Citation Nr: 1752637 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-34 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected left knee status post meniscectomy and arthroscopy. 2. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected left knee status post meniscectomy and arthroscopy. 3. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee status post meniscectomy and arthroscopy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active military service from March 1971 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2013, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing has been associated with the claims file. The Veteran has indicated that he does not desire an additional hearing. Following the hearing, the Board, in a February 2015 decision, remanded this matter for further development, to include obtaining medical opinions. The requested development has been performed and complies with the directives of the Board remand. The matter is now ready for appellate review. FINDINGS OF FACT 1. Any current low back disorder is neither of service origin nor is it caused or aggravated by the Veteran's service-connected left knee disorder. 2. Any current right hip disorder is neither of service origin nor is it caused or aggravated by the Veteran's service-connected left knee disorder. 3. Any current right knee disorder is neither of service origin nor is it caused or aggravated by the Veteran's service-connected left knee disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestation of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran seeks entitlement to service connection for low back, right knee, and right hip disorders, which he claims are secondary to his service-connected left knee disability. The Veteran's service treatment records (STRs) reveal that the Veteran tore a ligament in the left knee while playing football in Korea. The Veteran was diagnosed with left knee meniscus tear. In an April 1976 report of medical separation examination, clinical evaluation showed normal findings for the lower extremities and spine and the examiner noted that the Veteran was treated for strained left knee in 1972 with good results. Post-service treatment records showed that the Veteran underwent left knee surgery in August 1990 to remove a torn medial meniscus and arthroscopy. VA treatment record from the Columbia, South Carolina VA Medical Center (VAMC) also revealed that the Veteran underwent a total left knee arthroplasty in April 2004. In a May 2006 VA treatment record, the physician noted some arthritic symptoms appearing in the right knee. In a March 2010 VA treatment record, the Veteran reported experiencing bilateral hip pain and X-ray findings revealed mild degenerative narrowing of the both hips. In a July 2010 VA treatment record, the Veteran reported experiencing right hip and right knee pain that was made worse with daily activity. The Veteran was concerned that the left knee has caused increased stress to his right hip and right knee joints. Physical examination revealed limited internal rotation of the right hip. The physician also reported that X-ray finding show degenerative joint disease (DJD) on the right hip joint while the left side was "relatively unaffected." The examiner noted no visible osteophytes in the right knee. Lumbar spine X-ray revealed spina bifida occulta and the physician advised the Veteran that the lumbar location changes were more likely than not to aggravate his right hip and knee condition due to the shift of motion from the stiffened spine area to the hips. In November 2012, the Veteran underwent a VA examination of the back, hips, and knees. The Veteran was diagnosed with mild osteoarthritis and grade I spondylolisthesis L5-S1. The examiner also diagnosed the Veteran with intervertebral disc syndrome. The Veteran was also diagnosed with mild DJD of the right hip and mild DJD of the right knee. The examiner erroneously reported "no in service knee injuries" in the Veteran's medical history, however he did report that there was a gradual onset of right knee pain 3-4 years ago which the Veteran attributed to favoring the left leg with increased stress on the right knee following total knee arthroplasty in 2004. The examiner also noted residuals of the left knee surgery in 2004, to include intermediate degrees of residual weakness, pain or limitation of motion. The examiner opined that the "claimed condition" was less likely than not proximately due to or the result of the Veteran's service connected disabilities. It was unclear which "claimed condition" the examiner was referencing since the Veteran had been diagnosed with various disabilities from this examination. The examiner provided a rationale that the Veteran underwent total knee replacement in 2004 with the development of pain in the right hip and knee as well as back several years later. The examiner found that the Veteran's left leg was 1 centimeter (cm) shorter than his right leg and that he walked with a slight limp. The examiner found that the degenerative changes in his right hip, right knee and back were mild and consistent with expected, typical senescent changes of wear and tear. The examiner also found that there was no severe gait disturbances on exam to suggest this as the cause of the condition. During his October 2013 Board hearing, the Veteran testified that he did not hurt his low back, right knee, or right hip on active duty, but rather he developed secondary disabilities as a result of favoring his right knee, right hip and low back due to his left knee disability. The Veteran indicated that his right hip, right knee and low back disorders began about five years ago and after his left knee replacement surgery in 2004. The Veteran also testified that he had been walking with a limp since 1972. In its February 2015 remand, the Board requested that opinions be obtained as to the etiology of the Veteran's low back, right hip, and right knee disorders and their relationship, if any, to his service-connected left knee disorder. The examiner was asked to furnish an opinion with respect to the following questions: For the low back, right hip, and right knee, for each disability identified, was it at least as likely as not (50 percent or greater probability) that the identified disabilities were caused by the Veteran's service-connected left knee disability? For each disability identified, was it at least as likely as not (50 percent or greater probability) that any low back, right hip, or right knee disability was permanently worsened beyond its normal progression by the Veteran's service-connected left knee disability? The examiner was to assume as true that the Veteran had been walking with a limp since 1972, and that he favored his right knee, right hip, and low back as a result of his left knee condition. The reasons and bases for each opinion expressed were to be fully explained, to include a discussion of the facts and medical principles involved. The requested opinions were obtained in April 2015. The examiner, following a review of the record, indicated that condition of the left knee would have no direct nor indirect impact upon a non-contiguous opposite sided extremity nor one of the axial skeleton (lumbar spine) biomechanically, pathophysiologically, nor anatomically. Therefore, low back, right knee, and right hip disabilities were less likely than not secondary to left knee condition, and additionally less likely than not aggravated beyond natural progression by the left knee condition. The Board finds that the weight of the evidence shows that no low back, right hip, or right knee injury or disease occurred during service, and no chronic symptoms of low back, right hip or right knee problems were manifested during service. The service treatment records show no complaint of, diagnosis of, or treatment for a low back, right hip, or right knee disorder. There were no findings or complaints of low back, right hip, or right knee problems on the Veteran's service separation examination, with normal findings being reported for the spine and lower extremities. Because service treatment records show no low back, right hip or right knee injury, disease, or symptoms during service, and such conditions would have ordinarily been recorded during service because the musculoskeletal system was evaluated during service, the weight of the evidence demonstrates that there were no "chronic" low back, right hip, or right knee symptoms during service. Furthermore, the Veteran has not contended that he experienced low back, right hip or right knee problems during service. Therefore, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The Board next finds that the weight of the evidence is against a finding that low back, right hip or right knee symptoms were continuously manifested since service, including degenerative joint disease to a degree of ten percent disabling within one year of service separation. The earliest evidence of degenerative joint disease of any of these joints is decades after service separation. The absence of post-service findings of, diagnosis of, or treatment for degenerative joint disease for decades after service separation is one factor that tends to weigh against a finding of low back, right knee, or right hip disorders, to include degenerative joint disease, in service or continuous symptoms after service separation, including to a compensable degree within the first post-service year. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Moreover, the Veteran has not indicated, nor has he attempted to show or establish a continuity of symptomatology or nexus through his own lay assertions. As the record does not show low back, right hip or right knee injuries in service; low back, right knee or right hip disease in service; chronic symptoms of low back, right knee or right problems in service; continuous symptoms of low back, right hip or right knee problems since service, degenerative joint disease manifested to a compensable degree within one year of service separation, or a low back, right knee, or right hip disorder, to include degenerative joint disease, otherwise related to service, direct and presumptive service connection for a low back, right hip, and right knee disorders may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. With regard to the Veteran's belief as to a relationship between his current low back, right hip and right knee disorders and his service-connected left knee disorder, the Board finds that the etiology of any current low back, right hip, or right knee disorder falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Consequently, the Veteran's opinion that purports to establish a relationship between any service-connected left knee disorder and his current low back, right hip, and right knee disorders is of no probative value. Next, service connection may be granted when the evidence establishes a medical nexus between a claimed disability and a service-connected disability. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the record. See, e.g. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In the current case, the Veteran has not submitted competent or probative medical evidence specifically indicating that his current low back, right hip, or right knee disorders are related to his service-connected left knee disorder. He has also testified that there is no medical evidence of record indicating a relationship. In contrast, the Board has obtained an adequate and probative VA examination opinion in conjunction with the Veteran's claim. The April 2015 VA examiner's opinion indicated that the Veteran's low back, right hip and right knee disorders were not caused or aggravated by his service-connected left knee disorder. The Veteran's entire record, which at the time included his service treatment records, post-service treatment records, and statements from the Veteran, was reviewed. Based on all of the evidence, the examiner rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be the most probative evidence of record. Given the foregoing, the claim for service connection for low back, right hip and right knee disorders on a direct, presumptive, and secondary basis must be denied. As the weight of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder, to include as secondary to service-connected left knee status post meniscectomy and arthroscopy, is denied. Service connection for a right hip disorder, to include as secondary to service-connected left knee status post meniscectomy and arthroscopy, is denied. Service connection for a right knee disorder, to include as secondary to service-connected left knee status post meniscectomy and arthroscopy, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs