Citation Nr: 1750009 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 13-24 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for left knee disability to include degenerative joint disease, medial meniscal tear and a Baker's cyst. 2. Entitlement to service connection for a bilateral hip disability to include status post bilateral hip replacements. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2013 the Veteran indicated that he wanted a videoconference hearing. He failed to appear for the hearing scheduled in May 2017. Accordingly, his hearing request is deemed withdrawn. In an October 2017 correspondence, the Veteran's representative indicated that he would outline the Veteran's argument at a hearing before the Board. However, neither the Veteran nor his representative have requested an extension of time to submit additional evidence or argument, and the Board as noted above, the Veteran was scheduled for a Board hearing, failed to appear, and did not request that such hearing be rescheduled. See 38 C.F.R. § 20.1304 (2017). As such, the Board may commence appellate review. FINDINGS OF FACT 1. A left knee condition is not attributable to or related to service. 2. A bilateral hip disability is not attributable to or related to service. CONCLUSION OF LAW 1. A left knee disability was not incurred or aggravated in active service nor may arthritis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. A bilateral hip disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, including arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under section 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a)). Medical evidence is 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends service connection should be established for a left knee condition and bilateral hip disability as due to a parachute incident in which he fell after landing in a tree. The service treatment records (STRs) do not reveal findings of a left knee condition or bilateral hip disability. Further, the Veteran's STRs include almost monthly visits to military medical facilities for treatments of various ailments. His October 1983 entrance examination and December 1985 separation examination yielded normal findings for the lower extremities and musculoskeletal conditions. Post-service, in December 2010, the Veteran reported that he had bilateral hip pain for the last six months without any injury or previous surgeries. Surgery was recommended and in January 2011 the Veteran had a left hip joint replacement and in March 2012 he had a right hip joint replacement. An April 2011 progress note revealed that the Veteran was walking with a normal gait and was working after his left total hip arthroscopy. A June 2011 VA treatment record documents problems with left knee pain and swelling. It was noted that there was no prior history of left knee injury. A July 2011 x-ray revealed early changes likely due to degenerative joint disease. A December 2011 MRI revealed a medial meniscus tear and Baker's cyst. In a letter received in June 2011, the Veteran stated that his first jump with his unit resulted in him landing in a tree. He fell from the tree and hurt his left groin area. He reported his fall to his squad leader, but was not allowed to go to sick call. In March 2013, the Veteran was afforded a Disability Benefits Questionnaire (DBQ) for hip and thigh conditions. He was diagnosed with bilateral avascular necrosis of the femoral heads with advanced collapse and bilateral total hip arthroplasty. The Veteran reported a night-time parachute jump injury that occurred in 1983. He stated that he landed in a tree and dropped to the ground injuring his hip joints and left knee. He never sought treatment for his injuries and reported that physical activity aggravated his injuries. The Veteran had less movement of the bilateral hips than normal and reported pain on movement. He did not have pain to palpitation of the joints or soft tissue of either hip. Muscle strength testing was normal. The Veteran had a left hip joint replacement in January 2011 and a right hip joint replacement in March 2012. He reported pain with excessive standing or walking. The VA examiner reviewed the Veteran's claims file. The examiner opined that it was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness as avascular necrosis occurs when blood flow to a bone is interrupted or reduced, which may be caused by a joint injury such as the fall reported by the Veteran. Many people have no symptoms in the early stages of avascular necrosis of the bone and as the disease worsens, the joint may require replacement. In March 2013, the Veteran was afforded a DBQ for knee and lower leg conditions. He was diagnosed with a left knee strain in 2013, a medial meniscus tear of the left knee, and a Baker's cyst of the left knee. The Veteran reported that he fell from a tree during a parachute exercise in 1983 and injured his knee, but did not seek treatment. He had less movement than normal in his left knee and reported pain on movement. His muscle strength and bilateral stability were normal. An imaging study revealed that the Veteran did not have degenerative or traumatic arthritis of the left knee. The VA examiner reviewed the Veteran's claims file. The examiner opined that it was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness as knee joint injuries such as the fall reported, may have increased the risk of developing chronic strain, Baker's cyst, and medial meniscus tear. An addendum opinion was obtained in August 2013. The examiner was an expert in airborne injuries as he evaluated and treated numerous parachute landing fall injuries while serving as a trauma surgeon in an airborne unit. The VA examiner reviewed the Veteran's claims file. The examiner opined that the Veteran's paratrooper activities did not cause, or result in, his bilateral hip conditions or his left knee strain/meniscus conditions as the STRs were silent for any parachute landing fall injuries to the lower extremities. His STRs documented a host of other orthopedic injuries and complaints while on active duty, including the following: back pain in March 1983, left leg pain in March 1984, bruises in July 1984, a jammed toe in November 1984, shin splints in April 1985, boxer's fracture in August 1985, an ankle sprain in October 1985, and so on, which countered the Veteran's contention that he was denied medical care for orthopedic complaints. The VA examiner opined that the March 2013 VA examiner's opinions did not carry weight as they were not supported by a STR history, but instead the subjective history provided by the Veteran. Furthermore, it is clinically well-known that trauma induced hip avascular necrosis presents within weeks or months of the injury, not almost thirty years later. The examiner stated that the March examiner's rationale for avascular necrosis held no medical merit because of the reasons above. The Board also notes that in December 2010, the Veteran reported a 6-month history of left hip and knee pain without history of trauma. In his August 2013 substantive appeal, the Veteran stated that the problems with his bilateral hips and left knee had been ongoing since his 1983 accident. The Veteran noted that he did not report the injuries because his squad leader did not let him go to sick call. He reported that he had ongoing pain since. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the August 2013 examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. Further, the examiner is an expert in the field of parachute landing fall injuries. The Board therefore attaches great probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to and review of the background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The March 2013 examinations are afforded little probative weight as the examiner opined only that the fall may have increased the risk of developing left knee chronic strain, Baker's cyst, and medial meniscus tear. An award of service connection must be based on reliable competent evidence and conjectural or speculative opinions as to some remote possibility of such relationship are insufficient. See 38 C.F.R. § 3.102; Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that Veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative to be sufficient medical nexus evidence). Further, the March 2013 examiner stated that many people have no symptoms in the early stages of avascular necrosis of the bone and as the disease worsens, the joint may require replacement, which contradicts the rationale provided by the August 2013 examiner, an expert in his field, which stated that it is clinically well-known that trauma induced hip avascular necrosis presents within weeks or months of the injury, not almost thirty years later. The Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate because other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). As a result, the Board assigns the August 2013 VA opinion great probative weight, as it was based on examination of the Veteran, the Veteran's record, and included a compelling rationale for the conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 279, 284 (1997). The Board has considered the Veteran's own opinion that his left knee condition and bilateral hip disability are due to a parachute fall in 1983. 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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature". Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, as to the diagnosis of degenerative joint disease and the Veteran's allegation of left knee symptomatology since service, the Board does not find this assertion to be consistent with or supported by the contemporaneous record. In this regard, there are numerous entries regarding other orthopedic disabilities in the Veteran's STRs which significantly diminish the probative value of his statements that he was not permitted to seek medical attention for serious injuries to the hips and left knee after a fall. Moreover, his separation examination is negative for any complaints, or notations regarding injuries to those joints, there are no complaints or treatment for such disorders for years after service, and in 2010 the Veteran reported the acute onset of left knee and hip pain as six months earlier. Thus, there is no basis for awarding service connection for any degenerative joint disease of the left knee based on continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, the most persuasive and probative evidence of record, the August 2013 VA medical opinion, discounted any relationship between the Veteran's report of recurrent left knee complaints to any current left knee diagnosis. There is no evidence to the contrary of equal probative weight. Thus, the Veteran's opinion is outweighed by the findings to the contrary by the August 2013 VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most probative evidence establishes that a left knee disability and bilateral hip disability are not related to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a bilateral hip disability is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs