PERIPHERAL NERVE DISORDERS

Summary

The veteran, who served, appeals the denial of service connection for bilateral meralgia paresthetica of the lower extremities (LLE and RLE) as secondary to his service-connected lumbar spine disability, including obesity. The Board previously denied this claim, but the Court of Appeals for Veterans Claims (CAVC) remanded it for further review based on a Joint Motion for Remand (JMR). The JMR argued that the Board did not fully consider obesity as an intermediate step between the service-connected lumbar spine condition and the secondary meralgia paresthetica. The Board sought a specialist's opinion to assess the medical impact of the veteran's obesity. An orthopedic spine surgeon reviewed the file and opined that while obesity is a disposing factor for meralgia paresthetica, the veteran's lumbar spine disability did not significantly impact his ability to exercise. The examiner found less than a 50% probability that the service-connected lumbar spine disability caused the obesity, and therefore, the obesity was not a substantial factor in causing the meralgia paresthetica. The Board found this opinion highly probative, concluding that the preponderance of the evidence did not establish the necessary nexus. The veteran's representative argued the remand was not properly followed as a spine neurosurgeon was requested, not an orthopedic spine surgeon, but the Board found substantial compliance. Service connection for meralgia paresthetica as secondary to the lumbar spine disability was denied.

Rationale

Preponderance of evidence against nexus; Obesity not established as caused by service-connected lumbar spine disability; No significant lumbar spine disability preventing exercise

Full Decision Text

Citation Nr: 19121643
Decision Date: 03/25/19	Archive Date: 03/23/19

DOCKET NO. 11-01 196
DATE:	March 25, 2019

ORDER

Entitlement to service connection for meralgia paresthetica of the cutaneous nerve (meralgia paresthetica), left lower extremity (LLE), due to obesity associated with service-connected lumbar spine disability is denied.

Entitlement to service connection for meralgia paresthetica, RLE, due to obesity associated with to service-connected lumbar spine disability is denied.

FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran’s bilateral meralgia paresthetica disability of the LEs is due to or chronically worsened by the service-connected lumbar spine disability, to include obesity claimed to be associated with the lumbar spine disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for meralgia paresthetica, LLE, due to service-connected lumbar spine disability, to include obesity claimed to be associated with the lumbar spine disability, have not been met. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.310 (2018).

2. The criteria for entitlement to service connection for meralgia paresthetica, RLE, due to service-connected lumbar spine disability, to include obesity claimed to be associated with the lumbar spine disability, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In a decision dated in July 2017 (07/14/2017 BVA Decision), the Board denied the Veteran’s claim, and he appealed to the Court of Appeals for Veterans Claims (Court). In March 2018, while the appeal was pending, the Veteran, through his attorney, and the Secretary submitted a Joint Motion for Remand (JMR) to vacate in part the July 2017 Board decision and remand it for further appellate review. See 04/03/2018 CAVC, P. 2-6. In an April 2018 Order, the Court granted the JMR, vacated the Board decision in part, and remanded it to the Board for further appellate review consistent with the JMR. Id., P. 8.



Service Connection

Applicable Legal Requirements

A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995).

In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

1. Entitlement to service connection for meralgia paresthetica of the LEs 2.Entitlement to service connection for meralgia paresthetica of the RLE

In the June 2017 decision, the Board noted that a VA medical examiner determined that the Veteran had a bilateral lumbosacral radiculopathy that likely affected the L5/S1 nerve roots. In addition, the Veteran has bilateral meralgia paresthetica which is related to the lateral femoral cutaneous nerve, which typically originates from the L2 and L3 upper lumbar nerve roots. The examiner opined that meralgia paresthetica is typically related to obesity (especially weight changes), wearing pants/belt too tight, pregnancy, and diabetes. As such, the Veteran’s meralgia paresthetica would not be affected by his lumbar spine condition, which affected his lower lumbar spine and associated nerve roots. The examiner noted that the Veteran is overweight and opined that was most likely what is responsible for his meralgia paresthetica. Therefore, the examiner opined that there was less than a 50 percent probability that the service-connected lumbar spine disability aggravates the meralgia paresthetica. The Board noted further that obesity was not a valid basis on which to allow service connection. See 07/14/2017 BVA Decision, P. 5-7.

The consensus of the parties in the JMR is that the Board did
 As such, the Veteran’s meralgia paresthetica would not be affected by his lumbar spine condition, which affected his lower lumbar spine and associated nerve roots. The examiner noted that the Veteran is overweight and opined that was most likely what is responsible for his meralgia paresthetica. Therefore, the examiner opined that there was less than a 50 percent probability that the service-connected lumbar spine disability aggravates the meralgia paresthetica. The Board noted further that obesity was not a valid basis on which to allow service connection. See 07/14/2017 BVA Decision, P. 5-7.

The consensus of the parties in the JMR is that the Board did not fully apply the General Counsel’s opinion on service connection and obesity. Specifically, the June 2017 Board decision did not consider the prospect of allowing the claim on the basis of obesity as an intermediate step between a service-connected disability and a secondary disability. That was the sole basis of the JMR, as the parties specifically requested that the Board’s denial of service connection on a direct basis and as directly due to the service-connected lumbar spine disability not be disturbed. See 04/03/2018 CAVC, P. 1-2.

Discussion

The General Counsel, VA, has interpreted the relevant legislation and regulations as excluding obesity from the definition of a disability for VA purposes. See VAOPGCPREC No. 1-2017 (Jan. 6, 2017). The Secretary noted further, however, that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). The Secretary determined that the test is essentially one of proximate cause to be determined by adjudication personnel, and set forth a three-part test: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the disability in question; and (3) whether the disability would not have occurred but for obesity caused by the service-connected disability. VAOPGCPREC No. 1-2017, Para. 15.  Hence, to comply with the Court remand, the Board requested that a specialist assess the medical impact, if any, of the Veteran’s obesity. See 11/20/2018 Other.

In a November 2018 report (01/11/2019 Other), an orthopedic surgeon reviewed the claims file and noted that there are multiple disposing factors for meralgia paresthetica, including obesity. After reviewing all of the examination reports and diagnostic tests the Veteran underwent, including a June 2010 MRI and an EMG study, the examiner opined that there was no finding in either the MRI examination or EMG study to suggest any type of significant lumbar spine disability that would lead to an inability to exercise. Hence, the examiner opined that there was no evidence of a significant lumbar spine disability that would prevent the Veteran from exercising; and, that there was less than a 50 percent probability that the Veteran’s obesity is due to his claimed inability to exercise because of the lumbar spine disability. Id.

As noted, the examiner reviewed the claims file, assessed the results of the diagnostic tests, and provided a rationale for the opinion. Hence, the Board finds the opinion highly probative and affords it significant weight. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board notes that the examiner did not explicitly cite to any pertinent medical literature on the issue but finds that the reference to “multiple disposing factors” suggests that he did in fact do so. See Monzingo v. Shinseki, 26 Vet. App. 97, 106-107 (2012). Based on all of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected lumbar spine disability is the proximate cause of his obesity. Thus, while Wallin Elements 1 and 2 are shown by the evidence, the preponderance of the evidence shows that the critical Element 3, and causal or aggravating nexus, is not present.

In the Appellate Brief, the Veteran’s representative asserts that there was a failure to comply with the Board’s remand because the reviewing specialist signed the report as an orthopedic spine surgeon, whereas the remand requested that a spine neurosurgeon review the claims file
97, 106-107 (2012). Based on all of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected lumbar spine disability is the proximate cause of his obesity. Thus, while Wallin Elements 1 and 2 are shown by the evidence, the preponderance of the evidence shows that the critical Element 3, and causal or aggravating nexus, is not present.

In the Appellate Brief, the Veteran’s representative asserts that there was a failure to comply with the Board’s remand because the reviewing specialist signed the report as an orthopedic spine surgeon, whereas the remand requested that a spine neurosurgeon review the claims file. See 01/29/2019 Appellate Brief, P. 4. The Board finds no substantive distinction, and no reason to conclude that the orthopedic surgeon is less qualified to respond.  According, the Board rejects the assertion raised in the brief, and finds that there was substantial compliance with the remand.

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	W.T. Snyder