Citation Nr: 1752469 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-35 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to an initial compensable rating for residual left knee scar, rated under Diagnostic Code 7802. 6. Entitlement to a rating in excess of 10 percent for residual left knee scar, rated under Diagnostic Code 7804. 7. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from February 1966 to January 1968. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in March 2017. This matter was originally on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan, Puerto Rico. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2017). FINDINGS OF FACT 1. A chronic psychiatric disability was not manifested during service and is not shown to be related to active service or to service-connected disability. 2. A chronic right knee disability was not manifested during service and is not shown to be related to active service or to service-connected disability; right knee arthritis was not manifested within a year of separation from service. 3. A chronic bilateral hip disability was not manifested during service and is not shown to be related to active service or to service-connected disability; bilateral hip arthritis was not manifested within a year of separation from service. 4. A chronic lumbar spine disability was not manifested during service and is not shown to be related to active service or to service-connected disability; lumbar spine arthritis was not manifested within a year of separation from service. 5. The Veteran's left knee scar is painful; it is not deep and nonlinear, and does not involve three or four scars. 6. The Veteran does not meet the schedular criteria for entitlement to TDIU at any point during the appeal period; the competent evidence does not demonstrate that the Veteran's service-connected disability alone renders him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. CONCLUSIONS OF LAW 1. The Veteran's depressive disorder was not incurred in or aggravated by service and is not causally related to service-connected disability. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. A chronic right knee disability was not incurred in or aggravated by service and is not causally related to service-connected disability; right knee arthritis may not be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. A chronic bilateral hip disability was not incurred in or aggravated by service and is not causally related to service-connected disability; bilateral hip arthritis may not be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. A chronic lumbar spine disability was not incurred in or aggravated by service and is not causally related to service-connected disability; lumbar spine arthritis may not be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. The criteria for an evaluation in excess of 10 percent for left knee scar have not been met. 38 U.S.C.A. §§ 1155, 4.1, 4.7 (West 2014); 38 C.F.R. §§ 4.118, Diagnostic Codes 7802, 7804 (2017). 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's March 2017 Remand, the Appeals Management Center (AMC) obtained outstanding VA treatment records from November 2011 to 2017, scheduled VA examinations to determine etiology of the Veteran's current psychiatric, right knee, bilateral hip, and back disorders as well as to determine the current severity of the Veteran's service-connected left knee scar disabilities, readjudicated the Veteran's claim, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's March 2017 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The first question that must be addressed, therefore, is whether there is competent and credible evidence of a chronic psychiatric disorder, a chronic right knee disorder, a chronic hip disorder, or a chronic back disorder during service. The service treatment records are absent complaints, findings or diagnoses of any psychiatric, right knee, hip, or back problems during service. On the clinical examination for separation from service in November 1967, the Veteran's lower extremities and spine were evaluated as normal. No defects or diagnoses were noted by the examiner. Further, on the Report of Medical History completed by the Veteran in conjunction with his separation physical, he denied ever having arthritis or rheumatism; bone, joint, or other deformity; lameness; "trick" or locked knee; depression or excessive worry; nervous trouble of any sort. Thus, there is no medical evidence that shows that the Veteran suffered from a chronic right knee disorder, a chronic hip disorder, or a chronic back disorder during service. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Arthritis can be service-connected on such a basis. However, the first showing of right knee, bilateral hip, and lumbar spine arthritis was not within the year of the Veteran's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. A right knee, bilateral hip, or lumbar spine condition was not noted during service. In addition, in September 1973, the Veteran filed his initial application for compensation for a left knee disability evidencing his awareness that he could apply for VA benefits for service related disabilities. At that time he did not file a claim for service connection for a right knee, bilateral hip, or lumbar spine condition. This is inconsistent with any assertion that a right knee, hip, or lumbar spine condition had existed since service because it is reasonable to conclude that if he believed that he had a right knee, hip, or lumbar spine condition in 1973 that was related to service, he would have claimed service connection for it at that time. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, the Veteran has been diagnosed as having unspecified depressive disorder, right knee degenerative joint disease, bilateral hip degenerative joint disease, and degenerative arthritis of the thoracolumbar spine. The remaining question, therefore, is whether there is medical evidence of a relationship between a current disability and the Veteran's active duty service or service-connected disability. In support of his claim, the Veteran has submitted a May 6, 2010, letter from Dr. Ortiz Valentin which states, [The Veteran] presents right knee pain and instability recurrent episodes of "locking" and has clicking and catching in his knee. His knee get swollen, he has limitation of movement and difficulty when climbing stairs. Sometimes he utilizes a knee brace for stability. Because of his right knee pain he has being bearing his weight to the other side of the body. That has caused him to presents continuous hip pain with limitation of movements. He feels stiffness especially in the morning or when going from sitting to standing position. He also presents continuous back pain. He's no longer able to tolerate prolonged standing and sitting positions or walk long distances because it exacerbates his pain. He has difficulty lifting heavy things, bending, squat or crawl; climb and reaching is limited. He presents constant stiffness of his back with continuous muscle spasm. He has taken oral medications with poor improvement. At imaging studies he presents lumbar discogenic disease. [The Veteran] injured his right knee while at service when he fell on his right knee and stuck a metal piece in it. Due to his right knee problem, pain and limited mobility, he developed significant weight bearing capability difficulties. This causes bad posture, loss of correct alignment and loss of curvature of cervical, thoracic and lumbar lordosis, putting more stress in one side of the vertebras than the other and by consequence patient could present disc bulging and herniation with degenerative problems. These at the same time bring problems of radiculopathy and neuropathy. Also his other knee and hips could be affected as a result of these. All of this has caused him limitation of his daily activities and emotional problems. At home he needs help to realize his daily tasks. He's no longer able to do any strong physical activity. As a consequence he presents depressed mood, with changes in his sleep and eating patterns. He has marked decrease interest and pleasure in most of his usual activities. He presents fatigue or low energy nearly every day; concentration and memory problems. He has episodes of irritability, crying spells, frustration, and anxiety. Please evaluate him carefully because it is more probable than not that his right knee problem is service connected and caused back and hips problem that are more probable than not service connected as his depression secondary to his problems. The Veteran underwent VA examinations in April 2017. The mental disorders examination was conducted by a VA psychiatrist. After review of the record and examination of the Veteran, the psychiatrist stated that the Veteran's unspecified depressive disorder was less likely than not incurred in or caused by claimed in-service injury, event, or illness. The examiner indicated that there was no link between the Veteran's mental disorder and endured military stressors until 1968. The psychiatrist also noted that a mental condition was not diagnosed until 2013, making the possibility of an aggravation by his service-connected residual left knee scar unlikely. Examinations of the right knee, bilateral hips, and thoracolumbar spine were conducted by VA physicians. After review of the record and physical examination of the Veteran, the physician opined that the Veteran's right knee condition was less likely as not related to service or related to or aggravated by service-connected left knee scar. The physician noted that the current knee condition was diagnosed in 2002, several years after service, and was due to normal progression of aging process. The physician also noted that the left knee scar was due to a superficial laceration in the left knee in 1966, that right knee condition was diagnosed in year in 2002, several years after service. The physician stated that the bilateral hip condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness and less likely as not aggravated by his service-connected left knee scar. The physician noted that review of the service treatment records and medical records did not show complaints of hip or a diagnosis of a hip condition during his military service or in the first several years following the military service. The physician noted that the Veteran denied having any hip issues until gradual onset on hip pain approximately 10 years prior. The physician noted that characteristics and presentation of the Veteran's hip pain at least as likely as not corresponded to degenerative joint disease in the hips and that such was at least as likely as not due to his natural process of aging. The physician noted that there was no nexus found between the Veteran's military service and a present hip condition. He also noted that the Veteran stated that he did not recall any hip condition, hip pain, or injury or trauma to his hips or pelvic area during his military service but that he had had gradual onset of hip pain over the prior 10-year period. The physician noted that the left knee scar was secondary to a puncture wound to his left knee when he kneeled on a nail. The physician noted that a review of the service treatment records showed no left knee sequela in the remainder of time he served in the military after the knee puncture wound and that no reported sequela in the left knee was noted in the Report of Medical History and Report of Medical Examination in November 1967 when he separated from the military or in the medical records after separation. The physician noted that a review of past VA scar examinations showed no limitation of range of knee motion or function related to the knee scar residual and that a scar in the knee less likely as not caused any direct or indirect biomechanical effect on the Veteran's hips. The physician stated that the service-connected left knee scar and the hip condition had different pathophysiology, were in different anatomical regions, and did not affect one and other. After review of the record and physical examination of the Veteran, the physician stated that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness and less likely than not proximately due to or the result of the Veteran's service connected condition. The physician noted that the Veteran's service treatment records were silent for complaints, evaluation, and/or treatment for now claimed lumbar condition during his active military service or within two years after being release from his active service. The examiner noted that MRI findings were related to the normal aging process. The physician also noted that the Veteran's lumbar and knee conditions were different disease entities, with different anatomical and pathophysiological processes unrelated to each other. The physician noted that there was no objective evidence that the Veteran's service-connected knee condition had aggravated his lumbar condition. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran's depressive disorder, right knee arthritis, bilateral hip arthritis, and lumbar spine arthritis are in any way related to the Veteran's active duty service or service-connected left knee scar, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. Here, there are legitimate reasons for accepting the VA examiners' unfavorable medical opinions over Dr. Ortiz's favorable medical opinion. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In this case, Dr. Ortiz notes that the Veteran injured his right knee while in service and a piece of metal stuck into it. Further, Dr. Ortiz noted that because of the Veteran's right knee problem, he development significant weight bearing capability difficulties which caused bad posture and loss of correct alignment and loss of curvature of the thoracic and lumbar lordosis, that his other knee and hips could be affected as a result of his right knee problem, and that all of this caused emotional problems. Unfortunately, a right knee injury during service is not corroborated by the Veteran's service treatment records. Thus, this post-service reference to a right knee injury sustained in service without a review of service medical records is not competent medical evidence. In addition, her opinion does not take into account the records of prior medical treatment and does not provide supporting clinical data. Finally, Dr. Ortiz's medical opinion is based on an inaccurate factual premise. As such, her opinion is not probative. In contrast, the VA medical opinions were provided after a review of the record and physical examination of the Veteran. In addition, the examiners provided rationales for their opinions. Consequently, the Board finds the VA examiners' opinions more probative. Thus, the record is absent medical evidence of a right knee, hip, and lumbar spine disorder or injury during service; medical evidence of right knee, hip, and lumbar spine arthritis within a year following service; credible evidence of continuity of symptomatology; and competent evidence of a nexus between a right knee, a bilateral hip, and a lumbar spine disorder and either the Veteran's active duty service or service-connected disability. The Board must also consider the Veteran's own opinion that his right knee, bilateral hip, and lumbar spine arthritis are related to active service. In this case, the Board does not find him competent to provide an opinion regarding the etiology of his right knee, bilateral hips, and lumbar spine pain as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is appealing the assignment of a disability for an already established service-connected disability for a left knee scar evaluated pursuant to Diagnostic Code 7804, currently evaluated as 10 percent disabling. That the same left knee scar is also receiving a noncompensable evaluation pursuant to Diagnostic Code 7802. The Veteran is requesting a compensable evaluation under that rating as well. Under 38 C.F.R. § 4.118, to warrant a compensable rating, the scar must be at least six square inches (39 sq. cm) for deep and nonlinear scar (7801), 144 square inches (929 sq. cm) for nonlinear superficial scar (7802), unstable, or painful (7804). See 38 C.F.R. § 4.118, Diagnostic Code 7801-7805. To warrant a rating higher than 10 percent, the scar must be deep and nonlinear and involve an area or areas of at least 12 square inches (77 square centimeters) (7801), there must be three or four scars that are unstable or painful (7804). In addition, scars may be evaluated under another appropriate diagnostic code. Initially, the Board notes that the Veteran's service treatment records indicate that in September 1966, the Veteran knelt down to remove a tent peg, hitting his knee on a nail on a piece of board on the ground penetrating about two and 1/2 inches. A small superficial laceration to the left knee was noted. He was sutured; eight days later, the suture was removed. On VA examination in February 2012, the Veteran's left knee scar was noted to be painful, a dull type of pain with a burning sensation. The scar was superior to patella, was superficial and non-linear, and measured 3.5 centimeters by .8 centimeters. On VA examination in April 2017, the Veteran's left knee scar was noted to be painful, and the pain was noted to be intermittent pressure sensation. The scar was superior to patella, was superficial and non-linear, and measured 3.5 centimeters by .8 centimeters. The examiner noted that the left knee scar did not result in limitation of function. As the Veteran's left knee scar is not deep and nonlinear, involve an area or areas of at least 12 square inches (77 square centimeters), or consist of three or four scars that are unstable or painful, a rating higher than 10 percent is not warranted pursuant to Diagnostic Code 7804 and a compensable rating is not warranted pursuant to Diagnostic Code 7802. TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran's disabilities meets this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. In this case, service-connection has been established for a left knee scar, evaluated as 10 percent and noncompensable pursuant to 4.118, Diagnostic Codes 7804 and 7802, respectively. At no point during the appeal did the Veteran meet the schedular criteria for TDIU. As such, the claim of entitlement to TDIU on a schedular basis must be denied. See 38 C.F.R. § 4.16 (a). The Board has considered whether referral for consideration of TDIU on an extraschedular basis is warranted for this stage of the appeal. See 38 C.F.R. § 4.16 (b) (2016). However, there is no medical evidence that the Veteran's service-connected left knee scar precludes employment. The February 2012 VA examiner stated that the left knee scar did not preclude the Veteran from obtaining and security a job; and the April 2017 VA examiner specifically noted that the Veteran's scar did not impact his ability to work. As such, the Board finds that criteria for submission for extraschedular assignment of TDIU pursuant to 38 C.F.R. § 4.16 (b) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1996). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to an initial compensable rating for residual left knee scar, rated under Diagnostic Code 7802, is denied. Entitlement to a rating in excess of 10 percent for residual left knee scar, rated under Diagnostic Code 7804, is denied. Entitlement to a TDIU is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs