Citation Nr: 1751158 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-34 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right arm disorder. 2. Entitlement to service connection for hyperthyroidism. 3. Entitlement to service connection for a bilateral knee disorder. 4. Entitlement to service connection for a bilateral hip disorder. 5. Entitlement to an increased (compensable) disability evaluation for ruptured left Achilles tendon prior April 27, 2017, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran had active service from September 1980 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The Veteran appeared at a videoconference hearing at the RO before the undersigned Veterans Law Judge in December 2013. A transcript of the hearing is of record. When this case was recently before the Board in March 2017, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. During the pendency of this appeal, in a June 2017 rating decision, the evaluation of the left Achilles tendon was increased to 10 percent, effective April 27, 2017. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has reviewed these systems to ensure a complete assessment of the evidence. The issues of entitlement to service connection for bilateral knee and bilateral hip disorders are addressed below; all other issues on appeal are addressed in the REMAND portion of the decision and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A bilateral knee disorder was not shown in service or for many years thereafter, has not been shown to be etiologically related to a service-connected disorder, and has not been shown to be related to service. 2. A bilateral hip disorder was not shown in service or for many years thereafter, has not been shown to be etiologically related to a service-connected disorder, and has not been shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for a bilateral hip disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). These claims were remanded in March 2017 to obtain outstanding VA medical records and obtain addendum VA opinions. Subsequently, additional VA treatment records were added to the electronic record, and addendum opinions were received in April 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 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) competent 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) competent 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a), which include arthritis, service connection will be presumed under 38 C.F.R. § 3.303(b) where there are either chronic symptoms shown in service or continuous symptoms since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection also may be granted on a presumptive basis for certain chronic diseases, including arthritis, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a) (3), 3.309(a). Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability. 38 C.F.R. § 3.310 (2016). Bilateral Knee Disorder In this case, VA examination records show diagnoses of right knee joint osteoarthritis and knee arthralgia. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, the Veteran asserts that his bilateral knee disability is secondary to his service-connected degenerative joint disease (DJD) of the lumbar spine and service-connected foot disabilities (ruptured left Achilles tendon and bilateral heel spurs). Moreover, service treatment records show that in July 1984 the Veteran had a left knee injury while playing basketball and was diagnosed with left knee effusion. Accordingly, Hickson element (2) is at least arguably met. A private treatment record in September 2010 showed an opinion from Dr. D.W. that knee degeneration was more likely than not related to the Veteran's time in service. Dr. D.W. stated that the Veteran's condition developed over many years of repetitive injuries to his lower extremities and back; the stress to the knees and ankles over time caused accelerated degenerative of the joints and was complicated by the repeated injuries to his left Achilles tendon. Dr. D.W. stated that over time the injuries caused an imbalance in his normal gait, putting unequal pressure and wear to the knees and lumbar spine; these imbalances could cause swelling, joint deterioration, and chronic pain. Dr. D.W. opined that the condition began while serving in the military and "a majority of [the Veteran's] current condition can be linked directly with his Achilles tendon injuries and the repetitive stress injuries of serving in the US Army." In regards to the September 2010 private opinion, the Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is obligated to analyze the credibility and probative value of all evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. Meyer v. Brown, 9 Vet. App. 425 (1996); Eddy v. Brown, 9 Vet. App. 52 (1996); Gabrielson, 7 Vet. App. 36; Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson, 2 Vet. App. at 618; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). The Board finds that the September 2010 private opinion does not carry significant weight as the opinion contained conflicting and vague rationale for the conclusions reached. That is, Dr. D.W. simultaneously stated that the Veteran's "condition" began while serving in the military and developed over many years of repetitive injuries to his lower extremities and back. Moreover, Dr. D.W. stated in speculative terms that "a majority of [the Veteran's] current condition can be linked directly with his Achilles tendon injuries and the repetitive stress injuries of serving in the US Army." The U.S. Court of Appeals for Veterans Claims has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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."). As such, this opinion does not carry significant weight. In response to the Board's March 2017 remand, the Veteran was afforded a VA examination in April 2017 in which the examiner stated that there was no abnormal gait or leg length discrepancy. The VA examiner stated that there would be no expected connection between this claimed knee condition and the Veteran's service-connected back or foot/ankle conditions; it was less likely than not secondarily connected or aggravated beyond normal expectations. The VA examiner noted that there were normal examinations in 1992 and 1993 and that the current examination showed that the left knee was normal. The VA examiner stated that there was no evidence of an ongoing left knee disability; however, a right knee injury was noted from 1996, after active duty service. The examiner stated that the right knee osteoarthritis noted on the current examination was considered the result of that 1996 injury and not related to either any direct active duty condition or to the service-connected foot/ankle/back conditions (less likely than not secondarily connected/caused or aggravated beyond normal expectations). In this case, as to the issue of the etiology of the Veteran's claimed bilateral knee disorder, the Board finds that the April 2017 VA examination report to be the most probative evidence of record as it was based upon a review of the claims file, examination and interview of the Veteran, and opinion with rationale was provided. The Board finds that the VA examiner made it clear that it was his opinion that the Veteran's diagnosed bilateral knee disorders were not related to military service or to his service-connected back and foot disabilities. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Here, the VA examiner made it clear that the claimed bilateral knee disorder was not related to service or to the service-connected back and foot disabilities. Accordingly, the Board concludes that the VA opinion carries significant weight. No other competent or probative opinion providing a positive nexus between service and the Veteran's claimed bilateral knee disorders has been presented. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his bilateral knee disorders are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2016) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of a bilateral knee disorder, as the causative factors for such are not readily subject to lay observation. Therefore, the Veteran's claims that his bilateral knee disorder was etiologically related to service are outweighed by the competent and probative medical opinion. See Barr, 21 Vet. App. 303; Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the to the VA examiner opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by licensed medical professionals. Therefore a nexus between service and the Veteran's claimed bilateral knee disorder cannot be established, and the criteria of Hickson element (3) are not met. With regards to presumptive service connection for arthritis, the weight of the evidence shows no chronic symptoms of arthritis during service, no continuous symptoms of arthritis since service, and that the arthritis diagnosed above did not manifest to a compensable degree within one year of service. To this point, service treatment records are absent for any showing of chronic symptoms, testing, or diagnosis for arthritis, and the first mention of arthritis in the record is not until years after service. As such, presumptive service connection is not warranted. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). Bilateral Hip Disorder In this case, VA examination records show diagnoses of DJD of the bilateral hips. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, the Veteran asserts that his DJD of the bilateral hips is secondary to his service-connected DJD of the lumbar spine and service-connected foot disabilities. Accordingly, Hickson element (2) is at least arguably met. The Veteran was afforded a VA examination in September 2009 in which the examiner stated that the bilateral hip condition was less likely as not caused by or a result of the Veteran's service-connected lumbar spine DJD as there was no nexus of the bilateral hips to the lumbar spine arthritis. In response to the Board's March 2017 remand, the Veteran was afforded a VA examination in April 2017 in which the examiner stated that there was no evidence for evaluation of or treatment for this condition in the service treatment records. There was no abnormal gait or leg length discrepancy. The examiner stated that there would be no expected connection between this condition and the service-connected back or foot/ankle conditions (less likely than not secondarily connected or aggravated beyond normal expectations). It was noted that examinations in 1992 and 1993 revealed normal hips. The examiner stated that age, use, and weight would be considered the more likely etiologic factors in any bilateral hip conditions claimed; therefore, it was less likely than not that any claimed hip condition had its onset in service or was secondary/cause by or aggravated by the service-connected back, left ankle, or heel conditions. In this case, as to the issue of the etiology of the Veteran's bilateral hip disorder, the Board finds that the April 2017 VA examination report to be the most probative evidence of record as it was based upon a review of the claims file, examination and interview of the Veteran, and opinion with rationale was provided. The examiner indicated that the bilateral hip disorder was not related to active service or to the service-connected back and foot disabilities. The Board finds that the VA examiner made it clear that it was his opinion that a bilateral hip disorder was not related to service but was more likely related to age, use, and weight. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo, 25 Vet. App. 286, 294. Accordingly, the Board concludes that the VA opinion carries significant weight. No other competent opinion providing a positive nexus between service and the Veteran's bilateral hip disorder has been presented. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his bilateral hip disability is related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2016) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of the bilateral hip disability, as the causative factors for such are not readily subject to lay observation. Therefore, the Veteran's claims that his bilateral hip disability was etiologically related to service are outweighed by the competent and probative medical opinion. See Barr, 21 Vet. App. 303; Charles, 16 Vet. App. 370, 374-75; Layno, 6 Vet. App. 465. The Board finds the to the VA examiner opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by licensed medical professionals. Therefore a nexus between service and the Veteran's bilateral hip disability cannot be established, and the criteria of Hickson element (3) are not met. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b) (West 2014). ORDER Service connection for a bilateral knee disorder is denied. Service connection for a bilateral hip disorder is denied. REMAND Right Arm Disorder In response to the Board's remand, the Veteran was afforded a VA examination in April 2017 in which the examiner noted a diagnosis of left olecranon bursitis in 2010. (The Board notes that a previous VA examination in May 2014 noted a diagnosis of right olecranon bursitis.) The examiner stated that there was no investigation of or treatment for this condition since 2010, service treatment records were silent for this condition, and the examination was normal. The examiner stated that it was less likely than not that there was a chronic disabling elbow condition based on examination and record review. As noted by the Board in the March 2017 remand, in January 2015 correspondence to VA, the Veteran stated that he had a right wrist injury in service on July 2, 1981, and that his right arm disability started the same day. Service treatment records show that the Veteran was seen with right wrist problems in service in July 1981. The Board finds that clarification is required from the April 2017 VA examiner; namely, the examiner should address the July 1981 in-service complaint. See Stegall, 11 Vet. App. 268. As such, an addendum opinion should be sought on remand. Hyperthyroidism In response to the Board's remand, the Veteran was afforded a VA examination in April 2017 in which the examiner noted a diagnosis of hypothyroid endocrine dysfunction and stated that there was no evidence to support a diagnosis of hypothyroidism while on active duty. The examiner noted an April 1990 evaluation for a syncopal episode that included a thyroid evaluation, the results of which were normal blood tests. The examiner stated that there was no further evaluation of the thyroid between this 1990 episode and the 2005 diagnosis of a goiter. The examiner opined that the thyroid condition did not have (less likely than not) onset in a period of service. The Board finds that clarification is required from the April 2017 VA examiner; namely, the Veteran is claiming entitlement to service connection for hyperthyroidism as was noted by the Board in the March 2017 remand; however, hypothyroidism was inadvertently entered in the remand directives. Accordingly, an opinion is required regarding whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hyperthyroidism is related to the Veteran's period of service. As such, an addendum opinion should be sought on remand. Ruptured Left Achilles Tendon In response to the Board's remand, the Veteran was afforded VA examinations in April 2017 in which the examiner noted that he had pain with walking and no flare ups. The examiner noted no pain on physical examination as the Veteran was improved clinically at the time; however, pain on weight-bearing, disturbance of locomotion, and interference with standing was noted with the "side affected" not indicated. Moreover, the Veteran argues in a September 2017 brief that VA examination did not consider his reports of increased functional impairment that presented as instability, guarding, and stiffness with pain as well as flare ups. For these reasons, a new examination is necessary. Barr, 21 Vet. App. 303, 312 (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Provide access to the electronic claims file to the same VA examiner who conducted the April 2017 VA examination, and request that he review the record and provide an opinion as to the following: a.) whether the Veteran has a diagnosis of left, right, or bilateral olecranon bursitis. b.) whether it is at least as likely as not (50 percent probability or greater) that the diagnosed elbow olecranon bursitis had its onset in service or is otherwise related to the Veteran's period of service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, to include a discussion of the service treatment records showing that the Veteran was seen with right wrist problems in service in July 1981. The Veteran has asserted that he had a right wrist injury in July 1981 and that his right arm disability started the same day. If the April 2017 examiner is unavailable, access to the claims file should be provided to another appropriate examiner who should be requested to provide the required information. 2. Provide access to the electronic claims file to the same VA examiner who conducted the April 2017 VA examination, and request that he review the record and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hyperthyroidism is related to or had onset during the Veteran's period of service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, to include a discussion of the Veteran's testimony as to having had continuous symptoms since service. If the April 2017 examiner is unavailable, access to the claims file should be provided to another appropriate examiner who should be requested to provide the required information. 3. Schedule a VA examination in order to determine the current severity of the service-connected ruptured left Achilles tendon. Access to the electronic claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The examination should include testing for pain in active motion, passive motion, weightbearing and non-weightbearing for the joint in question. The examiner should provide information concerning where the Veteran experiences pain during range of motion testing, and if so, at which degree limitation of motion due to pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A rationale should be provided for all opinions expressed. 4. Upon completion of the examinations and addendum opinions ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the AOJ must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs