his right leg gave out causing him to fall. When he tried to stand, he fell again. He was then taken to the hospital and admitted from August 28, 1985, to August 30, 1985. He said that following discharge, he was in "severe pain" and needed assistance carrying his luggage. The Veteran testified in May 2021 that he did not recall the January 1981 injury. He did recall, however, the August 1985 injury when he was playing basketball and his right leg gave way causing him to fall. He endorsed experiencing loss of sensation in the right leg and weakness at that time and was admitted to the hospital. He stated he did not have a diagnosis at the time of discharge. He endorsed pain after discharge. He then testified that in 1999 or 2000, his right leg had a tendency of "giving way" and he was unable to run. He endorsed seeking medical treatment, including cervical spine surgery, which worsened his condition. He testified that the symptoms he experienced in his right leg have been continuous since the 1985 injury. He acknowledged he had post-service injuries but his symptoms pertaining to the right leg existed prior to that. He testified that he believes his falls after service are related to his right leg disability for which he is seeking service connection. The Veteran was afforded a peripheral nerves disability benefits questionnaire (DBQ) in January 2022 during which he endorsed symptom onset in 1984-1985 when his right leg gave way resulting in a hospital admission. He was found to have a diagnosis of right lower extremity radiculopathy. In the corresponding VA opinion, the examiner opined that the Veteran's claimed right leg soft tissue injury was less likely than not related to service. The examiner reasoned that during service, the right leg soft tissue injury was acute only and there was no evidence of chronicity within the medical records. Symptoms reported were subjective only and a nexus has not been established. The examiner further reasoned that the Veteran does not have a diagnosis of a right leg soft tissue injury. The examiner also opined that the Veteran's claimed pre-existing right leg soft tissue injury was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that while temporary aggravation is plausible, there is no evidence of permanent aggravation of a pre-existing right leg soft tissue injury. In a May 2023 knee and lower leg DBQ, the Veteran was found not to have a current diagnosis. The Veteran stated that the condition began in 1985 and his initial symptoms were an inability to walk or feel on the right side. Currently, his symptoms were noted to include electric shock, constant pulling and tugging, numbness, weakness, and decreased sensation. In the associated May 2023 VA opinion, the examiner opined that the Veteran's claimed condition was less likely than not related to service. The examiner reasoned that the Veteran's reported symptoms pertain to right lower extremity radiculopathy and not a soft tissue injury. There is no swelling or tenderness of any of the muscles or tendons of the right leg. There were no objective findings to warrant a diagnosis for the claimed right leg soft tissue injury. The examiner specifically considered the 1984 report of medical history as well as the hospital records from the 1985 admission. Upon examination, however, the examiner explained that there were no objective findings for a soft tissue injury to the right leg or any residuals. The examiner also opined that there are no current residuals from the prior soft tissue injury of the right leg noted in 1981. Rather, his symptoms, including electric shock, constant pulling and tugging, numbness, weakness, and decreased sensation all point to the diagnosis of right lower extremity radiculopathy. The most common soft tissue injuries are muscles, tendons, and ligaments which often occurs during sports and exercise activities but sometimes even simple activities. As an aside, the Board notes that this claim was remanded in November 2022 in order for VA to attempt to obtain authorizations for private treatment records cited by the Veteran. Accordingly, the RO sent the Veteran a development letter in November 2022 requesting that the Veteran complete and return the enclosed VA Form 21-4142a, General Release for Medical Provider Information to the VA, and a VA Form 21-4121, Authorization to Disclose Information to the VA. The Veteran, however, did not respond. The development letter was not returned to the RO as undeliverable. The Court has held that "the duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, if a Veteran wishes help, "he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Id. Further, a Veteran has an obligation to cooperate in the development of evidence pertaining to his claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 181 (2009). Thus, the Board will proceed to adjudication here based on the evidence of record as it stands. Again, during the pendency of this appeal, the Veteran was granted service-connection for degenerative arthritis to include degenerative disc disease of the thoracolumbar spine with associated bilateral lower extremity radiculopathy of both the femoral and sciatic nerves. The Board finds he has no separate right lower extremity disability that is not already compensated by these disability awards. Aside from his right lower extremity radiculopathy of the sciatic and femoral nerves, which service-connection has already been granted, the Board concludes that the Veteran does not have any other right lower extremity disability, to include additional residual(s) of the described soft tissue injury in the right leg, 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). The Board finds the January 2022 and May 2023 VA examinations include consideration of the Veteran's medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered together and with the entire evidence of record, the Board finds the examination reports adequate for adjudication of the Veteran's service connection claim because they are based upon an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board finds probative here both the January 2022 and May 2023 VA examiners opinions that the Veteran does not have a right leg soft tissue disability. This is corroborated by the medical evidence of record which lacks any reference to a right leg soft tissue injury. Furthermore, upon examination during the May 2023 VA examination, there was no swelling or tenderness of any of the muscles or tendons of the right leg. It is not reasonably in dispute that the Veteran currently experiences a variety of right lower extremity symptoms, however, the Board finds probative the May 2023 VA examiner's opinion that his endorsed symptoms are related to his now service-connected radiculopathy of the right lower extremity. The Board acknowledges that the Veteran had a documented right leg soft tissue injury during service in January 1981. The Board finds probative the VA examiners opinions that this documented injury was acute only and resolved without residuals. Indeed, this is consistent with the contemporaneous medical evidence of record. Significantly, only months later in April 1981, the Veteran's lower extremities were clinically evaluated as normal. Furthermore, in the February 1984 report of medical history, he denied experiencing any bone, joint, or other deformity or anything related to his lower extremities. It stands to reason that if the Veteran was experiencing ongoing symptoms related to the 1981 soft tissue injury, such symptoms would have been documented in subsequent STRs, the 1981 examination, and / or self-reported in the February 1984 report of medical history. The Board notes the Veteran did not recall the 1981 injury during the hearing, but also acknowledges that he endorsed problems with memory. Relying upon the contemporaneous evidence of record, however, the Board finds the Veteran did not have any residuals related to this 1981 injury. The Board finds probative the VA examiners opinion that this was acute only. The Board also acknowledges that the Veteran has newly conceded participation in a toxic exposure risk activity (TERA). While there are circumstances in which a specific TERA examination is required, the Board finds an exception applies here. That is, the Veteran has consistently contended his right leg soft tissue injury was due to physical trauma - either a 1981 soft tissue injury noted in service after a heavy metal instrument fell on his right leg in the field or a 1985 fall while playing basketball. As noted in the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), there is a lack of scientific evidence indicating an association between such injuries and toxic exposure. Based on the evidence of record, the Board finds remand for a specific TERA examination is not necessary here. Regarding the August 1985 contended injury while playing basketball during ACDUTRA, the Board first reiterates that service connection can only be granted if the Veteran incurred an injury or disease in the line of duty from that period. Significantly here, while the Veteran has consistently endorsed falling onto his right leg and side after rebounding for a basketball in August 1985 resulting in right leg weakness and numbness, contemporaneous treatment records reveal the Veteran had been experiencing the same symptoms prior to his period of ACDUTRA thereby precluding an award of service connection here. To this point, the Board finds more probative the contemporaneous August 1985 treatment records over the Veteran's statements made in connection with his claim for benefits. Most significant, treatment records in August 1985 note that the Veteran's right leg first gave way while climbing stairs at the start of July 1985 while working as a civilian corrections officer. The Veteran then explained that he noticed an increased frequency in his leg giving way when bracing to change directions, climb, and run. Significantly, he also noticed "about the same time" a decreased sensation to light touch in his right leg. The Board finds, based on the contemporaneous medical evidence of record, that the Veteran's reports of weakness and decreased sensation actually had an onset prior to the August 1985 hospital admission. Regardless, however, the Veteran has been found not to have a right leg soft tissue injury and instead his symptoms have been attributed to his radiculopathy. While the Veteran believes he has a current right leg soft tissue injury that is related to service, he is not competent to provide a diagnosis or nexus opinion in this case. The issues are medically complex, as they require specialized medical knowledge, training, and testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the VA opinions of record. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a right leg soft tissue injury is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.