Citation Nr: 1320160 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 06-17 792A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability (excision of mass from distal left thigh and/or left knee disabilities). 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability (excision of mass from distal left thigh and/or left knee disabilities). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1971 to October 1973. These matters come before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. These matters were previously before the Board in June 2008, when the Board remanded the issues for further development. They were again before the Board in April 2009, when the Board denied the Veteran's claims; however, the Board, in December 2009, vacated the April 2009 decision, and remanded the claims for further development. The matters were again before the Board in August 2011 and August 2012 when they were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the prior remands and will proceed to adjudicate the appeal. FINDINGS OF FACT 1. The Veteran does not contend that his current right hip disability is due to a right hip injury in service. 2. The earliest post-service clinical evidence of a right hip disability is in 2006, approximately 33 years after separation from service. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a current right hip disability causally related to, or aggravated by, active service or a service-connected disability. 4. The clinical evidence of record is against a finding that the Veteran has a current right hip disability causally related to, or aggravated by, active service or a service-connected disability. 5. The Veteran does not contend that his current right knee disability is due to a right knee injury in service. 6. The earliest clinical evidence of a right knee disability is in 2006, approximately 33 years after separation from service. 7. The Veteran is less than credible with regard to his contention that his current right knee disability symptoms began in 1975. 8. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a current right knee disability causally related to, or aggravated by, active service or a service-connected disability. 9. The clinical evidence of record is against a finding that the Veteran has a current right knee disability causally related to, or aggravated by, active service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in September 2005 and May 2006. VA also has a duty to assist the Veteran in the development of the claims. The claims file contains the Veteran's STRs, VA medical records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. October 2012 VA examination reports are of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate examinations with opinions because the reports reflect the clinical examination findings, an interview with the Veteran with regard to his symptoms and treatment, and rationale for the opinions proffered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Service Connection in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006), to implement the decision in Allen. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Right Hip Disability The Veteran has been diagnosed with chronic trochanteric bursitis of the right hip. Initially, the Board notes that Veteran does not contend that his right hip disability is due to an injury in service. Nevertheless, for the sake of completeness the Board has considered whether the Veteran is entitled to service connection on a direct incurrence basis. The Veteran's STRs reflect that on September 10, 1973, the Veteran sought treatment for complaints of pain in the upper right leg. He was treated with hot packs. Subsequent STRs reflect complaints of the left lateral thigh and the left knee, but are negative for complaints of, or treatment for, the right hip. An October 18, 1973 STR (clinical record of hospitalization) reflects that the Veteran was hospitalized for treatment of his left leg since September 21, 1973. The record notes that positive physical findings for the Veteran were limited to the left lower extremity. It was noted that the remainder of the examination was essentially normal. After hospitalization, the Veteran was returned to full duty. The report is entirely negative for any findings or complaints regarding the right hip. The Veteran's October 27, 1973 report of medical examination for separation purposes reflects that the Veteran had an abnormality of the left lower extremity. It was noted that the Veteran had a calcified hematoma of the lateral aspect of the distal left thigh. The earliest post-service clinical evidence of a right hip disability is in 2006, approximately 33 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent credible evidence of record that the Veteran's single noted complaint in service of pain in the right upper leg, for which he was treated with hot packs, is causally related to his current right hip disability. In this regard the Board finds that the September 1973 symptom was acute and transitory as the STRs are negative for any further findings, and the right leg was not noted to be abnormal upon separation. The Board finds that if the Veteran had right leg complaints, other than the one incident, in service, it would have been reasonable for any such complaints to be noted in the record, especially because the Veteran was hospitalized for approximately one month prior to separation and underwent treatment for the left lower extremity. Moreover, there is no competent credible evidence of record that the Veteran had right hip symptoms within one year after separation from service. An October 2012 VA examination report reflects that the examiner opined that it less likely as not that the current right hip condition was caused by and the result of active military service. The examiner opined that there was no evidence of chronic or recurrent hip conditions found in the STRs, and the Veteran reported that the condition began in 2001, many years after discharge. Based on the foregoing, the Board finds that service connection on a direct incurrence basis is not warranted for a right hip disability. Next, the Board will discuss entitlement to service connection for a right hip disability as secondary to a service-connected disability. In his VA Form 9 dated in June 2006, and a statement dated in September 2012, the Veteran contended that his service-connected knee disability has caused his hip disability. The Veteran is service connected for postoperative residuals of excision of a mass of the distal left thigh, post-operative residuals of anterior cruciate ligament and lateral meniscus tear of the left knee, and depression. A January 2006 VA examination report reflects that the Veteran reported that his right hip began hurting approximately one year earlier, or in approximately 2005, due to supporting his left leg. An October 2012 VA examination report reflects that the Veteran reported that the onset of his right lateral hip pain was in approximately 2001. The Veteran separated from service in 1973. Thus, according to him, his right hip symptoms began either 28 or 32 years after separation from service. A January 2006 VA examination report reflects that upon clinical examination, the examiner diagnosed the Veteran was a strain of the right hip. The examiner opined that the hip disability is less likely than not related to the Veteran's left knee injury because there is no good evidence that abnormal gait would cause the hip pain. A December 2010 VA examination report is also of record. The Veteran contended that he had bilateral hip pain due to a mass that was excised in service from the left thigh. The examiner noted that the calcified hematoma in service did not involve the joint (it was not intra-articular). The examiner also noted that the Veteran had a limping left gait. He diagnosed the Veteran with mildly unstable lateral collateral ligament of the left knee. An October 2012 VA examination report is also of record. The report reflects a diagnosis of right hip chronic trochanteric bursitis. The examiner opined that it is less likely as not that the current right hip condition was caused by, aggravated by, or the result of the Veteran's service-connected left knee condition or left thigh condition. The examiner also stated as follows: I know of no medical authority or peer reviewed medical literature which supports the contention that a left knee meniscal or ACL injury or a left thigh calcified hematoma can be causative to the development or the aggravation of a right trocanteric bursitis. The veteran's current gait is mildly antalgic. No peer reviewed medical literature support the contention that contralateral trochanteric bursitis occurs with any increased likelihood when associated with a mildly antalgic gait. The report reflects that the examiner considered the contentions of the Veteran, as well as clinical findings. The examiner's opinion is against a finding that a service-connected disability caused, or aggravated, the Veteran's current right hip disability. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g. right hip pain). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current right hip pain; however, he has not been shown to have the education, training, and experience necessary to provide a competent opinion as to etiology of the hip disability in the present case. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case, hip bursitis or hip strain with onset of symptoms decades after separation from service. Nor is a lay person competent to provide a probative opinion as to whether the Veteran's hip disability is as likely as not caused by, or aggravated by, his service-connected disabilities in light of the education and training necessary to make a finding with regard to biomechanics and the relationship of musculoskeletal disabilities, and hematomas. The Board finds that such an etiology finding falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a right hip disability causally related to service or to a service-connected disability, or aggravated by service or a service-connected disability. To the contrary, the evidence is against any such finding. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Right Knee Disability The Veteran has been diagnosed with right knee degenerative joint disease. Initially, the Board notes that Veteran does not contend that his right knee disability is due to an injury in service. For the sake of completeness the Board has considered whether the Veteran is entitled to service connection on a direct incurrence basis. The Veteran's STRs reflect that on December 14, 1972, the Veteran sought treatment for "ankle [and] knee swollen." The STR reflects that there was no swelling or dislocation of the ankle. An x-ray of the right knee was negative. There are no subsequent STRs which note complaints of, or treatment for, the right knee. The Board notes that between December 14, 1972 and October 1973, the Veteran sought treatment on more than 25 occasions for a variety of complaints to include nausea and vomiting with stomach cramps, sinus congestion, strep throat, inflamed tonsils, rash on the trunk and back, herpes, left knee problems, fungus of the foot, and a swollen left leg. The Board finds that if the Veteran had additional symptoms with regard to the right knee, it would have been reasonable for him to have sought treatment, and for it to have been noted in the clinical records, as he sought treatment on numerous other occasions; it is not. In addition, in September 10, 1973, the Veteran sought treatment for complaints of pain in the upper right leg. He was treated with hot packs. The STR is negative for right knee complaints. Subsequent STRs reflect complaints of the left lateral thigh and the left knee, but are negative for complaints of, or treatment for, the right knee. An October 18, 1973 STR (clinical record of hospitalization) reflects that the Veteran was hospitalized for treatment of his left leg since September 21, 1973. The record notes that positive physical findings for the Veteran were limited to the left lower extremity. It was noted that the remainder of the examination was essentially normal. After hospitalization, the Veteran was returned to full duty. The report is entirely negative for any findings or complaints regarding the right knee. The Veteran's October 27, 1973 report of medical examination for separation purposes reflects that the Veteran had an abnormality of the left lower extremity. It was noted that the Veteran had a calcified hematoma of the lateral aspect of the distal left thigh. There is no mention of a right knee complaint, symptoms, or disability. The earliest post-service clinical evidence of a right knee disability is in 2006, approximately 33 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent credible evidence of record that the Veteran's single noted complaint in service of pain in the right knee is causally related to his current right knee disability. In this regard the Board finds that the December 1972 symptom was acute and transitory as the STRs are negative for any further findings, and the right leg was not noted to be abnormal upon separation. The Board finds that if the Veteran had right knee complaints, other than the one incident, in service, it would have been reasonable for any such complaints to be noted in the record, especially because the Veteran was hospitalized for approximately one month prior to separation and underwent treatment for the left lower extremity. Moreover, there is no competent credible evidence of record that the Veteran had right knee symptoms within one year after separation from service. An October 2012 VA examination report reflects that the examiner opined that it less likely as not that the current right knee condition was caused by and the result of active military service. The examiner opined that there was no evidence of chronic or recurrent right knee conditions found in the STRs, and opined that the right knee pain began after discharge from military service. The examiner also noted that the Veteran's right knee was not worse than what would be expected at the Veteran's current age. Based on the foregoing, the Board finds that service connection on a direct incurrence basis is not warranted for a right knee disability. Next, the Board will discuss entitlement to service connection for a right knee disability as secondary to a service-connected disability. In his VA Form 9 dated in June 2006, the Veteran contended that his right knee disability is a direct result of compensating for his service-connected left knee disability. As noted above, the Veteran is service connected for postoperative residuals of excision of a mass of the distal left thigh, post-operative residuals of anterior cruciate ligament and lateral meniscus tear of the left knee, and depression. A January 2006 VA examination report reflects that the Veteran reported that his right knee pain began in 1989, approximately 15 years after separation from service. A September 2006 VA radiology report reflects that there was "minor narrowing of the medial joint compartment. Otherwise unremarkable." The examiner stated that it is less likely than not that his right knee disability is related to his left knee injury because there is no good evidence that abnormal gait would cause the right knee pain. A July 2009 VA radiology report reflects that there was no bone or joint abnormality. There was no degenerative change or joint space narrowing. The patella was normal and there was no joint effusion. The impression was a normal right knee. A May 2011 VA clinical record reflects that the Veteran reported that he had knee pain for the past 37 years, or since approximately 1974. An October 2012 VA examination report reflects that the Veteran reported recurrent right knee generalized pain and swelling since 1975. The Board notes that these two statements are significantly different from the January 2006 report which notes an onset date of 1989. The Board finds that the statements as to an onset date of 1974 or 1975 are less credible than the report made in 2006, which was closer in time to the reported onset of symptoms and was made prior to a denial of his compensation claim. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The October 2012 examiner opined that it is less likely as not that the current right knee condition was caused by, aggravated by, or the result of the Veteran's servce-connected left knee condition or left thigh condition. The examiner also stated as follows: I know of no medical authority or peer reviewed medical literature which supports the contention that a left thigh calcified hematoma or left knee meniscal injury or ACL tear can be causation to the development of right knee degenerative joint disease. I know of no association of a mildly antalgic gait with the development of degenerative disease of the knees. The current right knee negative disease is not worse than would be expected at the veterans current age. The report reflects that the examiner considered the contentions of the Veteran, as well as clinical findings. The examiner's opinion is against a finding that a service-connected disability caused, or aggravated, the Veteran's current right knee disability. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g. right knee pain). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current right knee pain; however, he has not been shown to have the education, training, and experience necessary to provide a competent opinion as to etiology of the knee disability in the present case. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case, degenerative disease of the knee with onset of symptoms decades after separation from service. Nor is a lay person competent to provide a probative opinion as to whether the Veteran's knee disability is as likely as not caused by, or aggravated by, his service-connected disabilities in light of the education and training necessary to make a finding with regard to biomechanics and the relationship of musculoskeletal disabilities, and hematomas. The Board finds that such an etiology finding falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a right knee disability causally related to service or to a service-connected disability, or aggravated by service or a service-connected disability. To the contrary, the evidence is against any such finding. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a right hip disability, to include as secondary to service-connected disability is denied. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs