Citation Nr: 1752095 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-23 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a traumatic brain injury (TBI). 4. Entitlement to service connection for left hand numbness. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Navy from February 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board previously considered this matter in July 2016 and remanded the issues identified above for additional evidentiary development. Specifically, the Board asked the RO to ask the Veteran to provide additional private treatment records and correspondence from his treating physicians, to notify the Veteran of the unavailability of certain VA treatment records in Portland, Oregon, and to attempt to obtain additional VA medical records. Finally, the Board instructed the RO to schedule the Veteran for a medical examination relating to his claim for service connection of a right hip disorder. In correspondence from October 2016, the RO informed the Veteran of the unavailability of the Portland VA medical center records identified in the remand directives and asked him to provide information relating to the private treatment records identified in those directives. However, the record does not indicate that the Veteran has responded to this development request. The Veteran was also afforded a VA medical examination relating to his left hip in October 2016. Ultimately, the Board is satisfied that there has been substantial compliance with its July 2016 remand directives. See Stegall v. West, 11 Vet. App 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The Veteran's left hip disability did not arise in and is not otherwise etiologically related to his active duty service. 2. The Veteran's current right knee disability did not arise in and is not otherwise etiologically related to his active duty service. 3. The Veteran does not have a current diagnosis of a TBI. 4. The Veteran does not have a current diagnosis associated with his reports of left hand numbness. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). 3. The criteria for service connection for a TBI have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). 4. The criteria for service connection for a disability associated with left hand numbness have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. I. Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For certain chronic diseases, such as hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). II. Left Hip Disorder The Board notes at the outset that there is no question that the Veteran has a current diagnosis of a left hip disability. For instance, the October 2016 VA medical examiner examined the Veteran's and provided a diagnosis of osteoarthritis in each of his hips. The Veteran has also repeatedly contended that his left hip arthritis first began when he fell down a hatch on active duty in 1969. The Veteran's service treatment records verify that the Veteran sustained such a fall while serving on active duty. As there is competent and probative evidence of both a current left hip disability and an in-service event that is alleged to have caused this disability, the Board will then turn to the central question of whether or not the Veteran's left hip arthritis is etiologically related to his active duty service, to include his fall in September 1969. Although the Veteran has repeatedly contended that his hip was injured in his 1969 fall, a review of the service treatment records associated with that accident do not include any evidence of any complaints, symptoms, or clinical abnormalities associated with the Veteran's left hip or leg. The service records instead indicate the Veteran received treatment for symptoms relating to his right knee immediately after this in-service accident. The Board also notes that the Veteran's separation exam was silent for any reports of abnormalities with the Veteran's lower extremities. The Veteran is competent to report the observable symptoms of pain in his left hip and to report on the history of these symptoms. However, the record does not contain any evidence that the Veteran possesses the medical knowledge, training, or expertise to provide an opinion regarding the cause of his left hip disability. The absence of any reports of left hip abnormalities or complaints in the specific treatment records that relate to the accident that the Veteran contends caused his left hip disability also reduces the credibility of his statements that he injured his left hip in his September 1969 fall and reduces the probative weight that may be given to his statements regarding the etiology of his current left hip disability and the chronicity of any symptoms relating to this condition. Post-service treatment records do include numerous statements by the Veteran's treating physicians suggesting that there was some connection between the Veteran's left hip disability and his active duty service. For instance, Dr. B.W. indicated in a January 1985 letter that the Veteran's history includes an injury to his knee "and possibly to his left hip area while on duty in Vietnam in 1969." This physician also indicated that x-ray images of this joint indicated a mild arthritic condition in the left hip which was "old and probably not related directly to the present illness." In correspondence from May of 1985, this doctor also reported that the Veteran had significant arthritis of the left hip which "apparently stems from" an injury while in service. The record also includes a November 1986 statement from another treating physician indicating the Veteran had "symptomatic osteoarthritis of the left hip originally from an old military accident." In November 1987, Dr. B.W. ultimately opined that the Veteran's left hip injury pre-existed his on-the-job injury that Dr. B.W. treated. Although the record does not indicate that the Veteran is able to provide a competent medical opinion regarding the etiology of his left hip osteoarthritis, these treating physicians do possess the requisite knowledge and expertise to comment on the etiology and onset of the Veteran's left hip disability. The Board notes, however, that the opinions contain fairly couched and conclusory language that indicates that the Veteran's osteoarthritis was caused by an injury sustained in service. The record does not indicate that any of these treating clinicians had the opportunity to review the actual service treatment records relating to this incident and none has provided any extensive or persuasive reasoning explaining why the Veteran's left hip disability was caused by the 1969 fall. Similarly, they have not commented on the in-service treatment notes relating to that 1969 fall, which fail to document any complaints of or treatment of a hip condition. As such, the Board finds that these treating physician statements are not entitled to significant probative weight. To further evaluate the Veteran's claim, he was afforded a VA medical examination in October 2016 to determine the nature and etiology of any current left hip disability. As indicated above, the physician who conducted this examination diagnosed the Veteran with osteoarthritis in each of his hips. Unlike the Veteran's treating clinicians, the record also indicates that this clinician was able to review the Veteran's service treatment records. After conducting a detailed physical evaluation and taking a history of the Veteran's left hip disability, this physician opined that it was less likely than not that this disability was incurred in or caused by the claimed in-service injury, event, or illness. In contrast to the statements by treating physicians discussed above, this VA examiner provided a detailed rationale for his opinion that the Veteran's left hip arthritis was not related to his active duty service. She indicated that the service treatment records were silent for evidence of a left hip injury or for pain, complaints, or treatment for an illness in that joint and highlighted that the only injury reported in the Veteran's clinical service records relate to the Veteran's right knee. The VA examiner also explained that the Veteran was discharged as fit for duty two months after the 1969 fall. Likewise, the October 2016 VA examiner indicated that the Veteran also engaged in a physically demanding job after his active duty service that would put great strain on his hips and that the clinical records in fact show the development of arthritis in each of the Veteran's hips. She indicated that this demanding physical post-service job was the most likely cause for the development of the Veteran's bilateral hip disability. Finally, this clinician addressed the statements of the Veteran's treating clinicians suggesting that the left hip disability was caused by the Veteran's service and noted that these statements were "simply based on history provided by" the Veteran. The Board finds that this opinion evidence has the most probative value in the instant appeal. It was given after a thorough physical evaluation and review of the Veteran's service and post-service treatment records and was provided by a physician who is competent to provide an opinion regarding the onset and etiology of the Veteran's current left hip osteoarthritis. It also is accompanied by a detailed and persuasive rationale, as described above. Accordingly, the Board finds that the preponderance of the probative and competent evidence of record indicates that the Veteran's left hip arthritis most likely was caused by his post-service job as a firefighter rather than his September 1969 fall while serving on active duty service. As this evidence indicates that the Veteran's arthritis in this joint did not first manifest to a compensable degree in the year following his separation from active duty service, the Board must find that the criteria for service connection for a left hip disability have not been met and his claim must be denied. As the preponderance of the probative evidence of record is against his claim, the doctrine of the benefit of the doubt is not for application in this matter. III. Right Knee Disorder As was the case with the issue of entitlement to service connection for a left hip disability, the Veteran also attended a VA examination to determine the nature and etiology of any current right knee disability. That August 2015 VA examination report confirms that the Veteran has a present disability of patellofemoral pain syndrome in the right knee. There is also no doubt that the Veteran sustained a fall in September 1969 while serving on active duty and the Veteran has repeatedly contended that his current right knee symptoms stem from that in-service event. As such, the Board will consider the central question in this claim of whether or not the Veteran's current right knee disability is related to his 1969 in-service fall. The Board notes that the Veteran is competent to report on his observable symptoms of pain in his right knee and to report on the onset and chronology of symptoms in this joint. However, like his statements regarding the onset and etiology of his left hip arthritis, the Board does not find that he has the requisite medical knowledge or expertise to provide a competent opinion on the complex medical question of whether or not his 1969 fall caused his current right knee disability. Similarly, numerous statements from 2002 to a treating physician would appear to contradict the assertion that the Veteran's right knee symptoms have occurred continuously since the 1969 fall. Specifically, private treatment records from November 2002 include repeated statements from the Veteran that his right knee pain was present only for the prior three to four months, although he did report an injury to the knee in the Navy at that time. This discrepancy reduces the probative valuate of any assertion that the Veteran's right knee symptoms have been continuous since his in-service fall. With respect to the opinion evidence in this case, the Board observes that there are no opinions by any medical professional indicating the Veteran's current right knee symptoms are attributable to his September 1969 in-service fall. As noted above, the Veteran attended a medical examination in August 2015 provided by a VA physician. That clinician took a full medical history, reviewed the Veteran's medical and service treatment records, and ultimately opined that it was less likely than not that the Veteran's current right knee disability was incurred in or caused by the in-service fall the Veteran sustained on active duty in September 1969. In support of this opinion, the examiner noted that the x-ray images taken after that fall reportedly failed to indicate any evidence of a fracture in this joint and that a November 1969 x-ray report was noted to be negative for injury. Similarly, the August 2015 VA examiner indicated that the Veteran's post-service employment was very physical in nature, that a January 1985 private orthopedic evaluation included a report of a normal right knee without a diagnosis of a knee condition, and that a November 2002 VA treatment note included reports of right knee symptoms for only three to four months. The Board ultimately finds that this August 2015 VA examiner's opinion is the most probative with respect to the issue of whether the Veteran's in-service injury caused his current right knee disability. The examiner who provided the opinion is a physician who has the necessary medical knowledge and training to provide a competent statement regarding the onset and etiology of the Veteran's orthopedic condition and provided a clear and persuasive rationale in support of the opinion with citation to the Veteran's in-service and post-service medical records. As the preponderance of the competent and probative evidence of record weighs against a finding that there is a nexus between the Veteran's September 1969 fall and his current right knee disability or that it first manifested to a compensable degree in the year following his active duty service, the Board must find that the elements for service connection for this disability have not been met and the doctrine of the benefit of the doubt is not applicable in this matter. IV. TBI In addition to the Veteran's left hip and right knee disabilities, the Veteran has also contended that he sustained a TBI in his September 1969 in-service fall and injury. Although the Board does not doubt the sincerity of the Veteran's belief, the Board does not find that he has the medical training or experience to provide a competent opinion on the complex medical question of whether or not his September 1969 injury and any subsequent symptoms satisfy the diagnostic criteria of a TBI. The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, a review of the Veteran's service treatment records does not uncover any complaints, treatment, or diagnosis of a TBI. Rather, the Veteran's separation examination appears to be entirely normal and the clinician who evaluated the Veteran provided no notation indicating that the Veteran presented with any signs or symptoms that would indicate the Veteran had a TBI at that time. The Veteran's post-service private and VA treatment records also fail to include any evidence that the Veteran has been diagnosed with a TBI, and a November 2006 CT scan of the Veteran's head was reportedly normal. Ultimately, the record is simply devoid of any competent evidence that the Veteran has had a current disability of a TBI at any point since he filed his claim for service connection for this disability. Therefore, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for a TBI. As such, there is no reasonable doubt to be resolved and the claim must be denied V. Left Hand Numbness Like the other disabilities on appeal, the Veteran attributes current symptoms of left hand numbness to the September 1969 fall he sustained while serving on active duty. However, as was the case with the Veteran's TBI, the record does not indicate that the Veteran has the expertise to render a competent opinion regarding the complex medical question of whether symptoms of left hand numbness satisfy the diagnostic criteria of any disability. The Board also notes that the record contains some inconsistencies regarding the onset and continuity of any symptoms of left hand numbness. In statements made to VA in the course of the Veteran's appeal for service connection for these symptoms, including at an informal conference with a decision review officer in January 2013, the Veteran has indicated that his left hand symptoms began in service due to his September 1969 fall and have been present ever since. A November 1987 private treatment record does include a report of decreased sensation in the Veteran's hands after lifting a snowmobile in November 1984. Notably, this record suggests that the abnormal sensation in the Veteran's hands after that November 1984 incident resolved rapidly. This documentation of a quick resolution of any sensation abnormalities in the Veteran's hands reduces the credibility of his contentions that these symptoms have persisted since service. Subsequent private and VA treatment records are largely silent of any complaints of abnormal sensation or numbness in the Veteran's left hand. Of particular note, the record indicates that the Veteran attended an Agent Orange registry examination in October 2010 whereat the Veteran reportedly denied symptoms of paralysis or change in sensation. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C.A. § 1110; see also Brammer, supra. Here, the record ultimately does not contain any competent evidence of a left hand disability associated with the Veteran's reports of left hand numbness. As such, the Board does not find that the elements for a service connection claim for those symptoms have been satisfied and there is no reasonable doubt to resolve in the Veteran's favor. Thus, his claim must be denied. VI. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). Here, the Veteran was provided with the relevant notice and information in an October 2008 letter. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). He has not alleged any notice deficiency during the adjudication of his claims. Shinseki v. Sanders, 556 U.S. 396 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a medical examination in August 2015 relating to his claim for service connection of a knee condition and an October 2016 medical examination relating to his claim of service connection for a hip disability. The Board recognizes that the Veteran has not been provided a medical examination for his other service connection claims. VA's duties to provide such an examination are triggered when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant's service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, the Board does not find that there is competent evidence of any current disability of a TBI or any competent or credible evidence of left hand numbness or recurrent symptoms of the same. Similarly, there is no competent evidence that either a TBI or left hand numbness may be associated with the Veteran's active duty service. As such, the Board does not find that a VA exam is required with respect to the Veteran's service connection claims for those disabilities. ORDER Service connection for a left hip disorder is denied. Service connection for a right hip disorder is denied. Service connection for a TBI is denied. Service connection for a disability associated with left hand numbness is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs