Citation Nr: 1715323 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 09-16 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1966 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying service connection for a left hip disability and a left knee disability. These matters were previously remanded by the Board for further development in June 2013, and again in December 2015. The December 2015 remand instructed the RO to work with the Veteran identify and obtain any pertinent private treatment records, obtain all outstanding VA treatment records regarding the left knee and to provide the Veteran a VA examination for his left hip and knee. The Agency of Original Jurisdiction (AOJ) substantially complied with the board's remand order, and the Board finds that it may proceed with a decision at this time. See, 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 (Fed. Cir. 2002). The Board notes that the record raises the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU). This matter was referred to the Agency of Original Jurisdiction (AOJ) by the Board in June 2013 and is not presently before the Board. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. There is no current diagnosis of a left hip disability. 2. There is no current diagnosis of a left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2016). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all the duty to notify and assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). Duty to Notify VA's duty to notify was satisfied by July 2006 and January 2016 letters. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment and personnel records and post-service treatment records have been associated with the record. Additionally, during the appeal period the Veteran was afforded VA examinations in July 2007, July 2013 and February 2016, as well as an addendum opinion in May 2016. The examiners conducted examinations and provided sufficient information regarding the Veteran's claimed disabilities such that the Board can render an informed determination. The Board finds that the examinations are adequate for service connection purposes. In January 2016, VA sent the Veteran a letter asking him to provide authorization to disclose information from private health care providers. The Veteran did not respond to this letter. Because there is no indication in the record that any additional evidence pertinent to the claims is available and unassociated with the file, the Board concludes VA has satisfied its duty to assist. Service Connection Principles In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See, Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, a disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for cardiovascular disease) following discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Background The Veteran maintains that he has left hip and left knee disabilities that were caused by overuse due to compensating for service connected injuries to his right upper and lower extremities. Service treatment records from July 1967 note that the Veteran suffered an electric shock and reported pain and stiffness of his entire right arm and shoulder. The Board notes that service treatment records are silent for complaints, diagnoses or treatments of the left hip or left knee. In June 2006, the Veteran submitted a claim for left leg and hip pain. A VA treatment record dated February 2007 notes the Veteran reported chronic pain in his left thigh and leg and stated it was due to an electrical shock he received while in the Navy. In July 2007, the Veteran was afforded a VA examination for his complaint of right upper and lower extremity pain. It was noted that the Veteran reported having no complaint or problems regarding the left lower extremity. No complaint or diagnosis of any left knee or left hip disability was noted by the examiner. The Board notes, however, that the examiner noted the patient's demeanor as "tearful" and "dysphoric", and that the Veteran "adamantly" refused electromyography (EMG) and nerve conduction velocity (NCV) testing due to a fear his pain would increase as a result of the tests. In October 2007, the Veteran submitted a Notice of Disagreement (NOD), in which he stated that he has a "right leg limp" which caused him to use his left leg and knee "more and in a different manner when compensating for the right leg and hip." An April 2008 VA treatment record notes left knee and left hip arthralgia and further noted it is "likely from favoring right leg" and x-rays were ordered. A July 2008 VA treatment record notes the Veteran complained of right knee and right hip pain because he had been favoring the left knee. An addendum treatment record shows a review of x-rays of the Veteran's left hip in which "[n]o fractures, dislocation or any significant degenerative changes [were] noted." In August 2008, a VA staff physician provided a letter for the Veteran stating that the Veteran had been experiencing pain in his left leg and left knee "which is likely a direct result of favoring ". The staff physician also stated that left knee x-rays suggest the Veteran "may have some mild osteoarthritis of the hip and knee." A VA staff physician provided a second letter for the Veteran in May 2009 again stating that the Veteran's left leg and hip pain is "as likely as not a direct result of favoring this side of the body because of the pain in his right leg and hip." The staff physician again stated that x-rays suggest the Veteran "may have some mild osteoarthritis of the hip and knee." The Veteran was afforded a VA examination in July 2013 for the claimed condition of left hip pain. The examiner noted that the Veteran did not have any current diagnosis associated with his left hip. It was further noted that the Veteran denied flare ups that impacted the function of the left hip or thigh or that required hospital admission or surgery. The Veteran was able to perform repetitive use testing with three repetitions with no additional limitation in range of motion. Functional impairment of the left hip and thigh was noted with less movement than normal that was weakened and painful. Pain was not present on palpation. Muscle testing showed normal strength with no ankylosis of either hip joint. A one quarter inch discrepancy in leg length was noted, but the examiner concluded it was not pathologic and was "well within normal variation." The Veteran did not report the use of any assistive device. The examiner further noted the left hip did not impact the Veteran's ability to work. The Veteran was afforded a VA examination in July 2013 for the claimed condition of left knee pain. The examiner noted that the Veteran did not have any current diagnosis associated with his left knee. It was further noted that the Veteran denied flare ups that impacted the function of the left knee or that required hospital admission or surgery. The Veteran was able to perform repetitive use testing with three repetitions with no additional limitation in range of motion. Functional impairment of the left knee was noted with less movement than normal that was weakened and painful. Pain was present on palpation. Muscle testing showed normal knee strength for flexion and extension. Testing for anterior, posterior and medial-lateral instability testing was normal. No surgical procedures for the left knee were noted and the Veteran did not report using an assistive device. The July 2013 examiner noted that diagnostic imaging tests of the left hip and left knee had been performed and did not show any degenerative or traumatic arthritis. The examiner further noted that the Veteran denied any injury or trauma to the left hip or left knee and reported daily pain which worsened when walking or standing for prolonged periods. The examiner also noted that the electrical shock the Veteran suffered in service is not the type of injury that causes joint injuries and described the 2009 statement from the VA staff physician as "very speculative", and concluded that there is "clearly no evidence of degenerative changes" shown in the 2008 x-rays and "no significant degenerative changes" shown in the 2013 x-rays. The examiner further noted that the Veteran's right shoulder condition has no pathophysiologic connection to the left hip or knee and concluded that "there is no way that [the Veteran's right leg] could affect/cause/aggravate the hip/knee." It was also noted that the Veteran reported that both his left hip and left knee pain had only begun three to four years prior. An October 2014 VA treatment record documents MRI results. The impressions regarding the hips were no significant abnormality in the right hip and nonspecific, mild, soft tissue edema posterior to the left hip, but otherwise normal. No MRI of the knees was noted. VA treatment notes from January and February 2015 note normal hip flexion and abduction and note the Veteran did not use an assistive device. A VA treatment note from March 2015 notes normal hip flexion and abduction and notes the Veteran did not use an assistive device. A possible worsening of pain in the Veteran's left knee, "more so than the right", was also noted. The Veteran was afforded a VA examination in February 2016 for his left hip pain. The examiner noted that there is no current diagnosis associated with the left hip and also noted that the Veteran reports no flare ups of the hip or thigh nor any functional loss or impairment. It was noted that the Veteran reports his left hip and knee pain is the result of overuse which is due to right hip and knee problems that stem from an electrical shock received while in service. Upon examination, the examiner noted an abnormal range of motion for both hips which does not contribute to a functional loss. The examiner noted pain upon weight bearing for both hips, but no objective evidence of crepitus for either. The examiner also noted objective evidence of localized pain upon palpation for both hips (palpation over Greater Trochanter for the right hip and Greater Trochanter, post aspect of hip and in mid buttock for the left). It was noted that the Veteran was not able to perform repetitive use testing on either hip after two attempts due to increased pain. Muscle strength for both hips was noted as normal on flexion, extension and abduction, with no atrophy. No ankylosis was noted for either hip. No malunion or nonunion of femur, flail hip joint or length discrepancy were noted. The Veteran reported regular use of a cane. The examiner noted imaging tests show degenerative arthritis in the right hip, but not the left. It was also noted that an MRI from October 2014 showed the left hip was within normal limits. Finally, the examiner concluded that the Veteran's bilateral hip pain does not impact his ability to perform any type of occupational task. The Veteran was afforded a VA examination in February 2016 for his left knee pain. The examiner noted that there is no current diagnosis associated with the left knee. The examiner noted that the Veteran reports his left knee pain and stiffness is the result of overuse which is due to right knee and hip problems that stem from an electrical shock received while in service. The examiner noted an abnormal range of motion for both knees which does not contribute to functional loss. The examiner noted pain upon flexion and with weight bearing, but no objective evidence of crepitus for both knees. The examiner also noted objective evidence of localized pain upon palpation for both knees. It was noted that the Veteran was not able to perform repetitive use testing on either knee after two attempts due to increased pain. Muscle strength for both knees was noted as normal on forward flexion and extension, with no atrophy. No ankylosis was noted for either knee. Joint stability testing for both knees showed no instability, and no history of recurrent subluxation, lateral instability or recurrent effusion was noted. The Veteran reported regular use of a cane. It was further noted that diagnostic imaging tests showed no degenerative or traumatic changes. Finally, the examiner concluded that the Veteran's bilateral knee pain does not impact his ability to perform any type of occupational task. The February 2016 VA examiner opined that the Veteran's left hip or knee conditions were less likely than not incurred in or caused by the Veteran's service and noted that the diagnostic imaging tests do not indicate any significant degenerative disorders of either joint. The examiner further opined that the findings are more likely than not due to age-related declines in function. An addendum opinion to the February 2016 VA examination was obtained in May 2016. The examiner reviewed the examinations and the claims file and opined that there is no relationship between the Veteran's knee and hip disabilities and the electrical shock injury the Veteran suffered while in service. The examiner concluded that a review of the service treatment records showed the injury was confined to the Veteran's upper extremity and shoulder with no complaint made of injury to the hips or knees and opined that "there is no reason to believe there is or was any aggravation of either of the claimed joints by the electrical contact injury almost 50 years ago." Analysis At the outset, the Board notes that the Veteran does not have any diagnoses, other than pain, for his left hip or his left knee. As discussed above, the Veteran was afforded VA examinations in July 2007, July 2013 and February 2016, as well as an addendum opinion in May 2016. The Veteran was not diagnosed with a left hip or left knee disability, other than pain, at any one of the VA examinations. In this case, pain is not one of the chronic diseases listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms, "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran does not have a diagnosis of a current disability for either his left hip or his left knee. The Board notes that pain alone, without any functional impairment or underlying diagnosis, is not a service connectable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also, Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is cognizant of the August 2008 and May 2009 letters from Dr. M. M., a VA staff physician. However, neither of these letters provides a diagnosis beyond pain and both only speculate that the Veteran "may have some mild osteoarthritis of the hip and knee." The notation that the Veteran " may have some mild osteoarthritis of the hip and knee" is of no probative value, as the use of terms like "possibly" and "may" is too indefinite and speculative to be probative in nature. See, Bostain v. West, 11 Vet. App. 124, 127-28, quoting, Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also, Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). For the reasons stated above, the Board finds that the Veteran does not have a current diagnosis other than pain for either his left hip or left knee. Therefore, Hickson element (1), current disability, has not been satisfied, and the claim fails on this basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs