Citation Nr: 1722673 Decision Date: 06/19/17 Archive Date: 06/29/17 DOCKET NO. 10-04 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected chronic strain of the right tibia and fibula. 2. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected chronic strain of the right tibia and fibula. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to March 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran's case was subsequently transferred to the RO in Houston, Texas. A Board video conferencing hearing was held on May 7, 2014, in Houston, Texas, before Kathleen K. Gallagher, a Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is located in the Veteran's claims file. The Board remanded this matter in August 2014 and December 2015 for additional development, which has not been substantially completed. FINDINGS OF FACT 1. The current a right hip disorder was not incurred in service, nor is it shown to be secondary to the service-connected chronic strain of the right tibia and fibula. 2. The current a lumbar spine disorder was not incurred in service, nor is it shown to be secondary to the service-connected chronic strain of the right tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disorder, to include as secondary to chronic strain of the right tibia and fibula, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). 2. The criteria for service connection for a lumbar spine disorder, to include as secondary to chronic strain of the right tibia and fibula, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, VCAA notice was provided by correspondence in March 2007. The claims were last adjudicated in January 2017. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records and post-service treatment records and VA examination and opinion reports. The Board also notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. 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, 1131; 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 service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Analysis The Veteran asserts that his claimed right hip and lumbar spine disorders are secondary to the service-connected chronic strain of the right tibia and fibula and/or aggravated by military events and/or injury. The Veteran sustained a comminuted fracture of the while skiing that in January 1973, which required casting, re-reduction with re-casting, and alignment osteotomy of the tibia. The Veteran asserts that as a result of this injury and treatment his right leg was shortened and consequently he developed an altered gait which caused him to develop right hip and lower back disabilities. In support of his claims, the Veteran submitted witness statements from acquaintances who described witnessing the Veteran limping after service and complaining of hip and low back pain throughout the years. The evidence of record shows that the Veteran has been diagnosed with lumbar spine spondylosis with degenerative changes and osteoarthritis of the right hip. Accordingly, the first element of service connection, a current disability, is met. The service treatment records show that in January 1973 the Veteran sustained a closed right tibial fracture with an intact fibula while skiing. He was initially casted and was healing. Due to a varus deformity of 15 degrees, four months later the Veteran underwent a fibula osteotomy to align the tibia in better position. Reportedly the tibia healed successfully. On separation from service in March 1974, the Veteran endorsed a history of right leg soreness. He denied taking any medication at that time. He also denied a history of recurrent back pain and his spine and lower extremities were clinically evaluated as normal. After service, x-rays in August 2005 revealed mild to moderate degenerative disc disease of the thoracic spine at multiple levels. After 2007 degenerative changes of the right hip and lumbar spine were noted. Upon review of the record, the Board notes that the Veteran was not shown to have arthritis of the right hip or lumbar spine in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Thus, competent evidence of a nexus between the current disabilities and service or a service connected disability is necessary to substantiate the claims for service connection. On VA examination in April 2007, the Veteran reported injuring his right tibia in service while skiing. He was diagnosed with a right tibia spiral butterfly fracture. The Veteran was told that he would need an extensive surgery and hospitalization, but he requested to be transferred to his home base. The Veteran stated, that unfortunately, he did not receive adequate treatment in a timely manner. His right leg was cast and unfortunately he was given crutches that were the wrong size. The Veteran underwent a closed alignment times 2 and then finally he had a surgical open reduction to the right tibia in June 1973. He did not receive any significant treatment for the right hip or lower back until 1997. He also related having sustained injuries to the left lower leg. The Veteran reported a history of an injury sustained a few years earlier that required 12 surgeries to his left lower leg, including bone grafting, muscle removal and skin grafting. The Veteran walked with an antalgic gait holding a cane in his right hand. Examination revealed that revealed the right lower extremity was one centimeter shorter than the left lower extremity as measured from anterior iliac spine to medial malleolus of the ankle. The right leg measured 94 cm and the left measured 95 cm. Following an examination of the Veteran the examiner diagnosed chronic right tibia and fibula strain, status post-fracture and open reduction, chronic strain of the right hip and chronic lumbosacral strain. The examiner could not find an evidence of the disease process as related to the right hip and lower back. The examiner opined that it was less likely than not that the Veteran's right hip and lower back conditions were related to his right tibia status post fracture and surgery. In July 2007 the Veteran underwent a left tibia below the knee amputation with prosthesis. In a medical statement in August 2007, the Veteran's private treating physician, Dr. R.P., indicated that he treated the Veteran in April 1993 and opined that the in-service surgeries, including re-fracturing and removing approximately 1 inch of the Veteran's right fibula to equal the length of his tibia, led to imbalance, which led to wear and tear of the hip joints and the spine. On VA examination in November 2009, the Veteran reported a history of limping since 1974 secondary to the right leg length shortening. The examiner diagnosed postoperative changes of the left leg and healed fractures of the right tibia and fibula, spondylosis lumbar spine with left L4-L5 facet arthrosis without lower extremity radiculopathy, and symmetric osteoarthritis of the bilateral hips. The examiner opined that the right hip and lower back disabilities were not caused or a result of service. The examiner based the opinion on the fact the he could find no treatment for these conditions during service. The examiner further noted there were no evaluations in his case file that would lead a logical person to conclude that there was a nexus between the right hip or low back condition with the service-connected right tibia condition, stating that the impact of the right tibia biomechanics was not etiologically associated with right hip and low back degenerative changes. On VA examination in April 2015, the Veteran reported that he initially noticed low back and right hip pain in 1973, after using crutches to assist with post surgery due to fracture of the right tibia. The Veteran reported being seen in service several times for his low back. Reportedly, he also complained of right hip pain. He stated that after service he sought treatment for the right hip condition 1980's and in 1990's, and again after 2010. The examiner opined that degenerative joint disease of the lumbar spine with right sciatica and osteoarthritis of the bilateral hips were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner attributed these degenerative changes to the Veteran's advancing age. The examiner noted that imaging studies revealed osteoarthritis of the lumbar spine and bilateral hips which could occur with aging. The examiner indicated that opinions could not be rendered addressing the impact of leg length discrepancy on the Veteran's lumbar spine and right hip disorders because leg length measurements were not available prior to the amputation. However, the Board in December 2015 noted that in fact the April 2007 VA examination report, prior to the July 2007 amputation, noted that the right leg measured 94 cm and the left leg measured 95 cm. Accordingly, the Board remanded for a VA medical opinion from a VA orthopedic specialist. In March 2016 a chief orthopedist reviewed the claims file and rendered a medical opinion report. The physician noted that the Veteran sustained a closed right tibial fracture with an intact fibula in January 1973 while skiing. He was initially casted and was healing. Due to a varus deformity of 15 degrees, which occurred and which commonly occurred in all these isolated tibial fractures with an intact fibula, the Veteran underwent a fibula osteotomy to align the tibia in better position. The physician stated that performing this procedure at four months was standard treatment in 1973, as it allowed initial tibial fracture healing to occur and it did. The fibula osteotomy was performed to prevent tibial "distraction" and to correct the tibial alignment. This occurred and the tibia healed successfully. The Veteran did not have a duty limitation when he separated from active duty in March 1974. In April 2007 it was noted that the Veteran's right lower extremity was one centimeter shorter than the left lower extremity as measured from anterior iliac spine to medial malleolus of the ankle. The Veteran subsequently had a left below knee amputation for other reasons after having had numerous operative procedures to try to salvage the left leg. The medical record showed subsequent development of osteoarthritis of the right hip and degenerative lumbar disc disease. The examiner diagnosed a healed right tibial fracture with one cm shortening according to medical record, and left below the knee amputation. The physician noted that in his experience as an orthopedic surgeon, one centimeter of tibial shortening after fracture healing did not cause clinical symptoms and did not lead to the development of arthritis of the hip or spine. In support of the opinion, the physician cited to the medical literature. The physician added that the Veteran received excellent medical care for the treatment of his right leg injury with the tibial fracture during service. There was no delay in appropriate treatment and he received state of the art orthopedic care for his injury in 1973. Accordingly, the physician opined that the Veteran's tibial fracture was less likely than not to have led to any adverse sequelae. In an addendum report in April 2016, the physician reiterated that the military injury that resulted in a one centimeter of shortening of a tibia was not clinically significant. The physician reported that the opinion was based on the medical literature, as well as her own extensive clinical experience. In January 2017 a second VA medical opinion from a different VA physician was obtained. The physician opined that it was less likely as not that the current claimed conditions, to include right hip and lumbar spine, were due to an event or injury during service. The physician noted that the Veteran sustained a comminuted fracture of the tibia near the junction of the mid and distal 1/3 shaft (ski-boot fracture) while skiing in January 1973. The Veteran was appropriately treated with preliminary casting for reduction stabilization of the fracture site. The course of treatment included re-reduction with re-casting. At 4.5 months post injury, the healing fracture site was noted to be in 12-15 degrees of varus. The Veteran elected for an alignment osteotomy of the tibia. The Veteran returned to full duty following an uncomplicated post-operative healing period. On separation from service in March 1974, the Veteran reported occasional soreness in right leg. The subsequent active duty and presumptive period medical notes were negative for complaints, diagnosis, treatment, re-injury and/or events related to limb length discrepancy, lumbar spine and/or right hip conditions. The physician also opined that it was less likely than not that the current claimed conditions, to include right hip and lumbar spine, were caused or aggravated by the service connected chronic strain of the right tibia and fibula. The physician noted that the right leg was shortened as a result of his right tibial fracture during service. However, the physician agreed with the chief orthopedist's findings in March 2016 that the fibula osteotomy was performed to prevent tibial distraction and to correct the tibial alignment, and the tibia healed successfully. The Veteran did not have a duty limitation when he separated from active duty in March 1974. Therefore, it was his opinion that the Veteran received excellent medical care for the treatment of his right leg injury with the tibial fracture. There was no delay in appropriate treatment and he received state of the art orthopedic care for his injury in 1973. Moreover, current orthopedic and podiatric literature supported a finding that the body, to include spine and contralateral extremity, accommodated for this amount of limb length difference. Additionally, review of the post-service medical records showed that the Veteran underwent an non-service connected 2007 left below the knee amputation. Associated with the left lower extremity amputation, the medical evidence recorded right hip and lumbar spine complaints of pain and discomfort. Current orthopedic and rehabilitation literature supported a finding that lower limb amputation affected the contralateral extremity and lower back. In this regard, patients who had previously undergone transtibial amputation and ambulated with prosthesis were more likely to develop degenerative joint disease in the contralateral extremity than the ipsilateral extremity. The examiner concluded for the reasons set forth, that it was less likely than not that the condition had been aggravated or permanently worsened beyond the natural progression of the disability due to the service-connected chronic strain of the right tibia and fibula. The Board finds the opinions of the VA examiners in January 2017 and March 2016 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current lumbar spine disability and right hip disorder as a result of service, nor are they secondary to the service-connected chronic strain of the right tibia and fibula. The examiners' findings were based on a review of the evidence, including the service treatment records and examination reports, which did not substantiate a finding that the Veteran sustained right hip and lumbar spine disorders in service or as a result of the service connected disability. The examiners considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that his current right hip disorder and lumbar spine disorder, were due to service or the service-connected chronic strain of the right tibia and fibula. Additionally, both VA examiners cited portions of relevant orthopedic medical literature as a rationale for the opinions rendered which did not support the Veteran's contentions, and provided reasoning that is supported by the record. The Board finds these opinions is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Additionally, the opinions are consistent with other evidence of record and are of significant probative value. Conversely, the Board finds the medical opinion submitted by Dr. R.P. does not reflect consideration of the all of the facts. The opinion failed to acknowledge other possible causal factors associated with degeneration of the lumbar spine and right hip, to include the Veteran's age and his medical history of left lower extremity below the knee amputation and its effect on the Veteran's right hip and low back disorders, which according to the competent medical evidence, are significant. As Dr. R.P.'s opinion appears to be based on a faulty history, it is of little probative value. To the extent the Veteran believes that his current lumbar spine disability and right hip disorder are related to service, or the service-connected chronic strain of the right tibia and fibula, as a lay person, the Veteran does not have the specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and/or etiology of the lumbar spine and right hip degenerative changes require medical testing and expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current lumbar spine disability or right hip disorder is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his lumbar spine disabilities is not a competent medical opinion. In summary, there is no competent evidence of arthritis of the lumbar spine or right hip in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2016). Moreover, the most probative and persuasive evidence is against a finding that his current back disability and right hip disorder are related to service or the service connected chronic strain of the right tibia and fibula. Accordingly, the preponderance of the evidence is against the claims, and service connection is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a lumbar spine disability and right hip disability, to include as secondary to the service-connected chronic strain of the right tibia and fibula. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a right hip disorder, to include as secondary to service-connected chronic strain of the right tibia and fibula, is denied. Service connection for a lumbar spine disorder, to include as secondary to service-connected chronic strain of the right tibia and fibula, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs