Citation Nr: 1756071 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 09-37 327A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hip disability, to include as secondary to his service-connected right knee disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to his service-connected right knee disability. 3. Entitlement to service connection for a back disability, to include as secondary to his service-connected right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran had active service from January 1952 to January 1955 and from October 1955 to October 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2013 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2017, at which time it was remanded for additional development. It now returns to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A bilateral hip disability was not incurred in or as a result of active duty service; and it was not caused or aggravated by the service-connected right knee disability. 2. A left knee disability was not incurred in or as a result of active duty service; and it was not caused or aggravated by the service-connected right knee disability. 3. A back disability was not incurred in or as a result of active duty service; and it was not caused or aggravated by service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a), 3.327(a) (2016). See also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). In this regard, letters dated in July 2011 and April 2013 provided all notice required under the VCAA. They notified the Veteran of the elements of service connection on direct and secondary bases, the types of evidence that could support the claim, and the allocation of responsibilities between the Veteran and VA for obtaining relevant records and other evidence on his behalf. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). The letters were followed by adequate time for the Veteran to submit information and evidence before adjudication or readjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Concerning the duty to assist, the Veteran's service treatment records, service personnel records, private medical records, VA treatment records, records of VA examinations and medical opinions, and statements and argument in support of his claim have been associated with the claims file, to the extent obtainable. See 38 U.S.C.A § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not since identified any other records or evidence he wished to submit or have VA obtain. Accordingly, the duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). Additionally, a VA examination was provided in May 2013 with an addendum opinion in August 2017 pursuant to a June 2017 Board remand. See 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Taken together, the examination report and opinion are adequate to decide this claim, as they are based on a review of the Veteran's claims file and reported history; contain a description of the history of the disability at issue and describe the current findings in sufficient detail so that the Board's review is a fully informed one; document and consider the relevant medical facts and principles; and provide an opinion regarding the nature and etiology of the Veteran's claimed condition. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012); Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Neither the Veteran nor his representative has challenged the adequacy of the August 2017 addendum. Thus, the examination report and addendum opinion are adequate for rating purposes and no prejudice exists. See Sanders, 556 U.S. at 407 (holding that whether prejudicial harm exists is a case-by-case determination). Moreover, to the extent that the previous examination was not sufficient, any deficiency has since been cured by the August 2017 VA addendum opinion. Accordingly, VA's duty to obtain a VA examination has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. 303, 312 (2007). In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Sanders, 556 U.S. at 407, 410; Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson, 24 Vet. App. at 389; Vogan, 24 Vet. App. at 163. Therefore, the Board may proceed with appellate review. II. Service Connection The Veteran contends that his current bilateral hip, back, and left knee disabilities are secondary to his service-connected right knee disability. See June 2011 Statement in Support of Claim, received June 7, 2011, at 1. Under VA law, service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA law also permits an award of service connection on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The claims for service connection for bilateral hip, left knee, and back disabilities were not asserted or otherwise indicated to have developed in service or proximate to service or otherwise to be directly causally linked to service, but rather, they were claimed secondary to the Veteran's service-connected right knee disability. The Board finds that the evidence of record does not support that the Veteran's bilateral hip, left knee, and back disabilities are due to his service-connected right knee disability. Furthermore, the Board finds that there are no other service-connected conditions to associate with the Veteran's bilateral hip, left knee, and back disabilities. Additionally, the Board finds that service connection on a direct basis for bilateral hip, left knee, and back disabilities is not warranted because there is no evidence to show that the Veteran's disabilities had their clinical onset during active service or are related to any incident of service. A VA examination was conducted in May 2013, and the VA examiner opined that the Veteran's left hip, back, and left knee disabilities were less likely than not "proximately due to or the result of" the right knee disability. As a result, the medical and lay evidence do not establish a continuity of symptomatology that links his bilateral hip, left knee, and back disabilities to service or indicates that his disability otherwise relate to service. The Veteran's VA treatment records document his current diagnoses of a low back disability, bilateral hip disabilities, and osteoarthritis of the left knee. See May 2013 Disability Benefits Questionnaires, received August 22, 2013, at 2, 12, 21. See also September 2014 Primary Care Note, received April 18, 2016, at 15. However, the record suggests that the Veteran's diagnosed low back disability is unrelated to his active service. In this regard, in a May 2013 VA medical opinion as to the etiology of the Veteran's back disability, the VA medical examiner found no evidence that the type of Veteran's back symptoms are related to his right knee condition or to his military service because there is no evidence that the Veteran's right knee disability could cause his degree of back issues. The examiner determined that the Veteran's back condition was likely due to multifactorial reasons and not due to his right knee pains, noting that the Veteran had worked as a boilermaker most of his life. See May 2013 Disability Benefits Questionnaires, received August 22, 2013, at 33. Additionally, there is no evidence to show that the Veteran's hip issues are related to his right knee disability. The VA medical examiner in May 2013 determined that the Veteran's hip condition is less likely than not proximately due to or the result of his military service because the examiner opined that he would expect to see a greater degree of degenerative changes sooner if his right knee condition was causing his left hip condition. See May 2013 Disability Benefits Questionnaires, received August 22, 2013, at 36. Furthermore, it was noted in a September 2014 Primary Care Note that the Veteran suffers from osteoporosis and osteoporotic hip fractures. See September 2014 Primary Care Note, received April 18, 2016, at 15. The Mary 2013 examiner also found that there was no reason to believe that the Veteran's right knee disability caused his left knee disability because the examiner determined that the Veteran had mild osteoarthritis in both knees. The examiner noted that he would expect significant medial compartment changes on the Veteran's left side. In August 2017, a supplemental opinion was provided by the examiner who conducted the May 2013 examination. The examiner again found that the Veteran's right hip disability was not caused by his right knee disability and that the Veteran's bilateral hip, back, and left knee disabilities were not aggravated (permanently worsened in severity) by his service-connected right knee disability. In reaching those opinions, the examiner acknowledged that the Veteran's right hip x-rays of November 2010 showed moderate degenerative changes and noted that these changes would be expected based on the Veteran's age alone. He also noted that the Veteran denied problems with his right hip and denied problems with his right knee during his May 2013 examination. The examiner stressed that the Veteran's work on boilers for many years would have put stress on all of his lower extremity joints and his back. The examiner found, based on the Veteran's history and a review of his records, that he could not logically connect these conditions to the Veteran's military service or to the Veteran's service connected right knee disability. The May 2013 VA examination along with the August 2017 addendum opinion are highly probative, as together, they represent the informed conclusion of a medical professional supported by a thorough explanation and based on a review of the Veteran's medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians' access to a Veteran's medical records). Accordingly, the May 2013 VA examiner's report and the August 2017 addendum opinion carry significant probative weight in the Board's determination. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for the Veteran's bilateral hip, left knee, and back disabilities is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a bilateral hip disability, to include as secondary to service-connected right knee disability, is denied. Service connection for a left knee disability, to include as secondary to service-connected right knee disability, is denied. Service connection for a back disability, to include as secondary to service-connected right knee disability, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs