Citation Nr: 1751608 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-00 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for arthritis of multiple joints (hands, hips, knees, ankles and feet). 2. Entitlement to service connection for a bilateral hip disorder other than arthritis. 3. Entitlement to service connection for a right knee disorder, other than arthritis. 4. Entitlement to service connection for a bilateral ankle disorder, other than arthritis. 5. Entitlement to service connection for a bilateral foot disorder, other than arthritis. 6. Entitlement to service connection for a back disorder. 7. Entitlement to a disability rating greater than 10 percent for arthrotomy, left knee for Osgood-Schlatter disease with scar. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active duty with the United States Army from November 1969 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2009 and March 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference Board hearing held in April 2017. A transcript is of record. The issues of entitlement to an increased evaluation for Osgood-Schlatter disease of the left knee and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On the record at his hearing on April 26, 2017, the Veteran requested a withdrawal of his claim for entitlement to service connection for arthritis of the hands. 2. The Veteran's bilateral hip arthritis, bilateral knee arthritis, bilateral ankle arthrodesis, and lumbar disc disease were not present in service or manifest to a compensable degree within one year of service discharge and are not otherwise related to service or service-connected disability. 3. The Veteran does not have a current bilateral hip disorder other than arthritis. 4. The Veteran does not have a current right knee disorder other than arthritis. 5. The Veteran does not have a bilateral ankle disorder, other than arthritis with arthrodesis. 6. The Veteran does not have a current bilateral foot disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for arthritis of the hands are met. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for arthritis involving the hips, knees, ankles, and feet are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for bilateral hip disorder, other than osteoarthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for bilateral knee disorder, other than arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for bilateral ankle disorder, other than arthritis with arthrodesis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 6. The criteria for service connection for a bilateral foot disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 3.303 (2017). 7. The criteria for service connection for lumbar spine disorder, diagnosed as degenerative disc disease are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal of Withdrawn Claim A veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. In August 2015, the Veteran filed a substantive appeal to the RO's denial of service connection for arthritis of the hands, thus perfecting his appeal to the Board. See Rating Decision dated in March 2013. On April 26, 2017, on the record at his Board hearing, the Veteran requested a withdrawal of this claim. (A written transcript of that hearing has been associated with the claims file.) In view of his expressed desire, further action with regard to the claim for service connection for arthritis of the hands is not appropriate. Accordingly, the Board does not have jurisdiction to review the claim for entitlement to service connection for arthritis of the hands and it is dismissed. II. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in letters dated April 1, 2009, May 3, 2012, October 23, 2012, and February 4, 2013. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). III. Law and Analysis for Service Connection The Veteran is seeking service connection for disorders, including arthritis, involving the hips, knees, ankles, feet and back. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, such as arthritis (degenerative joint/disc disease) may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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 chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, 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 will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran is seeking service connection for chronic disability involving multiple joints. At his April 2017 Board hearing, he testified that he developed arthritis in his hips, knees, ankles, feet, and back as a result of his military duties in radio communications which required moving heavy equipment and carrying heavy gear up and down ladders. Because there is similar medical history and evidence related to these claims, as well as similar disposition of the issues, the Board will address them in a common discussion. Service treatment records show he did not indicate any specific complaints of generalized joint pain, particularly related to his hips, knees, feet, ankles, and back during service. These records do however show that he was treated for an exacerbation of Osgood-Schlatter disease of the left knee for which he eventually underwent surgery. At that time, his complaints and findings were solely confined to the left knee with no specific mention of any other joint. At his separation physical in February 1972, the Veteran reported that he was in fairly good health and made no reference to hip, ankle, knee, feet, or back abnormalities, problems, or impairment of any sort. Clinical evaluation of his all systems was normal. However, service connection was subsequently established for arthrotomy, left knee for Osgood-Schlatter disease left tibial tubercle by a June 1972 rating decision. There is also no evidence of arthritis within one year of separation from his period of active service. However, post-service records, in connection with a claim for Worker's Compensation benefits, show the Veteran sustained severe injury to both lower extremities in a motor vehicle accident in October 1977. See clinical records from Orthopedic Associates, Orthopaedic Associates, PA, and The Rehabilitation Group PA dated from February 1979 to August 1993. Other records show that as a result the Veteran underwent had undergone multiple reconstructive surgeries, including fusion of both ankles. He also had a left total knee replacement for post-traumatic degenerative joint disease in July 2007. See September 2008 medical opinion from A.L. Whaley, Orthopaedic Surgery & Sports Medicine of San Antonio and May 2009 medical opinion from A.K. Angirasa, DPM of The Podiatry Group of South Texas, PA. The next relevant evidence is in 2010 when the Veteran began fairly regular treatment for complaints of pain in the hips, ankles, knees and back. The Rehabilitation Group PA dated November 2010. These treatment records do not suggest that any of the pain originated during military service and there is no indication that the Veteran related it to service or any event of service at that time. In December 2012, the Veteran was afforded a VA examination in connection with his claims. The examiner reviewed the claims file, including service and post-service treatment records, and summarized the findings. He also referred to the Veteran's history of Osgood Schlatter disease of the left knee, the 1977 MVA, and the left total knee replacement in 2007. Also considered were the Veteran's report that following his left knee replacement he developed pain in the hips, knees, ankles, and the back due to an abnormal gait caused by leg length discrepancy. Recent radiological findings showed mild osteoarthritis bilaterally of the hips and right knee as well as bilateral obliteration of the ankle joints by bone and hardware. A MRI of the lumbar spine showed degenerative disc disease at multiple levels with spinal stenosis at L4-5. The examiner noted that there were no records to show complaints for the current claimed conditions prior to 2011 and that there were no records showing problems with the Veteran's feet or chronic foot condition. In fact, the Veteran reported that his limitations were actually with his ankles, not his feet. After reviewing the Veteran's history and conducting an examination, the examiner found no objective clinical evidence of an actual foot disorder. However, with respect to the remaining claimed conditions, the examiner concluded the bilateral hip arthritis, bilateral knee arthritis, bilateral ankle arthrodesis, and lumbar degenerative disc disease were less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner acknowledged that the Veteran's arthritis and disc disease were due to his leg length discrepancy were caused by the left knee replacement surgery. However he found that the Veteran did not undergo knee replacement surgery because of his Osgood-Schlatter disease, but rather because of the nonservice-connected osteoarthritis that was caused by the post-service motor vehicle accident. The examiner explained that Osgood Schlatter disease does not cause osteoarthritis of the knee as they are separate conditions. He further explained that osteoarthritis involves the synovial joint and can be treated with knee replacement, whereas Osgood-Schlatter disease is extra-articular involving the proximal tibia and is not a reason to undergo knee replacement. The examiner concluded that because the Veteran's left knee arthritis is likely due to the motor vehicle accident in 1977 and not Osgood-Schlatter disease, his claimed hip, right knee, ankle, and back arthritis are also not due to the Osgood Schlatter disease. The examiner also concluded that the Osgood-Schlatter disease and arthrotomy of the left knee did not aggravate the multiple joint arthritis and lumbar disc disease beyond their normal progression as the Osgood-Schlatter disease did not alter the Veteran's gait. Based on the foregoing, the Board finds that service connection for the Veteran's diagnosed hip arthritis, knee arthritis, ankle arthrodesis, lumbar disc disease, or a foot disorder is not warranted. In the case of the Veteran's claimed bilateral foot disorder, the primary impediment to a grant of service connection is the absence of medical evidence of a current disability. He has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show any identifiable pathology or actual evidence of a current foot disorder. In fact he acknowledged at his December 2012 VA examination that he did not have a chronic foot disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, in the absence of proof of present disability there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). With respect to the remaining claimed conditions, there is no probative and competent medical evidence of record to indicate that the Veteran's service-connected Osgood-Schlatter disease of the left knee plays any role in the development or worsening of arthritis of the hips, knees, ankles or lumbar disc disease. Although the Veteran walks with an altered gait, this has neither been attributed to his service-connected Osgood-Schlatter disease, nor is there evidence it causes or aggravates his degenerative musculoskeletal conditions. Notably, the single medical opinion on file fails to support the Veteran's claim and is highly probative as it is based upon a complete review of the claims file and supported by an expressed rationale. When providing rationale for the medical opinion, the VA examiner considered the onset and course of the Veteran's degenerative joint and disc disease, the results of clinical evaluation, and his contention that these musculoskeletal disorders were caused or made worse by his service-connected Osgood-Schlatter disease. There is no favorable competent opinion of record, and no other medical evidence of record suggests a such relationship between osteoarthritis and the Veteran's service-connected left knee disability. Absent evidence of a nexus between the claimed condition and the service-connected disability, service connection cannot be granted on a secondary basis. 38 C.F.R. § 3.310; Allen, supra; see also, Wallin, Reiber, supra. With regard to whether the evidence establishes a direct connection between the Veteran's service and his development of degenerative musculoskeletal conditions, as has been noted above, the Veteran denied any such symptoms at service discharge, and pertinent complaints and/or X-ray confirmation of arthritis in any joint do not arise in post-service treatment records until 2010 decades after service, well after one year following his separation from active duty. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Furthermore, there is no competent evidence linking arthritis to the Veteran's military service many years earlier and he has not submitted any medical opinion that relates it to service/events therein. Finally, to the extent the Veteran's statements purport to provide a nexus opinion between his claimed disorders and service and/or service connected disability, the Board notes determining the etiology of degenerative joint and disc disease (as distinguished from merely reporting the presence of symptoms) is not a simple question. Doing so requires knowledge of the complexities of the musculoskeletal system, the potential causes of arthritis and disc disease, and the impact Osgood-Schlatter disease has on various joints, and so is beyond the scope of knowledge of a lay person. In this case, the facts are complex enough that the Veteran's current assertions regarding his symptoms are not sufficient to outweigh the remaining evidence of record. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). In any event, even assuming the Veteran is competent to address the etiology of his arthritis years after service, the probative value of his opinion is outweighed by that of the VA examiner, who clearly does have the expertise, training and education to address such etiology. Accordingly, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107 (b). ORDER The claim for entitlement to service connection for arthritis of the hands is dismissed. Service connection for arthritis of multiple joints of the hips, knees, ankles, and feet is denied. Service connection for a bilateral hip disorder other than arthritis is denied. Service connection for a right knee disorder, other than arthritis is denied. Service connection for a bilateral ankle disorder, other than arthrodesis is denied. Service connection for a bilateral foot disorder, other than arthritis is denied. Service connection for a back disorder is denied. REMAND The Veteran is seeking a disability rating higher than 10 percent for his service-connected arthrotomy, left knee for Osgood-Schlatter disease with scar, which is currently evaluated under DC 5262, for impairment of the tibia and fibula. Review of the claims file reveals that the symptoms he testified to at his 2017 Board hearing indicate a worsening of his left knee disability since his last VA Knee and Lower Leg Conditions examination in December 2012. However it appears that the examination was conducted for primarily for purposes of establishing service connection for arthritis of the knees and did not seem to specifically address symptoms or manifestations relating to the service-connected Osgood-Schlatter disease. The Board finds that it is not entirely adequate for the purpose of determining the proper disability rating. In addition, it appears that the Veteran has additional disability stemming from non-service-connected arthritis of the left knee status post total knee replacement. Any such symptomatology should be differentiated from the Veteran's service-connected Osgood-Schlatter, if possible. See Mittleider v. West, 11 Vet. App. 181 (1998) (The Court requires that when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102 any reasonable doubt on any issue be resolved in the appellant's favor, and that such signs and symptoms be attributed to the service-connected condition.) Finally since the Veteran's disability picture is unresolved, the claim for TDIU is inextricably intertwined with the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of TDIU must be deferred until after completion of the actions requested below. Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain all outstanding VA or non-VA treatment records pertaining to treatment of the Veteran for Osgood-Schlatter of the left knee that are not already associated with the claims file. 2. Then schedule the Veteran for a VA examination by an examiner with appropriate expertise. The electronic claims file must be made accessible to the examiner for review of the case. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). The examiner should indicate whether the Veteran demonstrates malunion of the tibia and fibula, and if so, whether any accompanying knee disability is best described as slight, moderate, or marked. The examiner should discuss the degree to which the Osgood-Schlatter disease of the left knee would impair his ability to be employed. The examiner should describe all pertinent symptomatology and findings associated with the Veteran's service-connected left knee disability. Any disabling manifestations specifically attributable to the Osgood-Schlatters disease of the left knee must be fully outlined and differentiated from symptoms caused by any non-service-connected disorders, particularly left knee arthritis status post total left knee replacement. The examiner should also provide findings (expressed in degrees, with standard ranges provided for comparison purposes) as to the range of motion of the left knee, tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. If the examiner is unable to conduct this testing or concludes that such testing is unnecessary in this case, he or she should clearly explain why this is so for each test that is not performed. He/She should also report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether pain causes effective functional ankylosis. 3. After the above actions are completed, if the decision is adverse to the Veteran, issue a supplement statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs