Citation Nr: 1759984 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-40 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for impairment of the sciatic nerve, right lower extremity, to include as secondary to a low back disability. 3. Entitlement to service connection for a bilateral hip disability, to include as secondary to a low back disability. 4. Entitlement to service connection for a bilateral knee disability, to include as secondary to a low back disability. 5. Entitlement to service connection for residuals of a cold injury to the right hand. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1969 to May 1971. These matters come before the Board of Veterans' Appeals (the Board) from September 2009 and August 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ) in May 2012. A transcript of that proceeding has been associated with the claims file. The case was remanded by the Board in January 2013, April 2015, and February 2017 for additional development. To the extent possible that development has been completed and the case has been returned to the Board. In its January 2013, April 2015, and February 2017 remands, the Board referred a claim for compensation for additional disability under the provisions of 38 U.S.C. § 1151 (2012) based on treatment at a VA facility in December 2007. See January 2013 Board remand, pg. 3 and April 2015 remand, pg. 3. Of record are two inferred issue memoranda dated February 9, 2016 and September 2, 2017. However, it appears no further action has been taken on this referral. Thus, the issue is once again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for residuals of a cold injury to the right hand addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence does not show that the Veteran's low back disability is related to military service. 2. The evidence does not show that the Veteran's sciatic nerve impairment is related to military service or to a service-connected disability. 3. The evidence does not show that the Veteran's bilateral hip disability is related to military service or to a service-connected disability. 4. The evidence does not show that the Veteran's bilateral knee disability is related to military service or to a service-connected disability. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Sciatic nerve impairment was not incurred in or aggravated by service, or caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. A bilateral hip disability was not incurred in or aggravated by service, or caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 4. A bilateral knee disability was not incurred in or aggravated by service, or caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in April 2009, July 2009, and May 2010 letters. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before a VLJ in May 2012. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). In a November 2017 brief, the Veteran's representative asserted that the VA opinions obtained in June 2017 were deficient as the examination report "did not adequately assess his condition[s] to [the Veteran's] prejudice." The representative's challenge to the examination report is nonspecific. Moreover, the June 2017 opinions were based on review of the claims file including the Veteran's assertions, and were supported by rationales. Accordingly, the Board concludes that the representative's challenge of the VA opinions is without merit. These claims were remanded in January 2013, April 2015, and February 2017, to obtain outstanding VA medical records and afford the Veteran VA examinations. Outstanding VA medical records were obtained, though VA received negative responses from Albuquerque and West Texas VA Health Care Systems for VA records prior to March 1998. A June 2017 Report of General Information indicates the Veteran was informed of these negative responses. Additionally, VA opinions were obtained in June 2017. Accordingly, there has been substantial compliance with the Board's remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008). Service Connection The Veteran seeks entitlement to service connection for a low back disability, impairment of the sciatic nerve affecting the right lower extremity, bilateral hip disabilities, bilateral knee disabilities, and residuals of a cold injury to the right hand. The Veteran asserts that his back disability was incurred during service, and that his sciatic nerve impairment and bilateral hip and knee disabilities are caused or aggravated by his back disability. However, for the reasons discussed below, the evidence is against the Veteran's claims. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the Veteran's arthritis did not manifest to a compensable degree within one year of separation from service. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 1 Vet. App. 439 (1995). To establish secondary service connection, 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 (1998). Back and Lumbago-Sciatica VA medical records indicate the Veteran is diagnosed with mild degenerative joint disease of the lumbar spine and lumbago-sciatica, satisfying the first Hickson element. See July 2009 VA examination report and March 10, 2013 report from Medical Center Hospital (Odessa). Service treatment records show that on October 13, 1969, the Veteran was treated for an acute lumbosacral strain which occurred during a troop exercise. X-rays were normal. The Veteran was prescribed Robaxin and restricted from heavy lifting for three days. An October 17, 1969 note states the Veteran still had pain in the low back area with muscle spasm and decreased range of motion. He was placed on a temporary T3 profile that same day, restricted from crawling, stooping, running, jumping, and prolonged standing or marching. By October 23, 1969, the Veteran's back was noted to have improved with reduced muscle spasms and improved range of motion. The Veteran endorsed back trouble on his February 9, 1971 report of medical history; however the contemporaneous separation examination report indicated his spine was clinically normal. Given these facts, the second Hickson element is met. There are several nexus opinions regarding a relationship between the Veteran's back disability and service. A January 2009 VA Physician Note from Dr. K. O. stated that the Veteran's severe low back pain may be related to having a total knee replacement of the left knee and his hip problems. The July 2009 VA examiner stated he could not render an opinion on whether the Veteran's back and joint disabilities were related to service without resorting to speculation, reasoning that the Veteran had symmetrical joint osteoarthritis and osteoarthritis of the lumbar spine, and it was highly unlikely that one episode of muscular low back pain would trigger such a response. He added that symmetry of symptoms indicated natural progression of what appeared to be an age-related phenomenon. The June 2017 VA examiner opined that the Veteran's back disability was less likely than not related to service. The examiner explained that while the Veteran was seen for a minor back injury in October 1969, by his third visit the condition had improved, and the Veteran was not seen again for back pain for the duration of service. The examiner acknowledged the Veteran's reports of back pain since service, but stated that the Veteran was not seen for back pain until many years later, and that there was nothing in his records to support his claim. The June 2017 VA opinion accounted for the Veteran's lay reports and the objective medical evidence of record and is supported by a reasoned rationale. Taken together with the July 2009 findings regarding the nature of the Veteran's back disability, the Board finds it highly probative. Moreover, the Veteran has presented an inconsistent history as to the duration of his back symptoms. In an April 2008 Texas Rehabilitation Commission disability determination examination, the Veteran reported experiencing back pain and sciatica for about 8 years. In a June 2009 VA physician note the Veteran reported that he had the back pain for the past 5 years. In a September 2009 VA psychology note, the Veteran said he began experiencing back problems within one year of being discharged from the military, and experienced fatigue in the back which necessitated sitting or lying down. In a March 2010 statement, the Veteran wrote his back problems began on October 13, 1969. These inconsistencies significantly diminish the probative value of the Veteran's reported history in this regard. The Board acknowledges that during the May 2012 hearing, the Veteran reported that doctors had told him his knees, hips, and sciatic nerve are related to his back, and that his back disability is related to service. See May 2012 Hearing Transcript, 10. However, the record contains no positive nexus opinion linking the Veteran's back disability to service. Given the inconsistent statements regarding the duration of the Veteran's back symptoms, the Board finds the June 2017 VA opinion to be the most probative evidence on this question. In the absence of a probative nexus opinion linking the Veteran's back disability to service with at least equal weight as the June 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for a back disability, to include lumbago-sciatica must be denied. Bilateral Hip Disability VA medical records indicate the Veteran is diagnosed with moderate to severe osteoarthritis of the hips, satisfying the first Hickson element. See July 2009 VA examination report and October 2011 Medical Hospital Center note. The Veteran's service treatment records are silent with respect to his hips. Given the absence of an in-service event, injury, or disease, the second Hickson element is not met. Additionally, as service-connection for a low back disability has been denied, the second Wallin element is likewise not met. Accordingly, service connection for a bilateral hip disability must be denied. Bilateral Knee Disability VA medical records indicate the Veteran is diagnosed with moderate to severe osteoarthritis of the knees, satisfying the first Hickson element. See July 2009 VA examination report. The Veteran endorsed "trick or locked knee" on his February 9, 1971 report of medical history, though no further explanation of this entry was given, and the contemporaneous examination report stated his lower extremities were clinically normal. The Veteran's service treatment records are otherwise silent regarding the Veteran's knees. However, the Veteran later reported he injured his left knee on maneuvers at Fort Lewis. See March 2010 statement. Given the Veteran's report of a trick or locked knee at separation and affording the Veteran the benefit of the doubt, the second Hickson element is met. There are several nexus opinions with respect to whether a relationship exists between the Veteran's bilateral knee disability and service. The July 2009 VA examiner stated he could not render an opinion on whether the Veteran's joint disabilities were related to service without resorting to speculation, reasoning that the Veteran had symmetrical joint osteoarthritis, and it was highly unlikely that one episode of muscular low back pain would trigger such a response. He added that symmetry of symptoms indicated natural progression of what appeared to be an age-related phenomenon. The June 2017 VA examiner opined that the Veteran's bilateral knee disability was less likely than not related to service. The examiner noted the Veteran's report of injuring his knee in 1971 during service, but observed that the only mention of a knee issue in the Veteran's service treatment records was his report of a trick knee at separation, and that the Veteran was not seen for knee pain until 26 years later. He added that there was no documented sentinel event and if the Veteran had much pain in 1971, he would not have been able to wait 26 years prior to seeking treatment. The June 2017 VA opinion accounted for the Veteran's lay reports and the objective medical evidence of record and is supported by a reasoned rationale. Taken together with the July 2009 findings regarding the nature of the Veteran's back disability, the Board finds it highly probative. The Board also observes that the Veteran has presented an inconsistent history regarding the duration of his knee symptoms. During a June 2003 psychiatric evaluation, the Veteran reported he began experiencing bilateral knee pain about five years ago. The Veteran made a similar statement in a December 2007 VA physical medicine rehabilitation consultation note, stating he had knee pain for the past eight years. See February 8, 2013 CAPRI file located on Virtual VA, pg. 15. In a March 2010 statement, the Veteran wrote that "around 1971 to 1980" he was treated by Dr. H. who performed arthroscopy surgery on his left knee. The Veteran repeated this assertion during his May 2012 hearing. See May 2012 Hearing Transcript, pp. 14-15. However VA medical records show that surgery actually occurred in July 1998. See July 1998 VA medical record. Given these inconsistent statements regarding the duration of the Veteran's knee symptoms, the Board finds the June 2017 VA opinion to be the most probative evidence on this question. In the absence of a probative nexus opinion linking the Veteran's knee disability to service with at least equal weight as the June 2017 opinion, the third Hickson element is not met, and as such, the preponderance of the evidence is against the claim and the Veteran's claim for service connection for a bilateral knee disability must be denied. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for sciatic nerve impairment is denied. Entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for a bilateral knee disability is denied. REMAND Additional clarification is required with respect to the Veteran's right hand claim. In a June 2017 opinion, the examiner wrote that a January 2016 x-ray showed arthritis of the right wrist, and that if the Veteran actually had a cold injury residual the radiologist would have commented on this diagnosis as "frostbite does cause typical damage to the bone(s)." However, the examiner opined that the Veteran's arthritis of the right wrist should not be considered a service-connected condition as his service treatment records were silent for any right hand condition. The examiner's rationale is unclear, as the language of his finding suggests that frostbite can cause damage to bones. Moreover, the January 2016 x-ray indicated degenerative changes in the distal interphalangeal joints, which are distinct from the radiocarpal joint. Thus, additional clarification in the form of a new opinion is necessary. If the examiner feels a new examination is necessary, one should be provided. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to an orthopedic surgeon or other appropriate clinician for an addendum opinion. If the clinician determines that another examination is needed, the Veteran should be scheduled for a new examination. The examination report must reflect that review of the claims folder occurred, to include this remand. Based on the examination (if necessary) of the Veteran and review of the record, the clinician should provide an opinion on whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed right hand disability is related to service, to include as a cold injury residual related to the Veteran's reported injury sustained during service between 1969 and 1971. The clinician's attention is directed to the Veteran's accounts of incurring frostbite during military service and his reports of numbness and tingling since service. See April 2008 Texas Rehabilitation Commission disability determination examination; February 2009 VA Form 21-526; March 2, 2009 psychology note, and May 2012 Hearing Transcript, pp. 11-12. The clinician is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the clinician's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the clinician is unable to offer an opinion, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Review the medical report for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 3. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. 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). See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs