Citation Nr: 1120010	
Decision Date: 05/23/11    Archive Date: 06/06/11

DOCKET NO. 03-35 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder.

2.  Entitlement to service connection for a lumbosacral spine disorder, including as secondary to service-connected bilateral knee disabilities.

3.  Entitlement to service connection for a cervical spine disorder, including a neck fusion, and including as secondary to service-connected bilateral knee disabilities.

4.  Entitlement to service connection for a bilateral hip disorder, including as secondary to service-connected bilateral knee disabilities.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran had active service from January 1960 to January 1963 and from April 1964 to June 1981.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2002 rating decision, in regards to the lumbosacral spine disorder claim; an August 2004 rating decision addressed the bilateral hip disorder claim; and an April 2005 rating decision denied the neck disorder, including neck fusion claim, by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which denied the benefits sought on appeal. 

In April 2007, the Board returned the case for additional development. The case came before the Board again in July 2009, and was again remanded for additional development.  The case has since been returned to the Board for further appellate review.  

FINDINGS OF FACT

1.  An unappealed March 2000 rating decision continued the denial of the claim for service connection for a back disorder, and that decision is final.  

2.  The evidence associated with the claims file subsequent to the March 2000 rating decision relates to an unestablished fact necessary to substantiate the claim for a back disorder. 

3.  A back disorder, including a lumbosacral spine disorder, is not shown to be causally or etiologically related to service or to a service connected disability.  

4.  A cervical spine disorder, including neck fusion, is not shown to be causally or etiologically related to service or to a service connected disability.  

5.  A bilateral hip disorder is not shown to be causally or etiologically related to service or to a service connected disability.  



CONCLUSIONS OF LAW

1.  The evidence received since the final March 2000 rating decision, which continued the denial of service connection for a back disorder, is new and material evidence; the Veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2010). 

2.  A back disorder, including a lumbosacral spine disorder, was not incurred in or aggravated during active service, nor may arthritis be presumed to have been so incurred, and is not proximately due to or the result of a service connected disease or injury.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2010).

3.  A cervical spine disorder, including a neck fusion, was not incurred in or aggravated during active service, nor may arthritis be presumed to have been so incurred, and is not proximately due to or the result of a service connected disease or injury.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2010).

4.  A bilateral hip disorder was not incurred in or aggravated during active service, nor may arthritis be presumed to have been so incurred, and is not proximately due to or the result of a service connected disease or injury.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in April 2002, June 2004, January 2005 and June 2007.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  In this regard, the RO has obtained VA outpatient treatment records and the Veteran has submitted numerous statements.  

The Board notes that when, through no fault of the Veteran, records under the control of the Government are unavailable, VA's duty then requires that VA advise the Veteran of his right to support his claim by submitting alternate sources of evidence, including service medical personnel statements, or lay evidence, such as "buddy" affidavits or statements. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005). In the present case, the Veteran has asserted that some service treatment records may be missing in numerous statements, including August 2009, and has provided lay evidence in support of his claim, indicating actual knowledge of unavailable records and his ability to submit other evidence to support his claim. The Board further notes that all attempts possible have been made to obtain the Veteran's service treatment records.

He has also submitted private medical records and was provided an opportunity to set forth his contentions during the hearing before the BVA.  Although the Veteran was not explicitly informed at the hearing that a medical nexus opinion was necessary to support his claims, the Board notes that the Veteran was questioned as to whether any of his medical providers gave written nexus opinions in support of his claim.  Furthermore, the Veteran has demonstrated actual knowledge of the necessity of supporting medical evidence in regards to his claim. In the October 2003 VA Form 9, the Veteran reported that he had in-service back injuries that were of a chronic nature since service or due or aggravated by his service-connected bilateral knee disabilities.  Additionally, in the April 2009 and March 2011 Written Brief Presentations, the Veteran's representative essentially acknowledged the necessity of supporting medical evidence in establishing the Veteran's claim, by arguing that further nexus opinion discussion was necessary. 

Simply put, the record is clear that the Veteran understood that he did not have a positive nexus opinion of record.  That knowledge was also demonstrated by the Veteran arguing that the October 2008 VA examination report was inadequate or incorrect, and by his reporting at his hearing that he did not know if any positive nexus evidence had ever been provided in written format.  The Veteran also appears to have attempted to obtain a second medical opinion in support of his hip claim of his own accord, as indicated in a February 13, 2004 VA medical record, and in regards to his back claim via a September 2003 letter from his VA primary care physician. 

In addition, he was afforded a VA medical examination in October 2008, with an addendum in December 2009, which provided specific medical opinions pertinent to the issues on appeal. 

In the March 2011 Written Brief Presentation, the Veteran's representative argued that the VA examination was inadequate "because 'causation' differs from 'aggravation,'" and essentially contends that the VA examination did not adequately differentiate between causation and aggravation.  However, the Board notes that the December 2009 VA examiner adequately and specifically noted causation and aggravation separately in regards to the current claims. The Board further notes that the December 2009 VA examiner was the same examiner that provided the October 2008 VA examination, and was able to review the current claims and all the medical evidence of record and provide additional evidence and clarification. 

The Board further notes that the development directed by the previous Board decisions has been accomplished. In a May 2007 statement, the Veteran reported that there were no additional records to be obtained.  A September 2008 Report of Contact noted that the Veteran indicated that the American Embassy in Argentina did not have his records; he had taken those records with him and stored them in a Florida Air Force base, but that they had been lost in a hurricane.  Additionally, a VA examination was provided in October 2008, with an addendum to that examination provided in December 2009, to provide additional medical opinions. 

The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.



New and Material Evidence Claim

The Veteran seeks to reopen a claim of service connection for a back disorder. The Veteran's original claim for a back disorder was denied in an August 1963 denial. A June 1999 and later a March 2000 rating decision determined that no new and material evidence had been submitted to reopen the Veteran's claim. The Veteran did not appeal the March 2000 decision and it became a final decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

The RO appears to have reopened the Veteran's claim. However, the question of whether new and material evidence has been received to reopen a claim must be addressed by the Board regardless any RO action. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

A disallowed claim shall be reopened and reviewed, if new and material evidence is presented or secured with respect to the final claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

The evidence of record at the time of the March 2000 rating decision consisted of then available service treatment records, which indicated some complaints of, or treatment for, a back disorder. Post-service VA medical records also indicate treatment for a back disorder, but did not provide a medical nexus opinion. 

Subsequent to the March 2000 rating decision, additional VA outpatient treatment records indicate complaints of, or treatment for, a back disorder. An October 2008 VA examination also provided an opinion as to the etiology of the claim, with an additional opinion provided in December 2009. The Veteran also submitted additional statements, including lay statements, regarding an in-service injury. 

The new October 2008 VA examination and December 2009 VA opinion are new, in that they were not previously associated with the claims file. They are also material as to providing medical nexus opinion evidence in regards to the current claim. That evidence relates to an unestablished fact necessary to substantiate the service connection claim

Furthermore, additional service treatment records have also been associated with the claims file, which include complaints of, or treatment for, a back disorder. The Board notes that under some circumstances a previously denied claim can be reopened on the basis of "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim," under 38 C.F.R. § 3.156(c). 

As such, the Board finds that new and material evidence has been submitted to reopen the previously denied claim.  Accordingly, the Board finds that the claim for service connection for a back disorder is reopened. 

Service Connection - Applicable Law 
 
Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 

Service connection can also be granted when a disability is the proximate result of or due to a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additionally, the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service connected disability. Id.

Lumbosacral and Cervical Spine Claims

The Veteran contends that he developed his claimed lumbosacral and cervical spine disorders in service.

In his October 2003 VA Form 9, the Veteran reported that he was hospitalized several times in the 1970s for his back disorder and that he has had continuous back problems from 1970 until his retirement in 1981. In his May 2005 statement, he reported that his neck fusion would not have been necessary if not for falling and damaging his neck in January 1973. In his September 2005 VA Form 9, he noted that he fell approximately 2.5 feet off a porch in Thailand, which caused his neck disability.

The Veteran's September 1959 enlistment examination generally found his spine and lower extremities to be normal. An August 1961 service treatment record noted a complaint of pain over the entire back for three days. The examiner found no tenderness or muscle spasm and indicated treatment with a medcolator and liniment. 

An April 1963 application requested service connection for a 1961 back injury. An August 1963 VA examination found him to have residuals of a mild lumbosacral strain and that an x-ray found no evidence of disease or injury of the lumbar spine.

An October 1973 service treatment record noted that the Veteran had "pulled his back two years ago while running" and has had intermittent low back pain since then. The examiner noted that the back revealed marked muscle spasm; the x-ray found the lumbosacral spine to not be remarkable, and the Veteran had been placed on bed rest and was diagnosed with an acute low back strain. A November 1973 record noted a diagnosis of acute back pain. An undated abbreviated clinical record found the Veteran to have a minimal muscle sprain.

A January 1974 service treatment record noted that in January 1973 the Veteran fell directly on his head after falling off a flight of stairs, and was fine initially afterwards, but was unable to move his neck and had headaches the next day; he also reported that he now has pain in the mid-back.

An April 1977 periodic examination found his spine and lower extremities to be normal, and noted that the Veteran made various denials, including as to all other significant medical or surgical history.

A March 1980 service treatment record noted a complaint of back pain. The examiner found him to have a lower back syndrome.

The September 1980 separation examination noted the Veteran's spine was normal. The Veteran reported swollen joints, cramps in legs, broken bones, and recurrent back pain. In his report of medical history, he indicated that he had been hospitalized twice for back problems in 1973 and in 1976. He was discharged from service in June 1981.

Following service, a February 1982 VA medical record noted that the Veteran wanted to get back to marathon running, and that he last ran a 26 mile marathon in February 1981, at which time he came in second, and was a few months away from being discharged. 

A March 1982 VA medical record noted that the Veteran complained of falling off a porch landing the day before and now having stiffness to the neck and lower back. The examiner diagnosed him with an acute muscle spasm of the neck and right lower back. 

The Veteran received a VA neurological examination in April 1983, which noted that he had worked for the police, but had been relieved from that job due to his knee disabilities. He denied having any problems except for his knees. 

The Veteran's record is subsequently silent for over a decade.  A January 1998 VA medical record noted a complaint of degenerative joint disease and severe trauma to the back following a parachute accident. A February 1998 VA x-ray noted minor degenerative changes of the lumbar spine. A September 1998 VA medical record noted that a CT of the lumbosacral spine showed disc bulges at L3-4 and L4-5 and broad disc herniation.  

The Veteran received a general VA examination in December 1998, at which time he complained of pain in the knees, hips, and lower back. The examiner noted a history of hip and back pain, but found no physical abnormalities. 

Subsequent medical records generally indicated complaints of, or treatment for, chronic back and knee pain, such as in an October 1999 and January 2003 VA medical records. 

A letter from VA physician, E.K.G., also noted that the Veteran had continuing back problems since service and requested that VA reconsider his disability. The examiner noted that the Veteran had severe, disabling low back pain, which he related to his active duty.

The Veteran received another VA examination in May 2004, which included a claims file review, and in which he reported his frequent parachute jumps and in-service episodes of back pain and subsequent hospitalizations. The examiner found that she was unable to make a decision in regards to the claim, as additional records needed to be associated with the record. 

A September 2000 private MRI, from Alpha Radiology, noted that the Veteran had disc herniation at C5-6, C6-7, and C7-T1, with impingement of the nerve root.

A May 2001 private medical record, from West Florida Medical Center, noted that the Veteran's radiating pain to the right arm and elbow, which had it onset months previously, without any specific event, and that he had a longer history of some posterior neck pain.

A June 2001 private operative report, from Sacred Heart Hospital, noted that the Veteran had a herniated and degenerated cervical disc disease with right cervical radiculopathy, and had received anterior discectomies, interbody fusion, cornerstone bone graft, and anterior atlantis plate. 

In an August 2001 private medical record, from West Florida Medical Center, the Veteran reported that he had bulging discs of the lumbar spine, which were found in a 1997 VA MRI. 

The Veteran received a VA examination in October 2008, which included an extensive claims file review. The examiner noted his report of a cervical spine disorder with an onset in 1972, when he fell over a railing onto his head; the Veteran claimed to have had neck complaints since then, which included a grinding sensation in the neck and pain that last for a week after the injury. The examiner noted that the claims file indicated neck spasm after a fall on the stairs in 1974, but that there was no further treatment or evidence of a chronic condition during service. The examiner diagnosed him with cervical spine degenerative disc disease. The Veteran reported that his symptoms were progressively more frequent and severe since the original injury.

During the October 2008 VA examination, the Veteran also reported that his thoracolumbar spine was injured in 1963, in a parachute jump, when he twisted in mid air and had a hard landing. The examiner noted that the claims file showed lumbar strain in October 1973 and low back pain in March 1980, but no back condition on the September 1980 separation examination. The examiner noted that he was unable to identify a paucity of medical records to indicate missing records and that the medical documentation did not show a chronic back condition. The examiner also noted a 1998 diagnosis of herniated discs and S1 nerve root compression. 

The October 2008 VA examiner found cervical spine x-rays to show a previous surgery with surgical fixation, a normal thoracic spine, marked narrowing of the lumbar spine of the L5-S1 and a minimal narrowing of the L1-L2 space. The examiner diagnosed him with cervical degenerative disc disease of the C5-7, status post fusion, with no radiculopathy. The examiner also found the thoracolumbar spine at L1-2 and L5-S1 to have degenerative disc disease, with no radiculopathy. 

The October 2008 VA examiner noted that neck and back conditions are not uncommon in older individuals, and with individuals with increased body mass index. The examiner found that the medical record documentation failed to show a chronic condition of the neck or back during service or documentation in service to support a significant mechanism of injury to support acute disc disease. Based on the medical evidence, the examiner found the neck and spine disorders to be less likely than not caused by or related to active service and that there was no evidence to show a worsening beyond the natural progression due to service.

The October 2008 VA examiner provided an additional medical opinion in December 2009, after additional review of the claims file. The examiner found there to be no medical evidence to support chronic knee conditions in the etiology or aggravation of spine disorders. Therefore, the examiner opined that the Veteran's neck and back disorders are not caused by or related to his service-connected bilateral knee disabilities. The examiner further noted that American Medical Association guidelines noted that age, genetics and body weight were the predominant predictors of degenerative disc disease. The examiner further clarified that there was no medical evidence to support knee degeneration in the causation or aggravation of the spine conditions, and that therefore the spine degenerative disc disease was not caused by or related to his service-connected bilateral knee disabilities. 

The Veteran provided numerous personal statements and multiple pieces of lay evidence from various service members with knowledge of his in-service back pain and in-service hospitalizations. The Board accepts that the Veteran had back pain in service and was hospitalized at times due to his back pain. 

The record is clear that the Veteran currently has cervical and lumbar spine disorders. A February 1998 VA x-ray noted minor degenerative changes of the lumbar spine, and a September 1998 VA medical record noted that a CT of the lumbosacral spine that showed disc bulges at L3-4 and L4-5 and broad disc herniation. The record also indicates continued complaints of, or treatment for, lumbar and cervical spine disorders, including a June 2001 neck fusion. The current question is whether the Veteran's in-service lumbar and cervical spine injuries caused his currently claimed disorders.

The Board finds that the Veteran has not had a chronic lumbosacral spine disorder or cervical spine disorder that is related to service. The only evidence of a chronic lumbar or cervical spine disorder since service are the Veteran's own relatively recent statements of having chronic pain since that time. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board finds that the service treatment records and the post-service medical treatment records to carry far more weight of credibility and probative value that the recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Such records are more reliable, in the Board's view, than the unsupported assertions of events now several decades past, made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). 

The Board notes there were indications of treatment for spine disorders, including the Veteran's own report of medical history, during the September 1980 separation examination, in which he reported hospitalizations in 1973 and 1975. However, a November 1973 record noted only a diagnosis of an acute back pain. Furthermore, the April 1977 periodic examination, which occurred after the back complaints of record and the Veteran's reported hospitalizations, found his spine to be normal, and that the Veteran denied significant medical or surgical history. Furthermore, the September 1980 separation examination specifically found his spine to be normal. The evidence of record thus indicates that such in-service disorders were apparently of an acute and transitory nature. 

The record further indicates that the Veteran did not have a chronic spine disorder in the months prior to his discharge. A February 1982 VA medical record noted that the Veteran had a history of bilateral knee surgery, but that he wanted to get back to marathon running, and that he last ran a 26 mile marathon was in February 1981, at which time he came in second. The Veteran was discharged in June 1981. Thus the record shows that he did not have such a chronic back disorder in the months prior to service that would prevent him from running 26 miles. 

The record also notes that the Veteran had an intercurrent injury following service. Specifically, a March 1982 VA medical record noted that the Veteran complained of a fall off a porch landing the day before and now having stiffness to the neck and lower back. The examiner diagnosed him with an acute muscle spasm of the neck and right lower back, but did not note a chronic lumbar or cervical spine disorder at that time. 

The Veteran further reported that his only problems following service were with his already service-connected knees, as indicated in an April 1983 special VA neurological examination. Indeed, the Board also notes that although he filed a claim in April 1963 for a back disorder, which indicates that he knew that such a claim could be filed, he did not file another one until after his 1981 discharge from service until 1998, over a decade later. 

Given the significant amount of contemporaneous evidence of record indicating that the Veteran did not have a chronic cervical or lumbar spine disorder during or shortly following service, the Board finds the Veteran to not be credible as to his assertions of having chronic spine disorders since service.

Furthermore, there is no medical opinion evidence or medical evidence of a nexus between the current disability and the in-service injury or disease of record supporting his claims.  Although there are several VA examinations of record, the only one to provide any medical opinions as to the etiology of the Veteran's claimed lumbosacral and cervical spine disorders claims is the October 2008 VA examination, and additional December 2009 VA medical opinion.

The October 2008 VA examiner noted of in-service injuries, but that documentation failed to show a chronic neck or back condition or a significant mechanism of injury to support finding an acute disc disease during service. The examiner also noted that neck and back conditions are not uncommon in older individuals, or with individuals with increased body mass index. Based on the medical evidence, the examiner found the neck and spine disorders to be less likely than not cause by or related to active service and that there was no evidence to show a worsening beyond the natural progression of the disorder, due to military service. The examiner further noted, in December 2009, that there was no medical evidence to support the theory that chronic knee conditions in the etiology or aggravation of the spine disorders. The examiner explained that age, genetics, and body weight were the predominant predictors of degenerative disc disease. Therefore, the examiner opined that the Veteran's neck and back disorders were not caused by or related to his service-connected bilateral knee disabilities. 

The only other evidence provided as to the Veteran's claim is his belief that his current cervical and lumbar spine disorders developed due to his in-service injuries. Although he can provide testimony as to his own experiences and observations, the factual question of if his claimed disorders can be attributed to his in-service experiences and injuries is a medical question, requiring a medical expert. The Veteran is not competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); 38 C.F.R. § 3.159. He does not have the requisite special medical knowledge necessary for such opinion evidence. "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a).

The Board notes that the Veteran did not have a diagnosis of arthritis of either the cervical or lumbar spine in the year after his discharge from service, or indeed for over a decade after his discharge. As such, service connection may not be granted under 38 C.F.R. §3.309, on a presumptive basis. 

The record also does not indicate that the Veteran has had a chronic cervical or lumbar spine disorder since service and the medical evidence of record does not support finding a nexus between the current disorders and the and the in-service injuries, to support service connection on a direct basis, or the service-connected bilateral knee disabilities, to support service connection on a secondary basis. As the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claims for service connection for a lumbosacral spine disorder and a cervical spine disorder are denied. 

Bilateral Hips Claim

In his September 2005 VA Form 9, the Veteran claimed that his service-connected knee disability caused him to wear knee braces, which caused his gait to change, which created additional strain on his hips, and resulted in osteoarthritis of the hips.

The Veteran's September 1959 enlistment examination generally found his lower extremities to be normal. The service treatment records are generally silent as to any complaints of, or treatment for, a hip disorder in service. The September 1980 separation examination found that the only abnormality in regards to the lower extremities was multiple scars around the knees from surgeries.

The record is generally silent as to any complaints of, or treatment for, a hip disorder for over a decade following the Veteran's discharge from service.

The Veteran first complained of hip pain in a December 1998 general VA examination. The VA examiner noted that the Veteran had a history of hip and back pain, but that no physical abnormalities could be found at that time.

A February 2004 VA orthopedic clinic record noted that the Veteran reported a history of knee pain that has progressed to aggravate his hips to the point that he felt he had a restricted range of motion and pain with activities. 

The February 2004 VA examiner noted that the Veteran's hips revealed early loss of abduction and internal rotation, and very mild degenerative changes. The examiner found that it was very conceivable that the long history of nearly 30 years of meniscectomies and varus development of the knee joint could have led to some increased stress forces progressing through the hips, which could have led to earlier degeneration of the cartilage and development of degenerative joint disease. 

The Veteran received a VA examination in June 2004, in regards to the bilateral hip disorder claim. The examiner found the Veteran to have normal hip x-rays with no arthritic changes, and diagnosed him with normal hips and no objective evidence of a hip condition at that time.  An October 2007 VA medical record noted that the Veteran had left hip greater troch bursitis. 

The Veteran received a VA examination in October 2008, which included an extensive claims file review. The VA examiner noted that the Veteran reported that the bilateral hip disorder occurred approximately 6 years previously; he had a bilateral hip disorder, with no specific injury, and pain since 2002. The examiner noted a prior diagnosis of bilateral hip osteoarthritis, which the Veteran believed was due to his gait.  The October 2008 VA examiner found that despite the bilateral hip subjective complaints, there were no objective findings to support a diagnosis and that range of motion testing was consistent with natural aging and body habitus.

The October 2008 VA examiner provided an additional medical opinion in December 2009, after additional review of the claims file. The examiner found there to be no medical evidence to find chronic knee conditions in the etiology or aggravation of the claimed hip disorders. Therefore, the examiner opined that the hip disorders were not caused by or related to the service-connected bilateral knee disabilities. The examiner further clarified that there was no medical evidence to support knee degeneration in the causation or aggravation of the hip conditions, and that therefore the subjective hip complaints were not caused by or related to his service-connected bilateral knee disabilities. 

The Veteran contends that his bilateral hip disorder developed due to his service-connected bilateral knee disabilities. The record is conflicting as to whether the Veteran has a current hip disorder. The December 1998 general VA examination found no physical abnormalities, despite a history of hip pain. The February 2004 VA orthopedic clinic examiner noted early loss of abduction and internal rotation, and very mild degenerative changes. However, the June 2004 VA examiner found normal hip x-rays, with no arthritic changes, and diagnosed him with normal hips and no objective evidence of a hip condition at that time.

There is a single notation, in an October 2007 VA medical record, of left hip greater troch bursitis. However, subsequent records are silent as to such a disorder. 

The October 2008 VA examination found that despite the bilateral hip subjective complaints, there were no objective findings to support a diagnosis and that range of motion testing was consistent with natural aging and body habitus.

The most recent medical evidence of record, the October 2008 VA examination, does not indicate that the Veteran has a current hip disorder on either side. Additionally, of the three reviews of x-rays by VA medical providers, only one found very mild degenerative changes and the other two found no such evidence. The majority of the medical evidence thus does not support such a finding.  Furthermore, the October 2007 VA finding of left hip greater troch bursitis appears to be in regards to an acute and transitory disorder, as it was not found in later VA medical records or by the October 2008 VA examiner. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

However, even if, for the sake of argument, the Board were to find that the Veteran has a current bilateral hip disorder, the medical evidence of record does not support the Veteran's claim.  In this regard, the February 2004 VA examiner found that it was very conceivable that the Veteran's long history of nearly 30 years of having meniscectomies and varus development of the knee joint could have led to some increased stress forces progressing through the hips, that could have led to earlier degeneration of the cartilage and development of degenerative joint disease. However, the award of benefits may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the Veteran held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). The Board does not find this statement to be probative and thus is not sufficient to support the claim. Thus there is no competent medical opinion of record holding that the Veteran has a current bilateral hip disorder related to his service-connected bilateral knee disabilities. 

In contrast, the October 2008 VA examiner included the most complete review of the claim. The examiner opinion included noting the Veteran's argument of gait change due to his service-connected bilateral knee disabilities, a review of the claims file, and an examination of him. However, the examiner determined that despite the bilateral hip subjective complaints, there were no objective findings to support a diagnosis and that range of motion testing was consistent with natural aging and body habitus. 

Additionally, in December 2009, the October 2008 VA examiner found no medical evidence to support finding the chronic knee conditions in the etiology or aggravation of the claimed hip disorders. Therefore, the examiner opined that the claimed hip disorders were not caused by or related to his service-connected bilateral knee disabilities. The examiner further clarified that there was no medical evidence to support knee degeneration in the causation or aggravation of the hip conditions, and that therefore the subjective hip complaints were not caused by or related to his service-connected bilateral knee disabilities. Given the extent of record review and analysis provided in forming her opinions by the October 2008 VA examiner, the Board finds her findings to be the most probative as to the Veteran's claim.

The record does not indicate that the Veteran made any complaints of, or received treatment for, a hip disorder or injury in service or for years following his service, and no medical evidence has related the claimed hip disorders to service. The Veteran has also reported that his claimed hip disorders are of a more recent advent, and did not develop in service, but rather due to his service-connected bilateral knee disabilities.  

Furthermore, the majority of the medical evidence of record, and the most probative evidence of record, the findings of the October 2008 VA examiner, do not indicate that the Veteran has a current bilateral hip disorder.  Even if such a disorder were found, the most probative medical evidence of record also determined that the subjective hip complaints were not due to the service-connected bilateral knee disabilities. 

The record thus does not indicate that the Veteran has a current hip disorder that started in service, was caused by service, or was caused or aggravated by his service-connected bilateral knee disabilities.  

The only other evidence provided as to the Veteran's claim is his belief that his bilateral hip disorder developed due to his service-connected bilateral knee disabilities. Although he can provide testimony as to his own experiences and observations, the factual question of if his disorder can be attributed to his service-connected bilateral knee disabilities is a medical question, requiring a medical expert. The Veteran is not competent to render such an opinion. Espiritu, 2 Vet. App. at 495; 38 C.F.R. § 3.159. He does not have the requisite special medical knowledge necessary for such opinion evidence. 

As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. The Veteran's claim for service connection for a bilateral hip disorder, including as secondary to the service-connected bilateral knee disabilities, is denied. 


ORDER

New and material evidence having been submitted, the Veteran's request to reopen the claim for entitlement to service connection a back disorder is granted.  The appeal is granted to this extent only.  

Service connection for lumbosacral spine disorder, including as secondary to service-connected bilateral knee disabilities, is denied.

Service connection for a cervical spine disorder, including a neck fusion, and including as secondary to service-connected bilateral knee disabilities, is denied.

Service connection for a bilateral hip disorder, including as secondary to service-connected bilateral knee disabilities, is denied.


____________________________________________
RAYMOND F. FERNER 
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs