Citation Nr: 1318642 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-06 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left hip disability. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a left ankle disability. 7. Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to February 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from June 2006 and May 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In the June 2006 decision, the RO granted service connection for hearing loss and tinnitus, and denied service connection for a low back disability and a left leg condition. The Veteran only appealed that determination with regard to the denials of service connection for disabilities of the low back and left leg. While the appeal was pending, it became apparent that the Veteran's claimed "left leg" disability was, in fact, a left hip disability. As such, the RO recharacterized the claimed disability on the Statement of the Case (SOC), which was issued in February 2008. The Veteran perfected his appeal as to the issues of service connection for a low back disability and a left hip disability with the submission of a timely VA Form 9, substantive appeal, received at the RO in February 2008. Meanwhile, the Veteran filed additional claims of service connection in November 2006. Those claims included entitlement to service connection for diabetes mellitus, hypertension, PTSD, depression, and disabilities of both hips, knees and ankles, as well as a claim for an increased (compensable) rating for the service-connected hearing loss. In February 2008, the Veteran amended his claim to include a claim of service connection for residuals of a cold injury. The May 2008 rating decision denied the Veteran's claims. The Veteran's Notice of Disagreement (NOD) with that determination was received at the RO in June 2008. The RO issued an SOC in June 2010, and also issued a rating decision in June 2010 that granted service connection for a right ankle disability. The Veteran perfected his appeal as to the remaining issues with the submission of a VA Form 9, substantive appeal, received at the RO in August 2010. During the appeal period, the Veteran appeared for two personal hearings. At the first hearing , in November 2007, the Veteran testified before a Decision Review Officer (DRO) at the RO. Then, in February 2011, the Veteran testified at a second personal hearing before the undersigned Veterans Law Judge sitting at the RO. Transcripts of the testimony from both hearings are associated with the claims file. At the February 2011 hearing before the undersigned, the Veteran testified that he intended to withdraw from appellate status the issues of entitlement to service connection for PTSD, diabetes mellitus, hypertension, and entitlement to a compensable rating for the service-connected hearing loss. A written statement to this effect has been associated with the claims file. Therefore, the Board dismissed these issues as withdrawn in a June 2011 decision. In that decision, the Board also denied the Veteran's claim of service connection for residuals of a cold injury, and remanded the other issue back to the RO for additional development of the record. The RO originally adjudicated the Veteran's claim for a psychiatric disorder as entitlement to service connection for depression in the May 2008 rating decision. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the issue is recharacterized as shown on the first page of this decision and it is acknowledged that such description includes a claim of entitlement to service connection for all currently diagnosed acquired psychiatric disorders. FINDINGS OF FACT 1. The Veteran's degenerative disc disease (DDD) of the lumbar spine was first shown many years after discharge from service, and is not related to any injury, disease, or other event in service, including the undocumented fall from a Scorpion Vehicle in Korea. 2. The Veteran's severe degenerative joint disease (DJD) of the left hip with prior fracture was first shown many years after discharge from service, and is not related to any injury, disease, or other event in service, including the undocumented fall from a Scorpion Vehicle in Korea. 3. The Veteran's orthopedic disabilities of the right hip, right and left knees, and left ankle were first shown many years after separation from service, and are more likely than not, secondary to the non-service-connected low back and left hip disabilities. 4. The Veteran's symptoms of depression do not meet the full Axis I diagnosis of Major depressive disorder; and any depression or other psychiatric symptomatology is more likely than not secondary to the nonservice-connected low back and left hip. CONCLUSIONS OF LAW 1. The Veteran's degenerative disc disease of the lumbar spine, was not incurred in, or caused or aggravated by, his military service, and degenerative disc disease may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran's left hip degenerative joint disease, status post fracture, was not incurred in, or caused or aggravated by, his military service, and degenerative joint disease of the left hip may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The Veteran's orthopedic disabilities of the right hip, both knees, and right ankle were not incurred in or caused or aggravated by, active service and they are not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.310 (2012). 4. An acquired psychiatric disorder was not incurred in, or caused or aggravated by, active service, and there is no diagnosed psychiatric disorder that is secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO issued a September 2005 duty-to-assist letter to the Veteran in response to his claim of service connection for a low back disability. In February 2010, the RO sent another letter to the Veteran regarding his claim of service connection for a disability of the left leg (which was ultimately determined to be a claim of service connection for a left hip disability). These pre-adjudicatory notification complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate the service connection claims and the relative duties of VA and the claimant to obtain evidence. The letter did not specifically identify the five elements of a service connection claim as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006); however, that defect was subsequently cured in another letter issued in November 2006. The November 2006 notice letter was issued in response to the Veteran's additional claims of service connection for other orthopedic disabilities and depression, claimed as secondary to the left hip and back injury. The notice letter referred to the low back and left hip, along with the other claimed disabilities, and, specifically identified the five elements of a service connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims of service connection for a back disability and a left hip disability were subsequently readjudicated in a February 2008 Statement of the Case (SOC). The other orthopedic claims and the claim of service connection for depression were adjudicated in a May 2008 rating decision. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. 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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. The Veteran has obtained records from the Social Security Administration (SSA) and has asked the Veteran to provide authorization to obtain any private treatment records not already of record. The Veteran did not respond to the last request. The Veteran subsequently indicated that he had additional relevant evidence to submit; but he did not submit any evidence within the allotted 30 days that the case was set aside for him to do so. At his February 2011 Board hearing, the Veteran indicated that he received treatment for back and hip pain just after service and through 2003. During the hearing the undersigned Veterans Law Judge asked the Veteran if he had additional SSA records to submit and he indicated that he was unaware that he should submit any such evidence. The Veteran's representative argues that the RO did not comply with the Board's June 2011 remand directives because they never asked the SSA for additional records. However, a subsequent careful review of the file disclosed that all the Veteran's SSA records were already of record, and were added to the claims file in November 2007. The remand only directed the RO to ask the Veteran to submit or identify any additional relevant records, including any additional SSA records that he may have had. The Board did not direct the RO to contact the SSA. In addition to that directive, the Board directed the RO to schedule VA examinations to determine the current nature and likely etiology of the Veteran's left hip and back, as well as his depression and other orthopedic disabilities of the right hip, both knees, and left ankle. The examinations were held in June 2011 and the opinions provided are based on a review of the claims file, patient interview and sound medical principles. The examinations conducted in June 2011 are therefore adequate. Finally, the RO obtained outstanding VA records. The agency of original jurisdiction (AOJ) substantially complied with the June 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The undersigned finds that there was substantial compliance by the RO with the directives of the prior remand; that VA has complied with the notice and assistance requirements; and that the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as arthritis (degenerative joint disease) to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101 , 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected and once established for a secondary condition, the secondary condition shall be considered part of the original condition. This is secondary service connection. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease will be service connected. However, VA will not concede a nonservice-connected aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of evidence establishing the current level of severity of the nonservice-connected disease. This is service connection on an aggravation theory. 38 U.S.C.A. § 3 .310(b). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). See also See Dalton v. Nicholson, 21 Vet. App. 23, 38. (2007). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. The Veteran seeks service connection for a low back disability and a left hip disability. The Veteran's service treatment records (STRs) are silent as to any back or hip injury; yet, the Veteran has consistently maintained that he initially injured his low back and left hip when he fell off his Scorpion vehicle during maneuvers in Korea in 1960 or 1961. The Veteran reports continuity of symptoms since service, including a limp since service. In support of his claim, the Veteran submitted multiple lay statements from family, friends, and fellow soldiers with whom he served who recalled the Veteran returning from Korea with a limp due to his back/hip injury. The Veteran also seeks service connection on a secondary basis for additional orthopedic disabilities of the right hip, both knees, and left ankle. The Veteran maintains that he has developed disabilities of these joints over the years as a result of the initial in-service back and left hip injury. Finally, the Veteran also asserts that he has an acquired psychiatric disorder, to include depression, as a result of his multiple orthopedic disabilities. The Veteran is in receipt of Social Security Disability as a result of his back and hip disabilities. Private treatment records obtained by the SSA in conjunction with his award of SSA disability benefits provide evidence of treatment for severe back pain with magnetic resonance imaging (MRI) evidence of disc protrusion, stenosis and facet disease dating back to 2003, but no earlier. A September 2003 evaluation notes that the Veteran's symptoms had been increasing over the last 5 years, but the report does not provide an approximate date of symptom onset. VA outpatient treatment records from August 2006 to October 2006 show that the Veteran presented for an outpatient consult in August 2006 with long-standing pain which began in his left buttock and extended down the postero-lateral aspect of the thigh. The examiner noted the Veteran's reports of in-service onset, and also noted that the Veteran had undergone chiropractic treatment over the years and was told that his pain was "sciatica." X-rays of the left hip revealed that the Veteran had "an extensive deformity" and degenerative change involving the left hip. The femoral head was markedly deformed as well as the proximal portions of the femoral neck. The examiner noted the Veteran's overall problems with the low back, left hip, and both knees/feet; but, he opined that the primary culprit for all of the problems was the "bad" left hip (with heterotrophic ossification - a process which the examiner believed matured long ago.) These records further indicate that the Veteran was a good candidate for a left hip replacement. At a VA examination April 2010, the x-rays from 2006 are noted, and in particular it is noted that the right hip is unremarkable, yet the left hip shows extensive deformity and degenerative changes. The examination report further notes that the joint spaces in the left hip were essentially obliterated and the femoral head was markedly deformed as well as the proximal portions of the femoral neck. There were also some surrounding dystrophic and hypertrophic calcifications. Regarding the lumbar spine, there was multilevel degenerative disease without fracture or subluxation, and multilevel disc disease with vacuum disc phenomenon at L5-S1 at L4-L5. Also, there was multilevel facet disease (most severe at L5-S1) and bulky osteophytes at L1-L2. At the examination the Veteran reported the in-service accident, as noted above, and the examiner noted, upon a review of the claims file, that there was no record of the claimed incident. The examiner referred to private medical records dated in 2003 which was the first post-service evidence in the claims file showing treatment for lumbar spine DDD. The examiner pointed out that there was no mention of a back injury at that time. The examiner pointed out that the STRs showed no complaints, findings, treatment or diagnoses of the claimed injuries, except for an ankle complaint (and it was unclear as to which ankle) treated one time with a negative physical examination noted on December 3, 1959. The examiner also noted that the August 1961 separation examination was negative and the January 1962 separation physical at Fort Bliss was also negative for any physical findings and the Veteran's medical history did not mention any joint or back problem. The examiner noted a diagnosis of degenerative disc (DDD) and joint disease (DJD) of the lumbar spine with left side radiculopathy, but opined that this was less likely as not caused by or a result of a fall from the truck [during service]. The examiner concluded that the Veteran did not have DDD and DJD of the lumbar spine with left side radiculopathy that developed since his discharge from service 45 years ago because it was unlikely that the fall from a truck in 1961 would cause the current lumbar arthritis. The examiner further noted that there was no documentation of acute back injury at the time of the fall and no documentation of chronic back treatment until the evaluation in 2003. Further, the examiner indicated that the left leg weakness and pain was associated with the left side radiculopathy and not leg trauma in 1961. The Veteran was reexamined by VA in June 2011. The examiner reviewed the claims file and provided a written summary of his review, which includes the evidence as noted above. In this regard, the examiner pointed out that there was no evidence of a back or hip injury, pain, or a limp at the time of discharge from service or for 40 years thereafter. The Veteran specifically denied these symptoms on his Report of Medical History at discharge. The examiner also acknowledged the 2006 consultation and the opinion that all of the complaints were related to the Veteran's left hip severe DJD. The Veteran reported to the examiner that he began limping after service, and it became worse over time. The Veteran further reported that he was eventually told, based on x-ray evidence, that he had an old hip fracture. The Veteran reported his fall from a vehicle while stationed in Korea. He reported being seen by a medic and treated with heat and light duty for several days. According to the Veteran he got better and did not limp while in service. With regard to his right hip, both knees and left ankle, the Veteran reports the development of pain over time, and asserts that these disabilities are secondary to the left hip and back disabilities. Regarding the Veteran's back pain, he reported the onset of sharp pains from his back into his left leg. He told the examiner that he was seen by a chiropractor who told him he had sciatica. The diagnoses were DDD of the lumbar spine and severe DJD of the left hip. The examiner opined that the low back disability and left hip disability did not have their onset in service. The examiner essentially pointed out that the Veteran's statements were not consistent with the STRs, which showed no contained no information about the injury described by the Veteran, and his discharge examination was completely normal. Moreover the Veteran stated he was in good health and he specifically denied difficulty with lameness or joint problems. Further, the examiner pointed out that there were no notes regarding limping in service or complaints of hip or back pain in service. The examiner noted that the x-rays clearly show severe DJD of the left hip and they are compatible with a prior hip fracture. However, the examiner pointed out that there was a lack of medical records for four decades following discharge from service. The examiner also opined that the Veteran's right hip, low back, bilateral knee and left ankle conditions were all due to prior trauma to the left hip and the resultant severe gait abnormality. The examiner specifically indicated that this opinion was consistent with the 2006 opinion of the physical medical specialist. The June 2011 opinion is adequate because it takes into account the Veteran's reported history, the opinion of the prior examiner in April 2010 and provides a rationale for the opinion. The examiner's opinion is based on a review of the claims file and an interview with the Veteran, and sound medical principles. Significantly, the June 2011 examiner agreed with the April 2010 examiner's opinion, and there is no competent opinion to the contrary. In essence, the Veteran opined that the Veteran suffered some sort of trauma to his left hip at some point after service, but not during service; and, presumably prior to 2003, when the evidence in the claims file first shows medical treatment for back pain. The examiner did not necessarily opine that the truck accident and subsequent reported injury did not exist; rather, the examiner opined that no current arthritis or DDD is a result of that injury. The examiner stated that the Veteran's current left leg and back disabilities were less likely than not a result of the in-service injury because the Veteran reported no back or hip pain at the time of discharge from service. This is consistent with the Veteran's hearing testimony that his injuries got better before they got worse after service; and the statements from the Veteran and his wife indicating that the limp did not begin until after service discharge. Although the Veteran is certainly competent to report pain, and a limp, he is not necessarily competent to provide a nexus opinion linking the symptoms in service to the current diagnoses of severe left hip DJD and DDD of the lumbar spine, as this connection requires expert medical knowledge, particularly in this case since there is no medical evidence whatsoever noting any injury, complaints, symptoms or diagnosis in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran reports continuity of symptoms since service, there is no medical evidence of record to support these assertions. The Veteran indicated that he was told he had sciatica at some point after service, and that he underwent acupuncture procedures at some point after service, but he has not been able to produce any documentation to support these assertions. Once again, the Veteran is competent to state the type of treatment that he has undergone, and he is competent to report what a doctor told him, but when the Veteran's statements are compared to the other evidence of record, which includes an inconsistency between what the Veteran says, and what the STRs show, the Veteran's credibility comes into question. Even assuming, arguendo, that the Veteran did injury his left hip in service, the totality of the evidence weighs against a finding of continuity of symptoms since service. The Veteran specifically denied having any back or hip pain at the time of discharge, and this is completely contradictory to his current assertions. Moreover, even if the Veteran did walk with a limp beginning just after service through the current time, this alone is not enough to find that the Veteran's current lumbar spine DDD and DJD of the left hip had their onset during service or that either one was manifest to a degree of 10 percent or more within the first post-service year. In summary, the only evidence of record of any in-service injury, in-service treatment, continuity of symptoms since service, and chronicity since service, is the Veteran's lay assertions, and the lay statements from those who knew him after service, who corroborated his assertion that he walked with a limp after service. This evidence, however, is outweighed by two medical opinions weighing against the claim. Moreover, the report from 2006 does not suggest that the left hip disability had its onset during service or within the first post-service year; rather, the report merely notes that the Veteran issues regarding his low back, left hip and both knees and feet were likely due to the primary culprit of a "bad" left hip (with heterotrophic ossification). The examiner opined that the process began "long ago," but he did not specifically opine as to how long ago, or whether the "bad hip" was related to any injury, event or disease in service. Although the Veteran reports a limp and pain since service, there is no diagnosis of arthritis or any other chronic disability of the hip or back during service or within the first post-service year, and there is no documented evidence of a chronic hip or back disability, such as arthritis, until 40 years after service discharge. In other words, the Veteran's reports of continuity of symptoms of pain and a limp since service does not provide evidence of chronicity (chronic/permanence) since service, and because nothing was shown in service or within the post-service year, or for forty years after service, the totality of the evidence weighs against the claim. For these reasons, the preponderance of the evidence is against the claims and service connection for DDD of the lumbar spine and DJD of the left hip is not warranted. As the preponderance of the evidence weighs against the claims, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. With regard to the remaining claims on appeal, the Veteran asserts that these claims are secondary to the DDD of the lumbar spine and the DJD of the left hip. The evidence of record does not show, and the Veteran does not contend, that his depression, and orthopedic disabilities of the right hip, both knees, and left ankle were incurred in service or within the first post-service year. Rather, the Veteran believes that over time, he developed the orthopedic disabilities as a result of the severe DJD of the left hip. The VA examiner in 2006 agreed, and the June 2011 VA examiner's opinion was entirely consistent with the 2006 opinion. There is no evidence to the contrary. Because all of the competent and probative evidence of record links the Veteran's orthopedic disabilities of the right hip, both knees, and left ankle to the non-service-connected left hip DJD and low back DDD, and no evidence of record shows that the Veteran's orthopedic disabilities of the right hip, both knees and left ankle were as likely as not incurred in or aggravated by service, service connection is not established for these secondary disabilities. Similarly, the VA mental health examiner, who found that the Veteran did not fully meet the DSM-IV criteria for a full diagnosis of major depressive disorder, opined that the Veteran's depression symptoms were linked to his multiple medical conditions and chronic pain, including the non-service-connected DDD of the lumbar spine and the DJD of the left hip. There is no opinion to the contrary. Because all of the competent and probative evidence of record links the Veteran's depression to his non-service-connected disabilities, and no evidence shows that the Veteran's depression was as likely as not incurred in or aggravated by service, service connection for depression is not established. For these reasons, the evidence is against the claim and service connection for depression, a right hip disability, a right knee disability, a left knee disability and a left ankle disability is not warranted. As the evidence weighs against the claims, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER 1. Service connection for a low back disability is denied. 2. Service connection for a left hip disability is denied. 3. Service connection for a right hip disability is denied. 4. Service connection for a right knee disability is denied. 5. Service connection for a left knee disability is denied. 6. Service connection for a left ankle disability is denied. 7. Service connection for an acquired psychiatric disorder, to include depression, is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs