Citation Nr: 1802791 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-15 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a left hip disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to a disability rating in excess of 10 percent for surgical scars of the bilateral toes. 6. Entitlement to a disability rating in excess of 10 percent for the residuals of a bunionectomy of the right toe. 7. Entitlement to a disability rating in excess of 10 percent for the residuals of a bunionectomy of the left toe. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to September 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina made in August 2011 and in August 2012. The Board notes that during a personal hearing before the Board in February 2012 the issues related to the Veteran's back disorder were briefly discussed, and the Board found that the issues were no longer properly before the Board without any objection from the Veteran or the Veteran's representative. See Transcript, p. 2. Additionally, the Board notes that the Veteran also initially appealed the denial of an increased disability rating claim for residuals of a fracture of the left radius, and that a statement of the case (SOC) was issued in response to the appeal in October 2016. Nevertheless, the Veteran failed to file a timely VA Form 9, and the Board does not take jurisdiction over this claim. FINDINGS OF FACT 1. A medical nexus has not been established between an in-service incurrence and a current diagnosis of a right hip disorder, a right hip disorder did not manifest within one year of separation of service; continuity of symptomology since separation of service has not been established; and the right hip disorder is not proximately caused or aggravated by a previously service-connected disability. 2. A medical nexus has not been established between an in-service incurrence and a current diagnosis of a left hip disorder; a left hip disorder did not manifest within one year of separation of service; continuity of symptomology since separation of service has not been established; and the left hip disorder is not proximately caused or aggravated by a previously service-connected disability. 3. A medical nexus has not been established between an in-service incurrence and a current diagnosis of a right knee disorder; a right knee disorder did not manifest within one year of separation of service; continuity of symptomology since separation of service has not been established; and the right knee disorder is not proximately caused or aggravated by a previously service-connected disability. 4. A medical nexus has not been established between an in-service incurrence and a current diagnosis of a left knee disorder; a left knee disorder did not manifest within one year of separation of service; continuity of symptomology since separation of service has not been established; and the left knee disorder is not proximately caused or aggravated by a previously service-connected disability. 5. The Veteran withdrew the issue of entitlement to a disability rating in excess of 10 percent for surgical scars of the bilateral toes during a hearing before the Board on February 27, 2017. 6. The Veteran withdrew the issue of entitlement to a disability rating in excess of 10 percent for the residuals of a bunionectomy of the right toes during a hearing before the Board on February 27, 2017. 7. The Veteran withdrew the issue of entitlement to a disability rating in excess of 10 percent for the residuals of a bunionectomy of the left toes a personal hearing before the Board on February 27, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 3. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 4. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 5. The criteria for withdrawal of the issue of entitlement to a disability rating in excess of 10 percent for surgical scars of the bilateral toes have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of the issue of entitlement to a disability rating in excess of 10 percent for the residuals of a bunionectomy of the right toes have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. The criteria for withdrawal of the issue of entitlement to a disability rating in excess of 10 percent for the residuals of a bunionectomy of the left toes have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Veteran had objected to the substances of one of the examinations of record which the Board shall discuss in more substance below, because the examiner did not take into consideration the results of lay symptoms discussed during the Veteran's personal hearing before the Board. Nevertheless as discussed below, the Board ultimately finds that the lay symptomology discussed by the Veteran at his personal hearing - which the Board finds credible - ultimately does not rebut the findings of the examinations of record; and remand for a new VA examination is not required. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the issues of entitlement to increased disability ratings for scars of the bilateral toes and the residuals of bilateral bunionectomies. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Service Connection The Veteran contends that he is entitled to service connection for multiple claimed disabilities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection can also be established through application of statutory presumptions, including for chronic diseases like arthritis, that become manifest to a compensable degree within one year of separation of service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. Finally, service connection may be granted on a secondary basis for conditions that were proximately due to or aggravated by a previously service-connected disability. 38 C.F.R. § 3.310. Hips At issue is whether the Veteran is entitled to service connection for a bilateral hip disorder. Essentially, the Veteran contends that his previously service-connected residuals of his bunionectomies altered his gait which in turn caused his bilateral hip disorder. The weight of the evidence indicates that, unfortunately, the Veteran is not entitled to service connection. The Veteran's treatment records are silent for reports of, or treatment for, a bilateral hip disorder during the Veteran's period of service. In an examination in July 1993, the Veteran's lower extremities were evaluated as normal. During a survey of medical history provided contemporaneously with the examination, the Veteran did not report a history of hip problems. In an examination conducted in February 1995 shortly before separation of service, the Veteran's lower extremities were evaluated as normal as well. The Veteran underwent a VA general examination in December 1995. Despite identifying a number of medical conditions, the examination did not diagnose the Veteran with a hip disorder. The Veteran underwent an initial evaluation to establish treatment at a VA facility in July 2011. The Veteran reported chronic bilateral hip pain. Treatment records indicate that the Veteran continued to manifest bilateral hip problems thereafter. The Veteran underwent a VA orthopedic examination in November 2011 at which he reported that his hips had been bothering him for the past two years (since approximately November 2009), and the Veteran claimed that his previously service connected residuals of a bunionectomy altered his gait. The examiner indicated that the Veteran manifested bilateral degenerative hip changes. The Veteran underwent another VA orthopedic examination in December 2013 at which he was diagnosed with mild bilateral degenerative joint disease of the hips that had first begun to manifest in 2011. The examiner opined that it is less likely than not that the Veteran's bilateral hip disorder was caused by his previously service-connected bunionectomies. The examiner explained that bunionectomies do not alter gait to an extent to cause degenerative changes in the hips. The examiner further explained that the Veteran's hip disorder was likely due to the aging process, genetics, and the degenerative impact of the Veteran's employment as an information technology (IT) professional. The Veteran submitted private treatment records from 2015 which indicate that he experienced hip problems, but these records only discussed the existence and severity of the hip problems and did not discuss the etiology of the hip disabilities. The Veteran testified at a personal hearing before the Board in February 2017 that he believed that his current bilateral hip disorder was due to his an altered gait caused by his previously service-connected residuals of bilateral bunionectomies. The Veteran also challenged the rationale and adequacy of the December 2013 VA examination. The Veteran indicated that the rationale that his bilateral hip disorders were due to his work as an IT professional was flawed, because his work was largely sedentary. See Transcript. The weight of the evidence indicates that the Veteran is not entitled to service connection for a bilateral hip disorder. The Veteran clearly has a current diagnosis of a bilateral hip disorder. Nevertheless, the Veteran's lower extremities were evaluated as normal in a medical examination shortly before separation of service. The Veteran was not diagnosed with a hip condition at a VA examination in December 1995 shortly after separation of service. The record is silent for reports of or treatment for a bilateral hip condition until more than a decade after service, and there is no medical opinion even suggesting a medical nexus between the Veteran's hip disabilities and either his military service, or a service connected disability. The Board has considered the Veteran's contentions that his December 2013 VA examination, which found that the Veteran's current bilateral hip disorder was due to genetics, aging, and the degenerative effects of working as an IT professional, was inadequate, because his work as an IT professional was largely sedentary. The Board finds the Veteran's reports of his lay symptoms credible, but does not find them sufficient to rebut the findings of the examiner; because, even if the Veteran's work is largely sedentary, this would not alter the effects of the Veteran's age or genetics which are unrelated to a period of service or a previously service-connected disability. Moreover, the Veteran claims that the mechanism which led to his current bilateral hip disorder was an altered gait due to his previously service-connected residuals of a bunionectomy. The Board accepts the Veteran's reports of an altered gait as credible, but the December 2013 VA examiner explained that bunionectomies do not result in gait changes severe enough to impact the hip joint. Here, the weight of the probative evidence of record simply fails to demonstrate a medical nexus to an in-service incurrence and a current diagnosis; of which there is also no record of a diagnosis within one year of separation or continuity of symptomology since separation of service. Additionally, the current bilateral hip disorder was not proximately due to or aggravated by a previously service-connected disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a bilateral hip disorder is denied. Knees At issue is whether the Veteran is entitled to service connection for a bilateral knee disorder. Essentially, the Veteran contends that his previously service-connected residuals of his bunionectomies altered his gait which in turn caused his bilateral knee disorder. The weight of the evidence indicates that, unfortunately, the Veteran is not entitled to service connection. The Veteran's treatment records indicate that the Veteran sought treatment for knee problems including in October 1994 when the Veteran sought treatment for a bruised knee. In an examination in July 1993, the Veteran's lower extremities were evaluated as normal. During a survey of medical history provided contemporaneously with the examination, the Veteran denied having or ever having had a trick or locked knee. In an examination conducted in February 1995 shortly before separation of service, the Veteran's lower extremities were evaluated as normal as well. The Veteran underwent a VA general examination in December 1995. Despite identifying a number of medical conditions, the examination did not diagnose the Veteran with a bilateral knee disorder. The Veteran underwent a private medical evaluation in March 2011. The Veteran reported that since undergoing surgery for bunionectomies he had begun to develop knee pain. The private physician indicated that the Veteran had a non-antalgic gait, and the Veteran was diagnosed with mild bilateral osteoarthritis. The Veteran underwent an initial evaluation to establish treatment at a VA facility in July 2011. The Veteran reported chronic bilateral knee pain. The Veteran's treatment records indicate that the Veteran continued to manifest knee symptoms thereafter. The Veteran underwent a VA orthopedic examination in November 2011. The Veteran reported that his knees had been bothering him for the past two years (since approximately November 2009), and the Veteran claimed that his previously service connected residuals of a bunionectomy altered his gait. The examiner indicated that the Veteran had experienced bilateral degenerative knee osteoarthritis since 2010. In October 2012, a VA examiner noted that the Veteran had a current right knee disorder and an in-service incurrence of a bruised right knee towards the end of his period of service. The examiner opined that the Veteran's right knee disorder was less likely as not related to a period of service. The examiner explained that the Veteran's bruising of the knee was a superficial injury of the skin that healed completely rather than an internal knee injury that can lead to osteoarthritis decades later. The examiner also indicated that the record was silent for treatment for knee problems for decades after the right knee bruising, and that the Veteran's current right knee disorder was most likely caused by aging and genetic predisposition. The Veteran underwent another VA orthopedic examination in December 2013. The examiner diagnosed the Veteran with bilateral osteoarthritis of the knees, and a meniscus tear of the right knee. The examiner opined that it is less likely than not that the Veteran's bilateral knee disorder was caused by his previously service-connected bunionectomies. The examiner explained that bunionectomies do not alter a gait to a sufficient extent to cause degenerative changes in the knees. The examiner further indicated that the Veteran's knee disorder was due to the aging process, genetics, and the degenerative impact of the Veteran's employment as an IT professional. The Veteran submitted private treatment records from 2015 which indicate that the Veteran manifested knee problems, but these records discussed the existence and severity of these knee problems rather than the etiology of these problems. The Veteran theorized at his Board hearing in February 2017 that his current bilateral knee disorder was due to his an altered gait caused by his previously service-connected residuals of bilateral bunionectomies. The Veteran also challenged the rationale and adequacy of the December 2013 VA examination. The Veteran indicated that the rationale that his bilateral knee disorders were due to his work as an IT professional was flawed, because his work was largely sedentary. See Transcript. The weight of the evidence indicates that the Veteran is not entitled to service connection for a bilateral knee disorder. The Veteran clearly has a current diagnosis of a bilateral knee disorder, and he did bruise his right knee in service. Nevertheless, the Veteran's lower extremities were evaluated as normal in a medical examination shortly before separation from service. The Veteran was not diagnosed with a knee condition in a VA examination in December 1995 shortly after separation of service. The record is silent for reports of or treatment for a bilateral knee condition until decades after service, and there is no medical opinion of record establishing a medical nexus between a current diagnosis and an in-service incurrence or that a current diagnosis is proximately due to or caused by a previously service-connected disability. As previously noted, the Veteran's contends that the December 2013 VA examination was inadequate, because his work as an IT professional was largely sedentary. However, while the Board finds the Veteran's reports of his lay symptoms credible, the Board does not find them sufficient to rebut the findings of the examiner; because, as previously noted even if the Veteran's work is largely sedentary, this would not alter the effects of the Veteran's age or genetics which are unrelated to a period of service or a previously service-connected disability. Moreover, the Veteran claims that the mechanism which led to his current bilateral knee disorder was an altered gait due to his previously service-connected residuals of a bunionectomy, but, while the Board accepts the Veteran's reports of an altered gait as credible, the December 2013 VA examiner opined that bunionectomies do not result in gait changes severe enough to impact the knee joint. Finally, a November 2011 VA examination (the adequacy of which the Veteran has not challenged) indicated that the Veteran's right knee disorder was due to genetics and aging. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a knee disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, while he might describe an altered gait, he lacks the medical training or expertise to determine whether such an alteration would be sufficient to cause a hip or knee disability. Here, the weight of the probative evidence of record simply fails to demonstrate a medical nexus between an in-service incurrence and a current diagnosis; of which there is also no record of a diagnosis within one year of separation or continuity of symptomology since separation of service. Additionally the current bilateral knee disorder was not proximately due to or aggravated by a previously service-connected disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a bilateral knee disorder is denied. ORDER Service connection for a right hip disorder is denied. Service connection for a left hip disorder is denied. Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. The issue of entitlement to a disability rating in excess of 10 percent for surgical scars of the bilateral toes is dismissed. The issue of entitlement to a disability rating in excess of 10 percent for the residuals of bunionectomy of the right toe is dismissed. The issue of entitlement to a disability rating in excess of 10 percent for the residuals of bunionectomy of the left toe is dismissed. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs