Citation Nr: 1309629 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 05-20 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hip disability to include as secondary to service-connected right ankle disability and a disability of the lumbar spine. 2. Entitlement to service connection for a left knee disability to include as secondary to service-connected right ankle disability and a disability of the lumbar spine. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1981 to August 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Veteran appeared at hearing before one of the Veterans Law Judges who have signed this decision. In August 2008 and in March 2009, the Board remanded the claims for further development. In July 2011 the Veteran appeared at a hearing before another of the undersigned Veterans Law Judges. In April 2012 the Board remanded the case for further development. When two hearings have been held by different Veterans Law Judges covering the same claims, the law requires that the Board form a panel of not fewer than three Veterans Law Judges to decide the claims. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. Therefore a panel of three Veterans Law Judges was formed to decide the claims remanded by Board in April 2012. FINDINGS OF FACT 1. The current bilateral hip strain did not manifest in service, the current bilateral hip strain is unrelated to an injury or event in service, and the current bilateral hip strain was not caused by or made worse by the service-connected residuals of a fracture of right ankle and degenerative disc disease of the lumbar spine. 2. The current left knee strain is unrelated to an injury or event in service, including a left knee sprain, and the current left knee strain is not caused by or made worse by the service-connected residuals of a fracture of the right ankle and degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hip strain have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). 2. The criteria for service connection for a left ankle strain have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters dated between June 2004 and April 2011. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, and private and VA medical records. The Veteran was afforded VA examinations in May 2010 and November 2012. The Board has reviewed the examination reports. As the examination reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In the hearings in May 2008 and July 2011, the Veteran was represented and the representative and the respective Veterans Law Judge asked questions to ascertain the extent of any in-service event or injury and whether the Appellant's current disabilities were related to service or service-connected disability. No additional evidence that might have been overlooked to substantiate the claims was identified by the Veteran. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Service Connection The Veteran is claiming service connection for a bilateral hip disability and for a left knee disability to include as secondary to service-connected right ankle disability and a disability of the lumbar spine. Facts Service connection is in effect for residuals of a fracture of right ankle with degenerative arthritis and for degenerative disc disease of the lumbar spine. The service treatment records show that in July 1981 the Veteran suffered a nondisplaced fracture of the right distal tibia. In July 1983, the Veteran turned her left ankle and knee while roller skating and the assessment was first degree sprain. There are no other entries, pertaining to the left knee. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a right or left hip abnormality. The Veteran was offered an examination prior to separation from service, but she declined. After service on VA examination in September 1983, the Veteran complained of left knee pain and weakness. The VA examiner noted that in July 1983 the Veteran injured her knee when she fell while roller skating and that she still had pain with activity. The pertinent findings were subjective pain with movement and no swelling, inflammation, fluid, effusion, or laxity of the ligaments. X-rays of the left knee showed no evidence of fracture, dislocation, or other significant abnormality. The diagnosis was left knee sprain by history. VA records show that in April 2002 history included a left knee arthroscopy. In August 2003, the Veteran was seen in the pain clinic for right ankle pain. Her secondary complaints included right hip pain and left knee pain. History included left knee arthroscopy in 1987. In August 2004, X-rays of the left knee showed no arthritic change and no other abnormality. In November 2004 on VA examination for the right ankle, the Veteran complained of pain each in hip and knee. In March 2005, history included a fall off a step in 1983 resulting in strain of the left knee and ankle, a fall while skiing in December 1985, resulting in a left knee sprain, a left knee sprain in 1986, and a left knee arthroscopy with lateral release in October 1987. In a statement in June 2005, the Veteran stated that her abnormal gait due to her right ankle disability contributed to her painful hips and left knee. In June 2005, the Social Security Administration determined that the Veteran was entitled to a trial work period to test her ability to work and that she met the requirements for disability insured status. The disabilities considered involved the right ankle and right shoulder. VA records show that in August 2005 a MRI showed no left knee abnormality. In December 2005, the Veteran slipped and fell and hit her left knee. X-rays showed no left knee fracture, dislocation, or joint effusion. The impression was left knee pain and strain. In May 2008, the Veteran testified that her bilateral hip and left knee conditions were caused by her right ankle disability. In a statement in June 2008, S.E.J., MD, evaluated the Veteran for complaints of painful hips and left knee after her ankle fracture in 1981, which had resulted in an abnormal gait. The private physician expressed the opinion that the ankle injury was as likely as not to have caused problems with the Veteran's hips and left knee. On VA examination in May 2010, the Veteran gave a history that she had fallen in service in 1983, injuring her left ankle and left knee. She also had a ski accident in late 1980s, after which she had persistent knee pain and surgery. She stated that she had several falls since that time including a fall at work in October 2005. The Veteran complained of occasional popping of the left knee and constant pain in the left knee on standing. The Veteran also gave a history of bilateral hip pain since 2003, though primarily involving the left hip, which she attributed to some extent to an MRI in 2002 when during the MRI she experienced a jarring motion of the back and hip. The diagnoses were bilateral hip strain and left knee strain. The VA examiner expressed the opinion that the current hip and left knee were less likely than not related to the Veteran's period of active service and it was less likely than not related to the service-connected right ankle disability. X-rays showed no acute process is in the right hip or left hip. In July 2011, the Veteran testified that her bilateral hip and left knee disabilities were secondary to the service connected residuals of a fracture of the right ankle. She testified that since breaking her right ankle she has had an odd gait, which worsened after April 2002 when she sprained her ankle and was put in a walking boot. She testified that the right ankle condition was stressing her hips and left knee. On VA examination of the hips and left knee in July 2012, the diagnoses were bilateral hip strain and left knee strain with arthroscopy. The VA examiner expressed the opinion that the conditions of the hips and knees were less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities. The VA examiner stated that the Veteran had had a significant skiing injury and underwent left knee arthroscopy secondary to the skiing accident that was more than likely the cause of her current left knee condition. As for the hips, the VA examiner stated that there did not appear to be a nexus between the bilateral hip condition and the service-connected right ankle or lumbar spine disabilities. On VA examination in November 2012, the Veteran gave a history of injury to the left knee during service in 1983 when she was skating. She stated she also injured the left knee while skiing in 1985 and 1986 and that she had an arthroscopy of the left knee in 1988. X-rays showed that the Veteran did not have degenerative or traumatic arthritis. The diagnosis was strain left knee strain with arthroscopy. The Veteran also gave a history of falling from a horse in 1983 after service, landing on the left hip and face. She stated that she had no problems until 1997, when she was put in a walking boot for her ankle, which caused an abnormal gait. The diagnosis was bilateral hip strain. The VA examiner expressed the opinion that the knee and hips were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness, and that the left knee strain and bilateral hip strain were not caused by or aggravated by the service-connected right ankle disability or degenerative disc disease of the lumbar spine. Analysis During service the Veteran had a left knee sprain on one occasion one month before she was separated from service, which was also noted by history on the initial VA examination in September 1983. The service treatment records do not contain any compliant or finding of a hip injury or hip strain. The Veteran declined an examination prior to separation from service. Because strain is not a chronic disease enumerated in the regulation listing named chronic diseases, 38 C.F.R. § 3.309(a), the theories of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a)). Although chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, service connection may still be established for a disability initially diagnosed after service under 38 C.F.R. § 3.303(d), when all of the evidence, including that pertinent to service, shows that the disability as incurred in service or on a secondary basis under 38 C.F.R. § 3.310 for a disability that is caused by or aggravated by a service-connected disability. The Veteran is competent to describe symptoms of bilateral hip pain after service and left knee pain since service. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A strain, involving a muscle or tendon injury, is not a condition under case law that has been found to be capable of lay observation. And a strain is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation. Where, as here, there is a question of the presence or a diagnosis of a disability, which is not capable of lay observation by case law, and the disability is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's lay statements and testimony are offered as proof of the presence of the current disabilities either in service or since service, the Veteran's lay statements and testimony are not competent evidence. That is the Veteran's lay statements and testimony are not to be considered as competent evidence favorable to the claims on the question of the presence or diagnosis of bilateral hip strain before 2003, when the Veteran first complained of hip pain, or left knee strain, following post-service intercurrent injuries in 1985 and in 1986, resulting in an arthroscopy in 1987 or 1988 by history provided by the Veteran. And no factual foundation has been established to show that the Veteran as a lay person is otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of bilateral hip strain or left knee strain. The Veteran asserts that her bilateral hip and left knee disabilities are secondary to her service-connected right ankle disability and disability of the lumbar spine. She testified that her service-connected right ankle disability caused an odd gait that worsened in April 2002 after a sprain and stressed her hips and left knee. To the extent the Veteran asserts a causal relationship between the current bilateral hip strain and left knee strain since a right ankle injury in service or caused by or aggravated by the service-connected right ankle disability and disability of the lumbar spine, the assertions constitute the Veteran's opinion. While the Veteran as a lay person is competent to offer an opinion on a simple medical condition, Davidson, 581 F.3d 1316, a causal relationship or nexus between the current bilateral hip strain and left knee strain and a right ankle injury in service or on a secondary basis, that is, the disabilities were caused by or aggravated by the service-connected right ankle disability and disability of the lumbar spine is not a simple medical question because, such a relationship cannot be determined as an inference based on personal observation without specialized education, training, or experience. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current bilateral hip strain and left knee strain and a right ankle injury in service or on a secondary basis, that is, the disabilities were caused by or aggravated by the service-connected right ankle disability and disability of the lumbar spine. For this reason, the Veteran's lay opinion is not competent evidence on a causal relationship or nexus between the current bilateral hip strain and left knee strain and a right ankle injury in service or on a secondary basis, that is, the disabilities were caused by or aggravated by the service-connected right ankle disability and disability of the lumbar spine. Since the Veteran's lay opinion is not competent evidence, the Veteran's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim under either 38 C.F.R. § 3.303(d) (disability first diagnosed after service) or 38 C.F.R. 3.310 (secondary service connection). As the Veteran's statements are not competent evidence, the Board need not address credibility. Medical Evidence As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, including evidence of left knee sprain in service, and to secondary service connection, applying 38 C.F.R. § 3.303(d) and 38 C.F.R. § 3.310, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). As for the Veteran describing a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional, the medical evidence consists of a medical opinion in favor of the claims by a private physician and medical opinions against the claims by VA examiners. The private physician and the VA examiners are qualified through education, training, or experience to diagnose and to offer a medical opinion. The medical evidence in favor of the claim is the opinion of a private physician. The private physician expressed the opinion that the right ankle injury was as likely as not to have caused problems with the Veteran's hips and left knee. To the extent the opinion associates the left knee problem to the service-connected right ankle disability, the opinion is not persuasive, because the opinion does not account for post-service intercurrent left knee strains in 1985 and in 1986, resulting in an arthroscopy in 1987 or 1988. As for the opinions of the VA examiners, in May 2010, the VA examiner considered the Veteran's history of bilateral hip pain since 2003. The VA examiner expressed the opinion that the current bilateral hip strain was less likely than not related to the Veteran's period of active service and it was less likely than not related to the service-connected right ankle disability as X-rays showed no acute process is in the right hip or left hip. The VA examiner also considered the Veteran's history of a left knee injury in service and as well as the intercurrent knee injuries in the 1980s, followed by persistent knee pain and surgery. The VA examiner expressed the opinion that the left knee strain was less likely than not related to the Veteran's period of active service and it was less likely than not related to the service-connected right ankle disability. On VA examination July 2012, the VA examiner expressed the opinion that the conditions of the hips and knees were less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities. The VA examiner stated that the Veteran had had a significant skiing injury and underwent left knee arthroscopy secondary to the skiing accident that was more than likely the cause of her current left knee condition. As for the hips, the VA examiner stated that there did not appear to be a nexus between the bilateral hip condition and the service-connected right ankle or lumbar spine disabilities. On VA examination in November 2012, the VA examiner expressed the opinion that the hips and knee were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury or event and that the bilateral hip strain and left knee strain were not caused by or aggravated by the service-connected right ankle disability or degenerative disc disease of the lumbar spine. The VA examiner explained that the conclusion rendered in the opinion was based on the Veteran's history, the review of the Veteran's file, the physical examination, and the imaging studies of the hips and left knee. The Board finds that the opinion of the VA examiner in November 2012 the most persuasive evidence, which opposes, rather than supports, the claims and the VA's examiner's medical opinion outweighs the private medical opinion. On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claims of service connection for the current bilateral hip strain and left knee strain on a direct and secondary basis. 38 U.S.C.A. § 1131 and 38 C.F.R. §§ 3.303(d) and 3.310. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). (The Order follows on the next page.). ORDER Service connection for bilateral hip strain to include as secondary to service-connected right ankle disability and a disability of the lumbar spine is denied. Service connection for a left knee strain to include as secondary to service-connected right ankle disability and a disability of the lumbar spine is denied. ________________________________ ________________________________ Mark Hindin Ronald W. Scholz Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs