Citation Nr: 1805440 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-33 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to a lumbar spine disability. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to a lumbar spine disability. 3. Entitlement to service connection for a right leg disability, to include as secondary to a lumbar spine disability. REPRESENTATION Appellant represented by: David Anaise, Attorney at Law ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to September 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The case was certified to the Board by the RO in Oakland, California. In November 2016, the issues were remanded for further development. In a December 2016 rating decision, entitlement to service connection for left lower extremity radiculopathy was granted. In a June 2017 rating decision, the Veteran was granted entitlement to service connection for right and left knee arthritis. These awards constitute a full grant of the claims, and the appeals for these issues have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a chronic headache disability that was incurred or aggravated by service, or that was caused or aggravated by a service-connected lumbar spine disability. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral hip disability that was incurred or aggravated by service, that bilateral hip osteoarthritis had its onset during service or became compensably disabling within one year following separation from service, or that a bilateral hip disability was caused or aggravated by a service-connected lumbar spine disability. 3. The preponderance of the evidence is against finding that the Veteran has a right leg disability, including right leg radiculopathy, and other than a right knee disability, that was incurred or aggravated by service, or that was caused or aggravated by a service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. A chronic headache disability was not incurred in or aggravated by service, and was not caused or aggravated by a lumbar spine disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 2. A bilateral hip disability was not incurred in or aggravated by service, a hip disability may not be presumed to have been so incurred, and a hip disability was not caused or aggravated by a lumbar spine disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. A right leg disability was not incurred in or aggravated by service, and was not caused or aggravated by a lumbar spine disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Headaches The Veteran claims entitlement to service connection for headaches which are secondary to his service-connected lumbar spine stenosis with degenerative joint disease. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records show that in November 1952, he reported having headaches since incurring a concussion four years earlier. In August 1956, he was treated for headaches with fever and dizziness, and was placed under medical observation for possible meningitis. He was diagnosed with acute pharyngitis. The Veteran's September 1956 separation examination noted that the Veteran had bifrontal headaches for three months. At a February 1957 VA examination, the Veteran reported that he had terrible headaches for quite some time while in Germany. While the Board acknowledges that the Veteran had headaches while in service and reported having headaches just after his separation from service, in 1957, the majority of the medical evidence does not demonstrate that he has a current headache disorder, and service connection cannot be granted. The Veteran's private treatment records do not show any complaints or treatment related to headaches. The Veteran attended a VA examination in May 2017. The examiner wrote that the Veteran had not had an active headache problem for the past 10 years, and he reported that he was not seeing any medical professional for this problem, "feels healthy," and took no medicine for such a problem. The Veteran did not experience headache pain or other non-headache symptoms associated with headaches. The examiner found that the Veteran's headaches in service were acute and transitory, and the Veteran did not now have or had ever been diagnosed with a headache condition. The Board therefore finds that the Veteran has not demonstrated a current headache disability at any time during the pendency of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran did experience headaches in service, any headache disorder he had at that time has long since resolved. The Veteran himself stated at the May 2017 VA examination that he had not had headaches for 10 years, did not require treatment for headaches, and did not take any medication for headaches. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). In this case, there is no competent medical evidence to support a finding that the Veteran has, or has had at any time during the current appeal, a headache disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the preponderance of the evidence indicates that the Veteran does not have any current headache disorder, and there is no competent, medical evidence showing that the Veteran has had a chronic headache disorder, at any time during the period on appeal, that is related to any event in service. The Board has considered the benefit of the doubt rule, but the preponderance of evidence is against the claim. See 38 U.S.C. § 5107(b). Bilateral Hip Disability The Veteran also claims entitlement to service connection for a bilateral hip disability, which he asserts was either caused by the same in-service injury that damaged his back in 1953 or is secondary to his service-connected lumbar spine disability. The Veteran's service treatment records do show complaints of pain in the left hip. In January 1953, the Veteran reported a one year history of left hip pain and was noted to have "hip out of joint." He was diagnosed with minimal signs of sciatic irritation on the left. In February 1953, it was noted that the Veteran had "bad hip" with knee. The Veteran complained of left leg and hip pain in March 1955. At a February 1957 VA examination, the Veteran reported that he had pain in his left hip and leg, with radiating back pain in his left hip and knee. Physical examination found palpable thickening of the synovial membrane and some crepitus in the right knee. A November 2015 letter was submitted by the Veteran's attorney, who is also a doctor. He wrote that the Veteran's in-service injuries resulted in osteoarthritis of the hips. He stated that the Veteran's service treatment records were not available to him, but that the Veteran had described how he injured his back and left leg in 1953 and suffered a re-injury in 1956. He discussed the Veteran's medical treatment only pertaining to the lumbar spine. He also wrote that medical research shows that soldiers are especially susceptible to osteoarthritis after discharge from service and discussed some of that research. The Veteran's private treatment records show complaints of hip pain, including a report of bad hip pain in August 2014. In September 2014, he reported that his hip sometimes didn't "hold" him. The Veteran attended a VA examination in May 2017. The Veteran reported having hip pain since around 2005. He reported having problems with prolonged walking and standing. There was decreased range of motion in both hips. The examiner diagnosed the Veteran with bilateral hip arthritis. He found, however, that the Veteran's descriptions of pain radiating to the buttocks and hips was caused by radiculopathy, and was not due to bilateral hip arthritis. He further clarified that the Veteran's claim of pain in the bilateral hips was actually a symptom of his already service-connected lumbar spine disorder. He stated that the presence of arthritis in the hips was not caused by his lumbar spine disorder, but was the natural progression of his physiologic age. An addendum medical opinion was obtained in June 2017. The examiner reiterated his finding that the Veteran's reported symptoms were caused by his service-connected lumbar spine disorder, and not due to hip arthritis, and that there was no relationship between the bilateral hip arthritis and his service-connected lumbar spine disorder. He then discussed the Veteran's treatment in service for left hip pain, but stated that this pain was left leg radiculopathy, and was not due to any left hip abnormality, and therefore the Veteran bilateral hip arthritis was less likely than not caused by his complaints of hip pain in service in 1953. After reviewing all of the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current bilateral hip disorder that is related to service or that has been cause or aggravated by his service-connected lumbar spine disability. At the outset, it appears that the Veteran's reports of hip pain have already been compensated. The Veteran has clearly indicated that his complaints are related to radiating pain from the lumbar spine, primarily affecting the left buttock and thigh. The Veteran has already been granted entitlement to service connection for lumbar spine stenosis with degenerative joint disease, current rated as 10 percent disabling, and left lower extremity radiculopathy, currently rated as 20 percent disabling. These evaluations are intended to compensate the Veteran for his back pain, including radiating back pain, and moderate incomplete paralysis throughout the left leg. The May 2017 VA examiner clearly explained that the symptoms reported by the Veteran were part of his lumbar radiculopathy, and not related to a separate hip disorder. See 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). The Veteran has also been found by X-rays to have bilateral hip arthritis, even though the VA examiner explained that this arthritis is not the cause of his claimed symptoms. In Clemons, it was held that the scope of a claim should not be limited to the terminology used by the lay Veteran, but must include any disability reasonably encompassed by (1) the description of the claim, (2) the described symptoms, and (3) any other relevant evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009). The Board therefore has also considered whether service connection is warranted for bilateral hip arthritis, but finds that the preponderance of the evidence does not support a finding that bilateral hip arthritis is related to service or to a service-connected lumbar spine disability. The Board is not able to assign any probative value to the November 2015 letter submitted by the Veteran's attorney, who is also a doctor. The letter was not based on a review of the medical evidence, but even accepting that the Veteran is competent to report his own in-service symptoms, this medical opinion focuses entirely on the Veteran's lower back injury and left leg pain. The attorney wrote that the Veteran's hip arthritis was related to his in-service injury, but did not include any rationale pertaining specifically to the Veteran's hip arthritis and did not address whether his hip arthritis resulted in separate symptomatology from his left leg radiculopathy. The Board therefore finds that this medical opinion is greatly outweighed by the more probative findings of the VA examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) The VA examiner wrote in his May 2017 report and June 2017 addendum that the Veteran's treatment for hip pain in service in 1953 was not due to an actual hip injury, but was instead related to radiculopathy in the left leg related to the lumbar spine injury, and therefore it was less likely than not that the Veteran's current bilateral hip arthritis was related to this injury in service. He also explained that the Veteran's bilateral hip arthritis was not related to his lumbar spine disorder, but was instead the result of the natural aging process. While the examiner did not explicitly and separately discuss whether the Veteran's hip arthritis had been aggravated by a service-connected disability, the context of the examiner's statements, to include the opinion that the hip arthritis was the natural progression of the Veteran's physiologic age and that the condition was entirely unrelated to the lumbar spine disorder, reflects that the examiner intended this language to encompass the standard presented by 38 C.F.R. § 3.310(b). See, e.g., Kittrell v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 2045 ("It is not required that a medical opinion regarding secondary service connection be stated in the precise terms found in § 3.310 to be considered adequate ... a physician's choice of language is not error where, as here, his opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought."). The Board therefore finds that the May 2017 VA medical report and June 2017 addendum are adequate, probative medical evidence establishing that the Veteran's bilateral hip arthritis is not related to any in-service injury, nor has it been caused or aggravated by his service-connected lumbar spine disability. There are no other competent medical opinions in disagreement with the findings of the VA medical examiner, and no further, probative medical evidence has been submitted in support of the claim. Lastly, although osteoarthritis is a chronic disease under 38 C.F.R. § 3.309(a), the above evidence reflects that neither arthritis nor its symptoms were noted in service or within the one year presumptive period. The chronicity and continuity rules of 38 C.F.R. § 3.303(b), as well as the presumption of service connection under 38 C.F.R. § 3.307(a), do not allow for a grant of service connection in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hip disability on a direct, secondary, or presumptive basis. The benefit of the doubt doctrine is therefore not for application, and the claim is denied. See 38 U.S.C. § 5107(b). Right Leg Disability The Veteran also claims entitlement to service connection for a right leg disability. The Veteran wrote in September 2013 that he had weakness in both legs that was secondary to his lumbar spine disability. He wrote that his problems began in 1953 and had been with him all his life. In September 2014, he wrote that he has had leg pains from 1957 to the present, and that he believed this pain to be caused by radiculopathy related to his lumbar spine. The Board notes that in a June 2017 rating decision, the Veteran was granted entitlement to service connection for right knee arthritis and right knee scar. A 10 percent rating was assigned for the right knee disability on the basis of X-ray evidence of degenerative arthritis without any limitation of motion of the joint. All symptoms associated with the Veteran's right knee arthritis have therefore already been compensated, and such symptoms are not being considered in relation to the claim of entitlement to service connection for a right leg disability. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62 (1994). The Veteran's service treatment records do show that he was treated for an injury to the right leg and/or knee in service. In May 1954, the Veteran's right leg was caught between vehicles, resulting in abrasions and painful swelling. X-rays showed no fracture, and he was diagnosed with right leg "crushing." The Veteran's September 1956 separation examination noted that the Veteran had a "crushed" right knee in 1953 that was symptomatic At a February 1957 VA examination, the Veteran reported that his right leg will "collapse" on him if he does much walking or gets tired. Physical examination found normal range of motion in the right knee, but there was thickening of the synovial membrane and some crepitus. The Veteran's private treatment records show that he has been frequently treated for left leg compartment syndrome and left leg radiculopathy, but the evidence shows only intermittent complaints of pain or weakness related to the right leg. The Veteran has received numerous injections for lumbar back pain noted to be in conjunction with radiculopathy. The Veteran's radiculopathy is usually specified as being in the left leg, or it is not specified whether it is in only one or both legs. In a December 2005 treatment record, the Veteran was treated for compartment syndrome and edema in the left leg, and it was noted that there was no edema in the right leg. In July 2013, the Veteran complained of worsening weakness in his legs. He was noted to have a history of radiculopathy, but it did not specify whether this affected both the left and right legs. In October 2013, the Veteran reported a new right leg pain. Physical examination found full hip range of motion without pain and full strength in the right leg. He was found to have new right buttock and lateral calf pain possibly due to lateral recess narrowing at L4-5. He was treated with a lumbar injection in November 2013, but later that month, complained only of left leg pain. He had full strength in the right leg. An MRI of the lumbar spine in November 2014 noted a history of bilateral radicular pain, left greater than right. In July 2014, the Veteran was noted to be mildly weaker with the right leg, and in September 2014, the Veteran reported sudden onset right-side pain. In November 2014, the Veteran's right lower extremity had intact sensation and normal strength and motion. The Veteran attended a VA examination for the spine in December 2013. He was diagnosed with lumbar spine stenosis due to degenerative joint disease. The Veteran reported that he had radiating pain in the right lower extremity, but he was not found to have any sensory or motor deficits in the lower extremities. Muscle strength in the right hip, knee, and ankle was normal, and there was no muscle atrophy. Sensory testing was normal. The examiner noted that the Veteran had pain in the right lower extremity and mild paresthesias and/or dysesthesias in the right lower extremity. The Veteran did have hypoactive reflexes in the knee and ankle. The examiner indicated that the Veteran did have radicular pain or other signs and symptoms due to radiculopathy, but did not provide an ultimate diagnosis regarding the Veteran's right leg. An April 2017 letter from Dr. J.T., one of the Veteran's treating physicians, stated that the Veteran had lower back pain that radiated to the left buttock and left leg. He wrote that the Veteran had numbness and reported weakness in the left leg. He did not write anything regarding the right leg. The Veteran most recently attended a VA examination in June 2017. The examiner found normal muscle strength in the right leg, normal reflexes, and normal sensory examination. A straight leg raising test was normal. The examiner found that the Veteran had left lower extremity lumbar radiculopathy, but found no pain, paresthesias/dysesthesias, or numbness in the right leg. The Board has considered all of the evidence of record, and finds that the preponderance of the evidence indicates that the Veteran does not have a current diagnosis of a right leg disability, including any current diagnosis of right leg radiculopathy. See Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The written submissions of the Veteran describing his radiating pain associated with his lumbar spine disorder are almost entirely regarding pain in the left leg, which has already been granted service connection. The vast majority of the Veteran's treatment records also concern the Veteran's left leg, rather than the right leg. The treatment records are not absent, however, for complaints related to the right leg. The Veteran did report right leg pain and weakness in 2013 and 2014, and the December 2013 VA examination also found mild paresthesias and/or dysesthesias. Although the Veteran has had occasional complaints related to the right leg, the Board finds that the preponderance of the evidence indicates that the Veteran does not have a right leg disability other than a right knee disability, including any current diagnosis of right leg radiculopathy. The Board acknowledges that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. See McClain, 21 Vet. App. at 321. In this case, however, the Board does not find that the Veteran had a diagnosis of right leg radiculopathy that subsequently resolved, but, rather, that he does not have a current diagnosis of right leg radiculopathy, and has not had a diagnosis of right leg radiculopathy at any time during the period on appeal. The preponderance of the medical evidence shows that testing on the Veteran's right leg has repeatedly been found to be normal. Even at the December 2013 VA examination, the Veteran was not found to have any sensory or motor deficits, muscle strength was normal, sensory testing was normal, and there was no muscle atrophy. Private treatment records showed full range of motion, intact sensation, and normal strength in October 2013 and November 2014. At the June 2017 VA examination, the Veteran also had normal muscle strength, reflexes, and sensory and straight leg testing. There was no pain, paresthesias/dysesthesias, or numbness in the right leg. The Veteran was diagnosed only with left leg radiculopathy, but not right leg radiculopathy. There are no other medical records showing any clinical evidence of medical testing that found symptoms of radiculopathy. At no time has there been a finding of decreased senses or strength, and no formal evaluation and diagnosis of right leg radiculopathy or any other right leg disability, other than a right knee disability, has been made. The Board therefore finds that the preponderance of the evidence indicates that the Veteran does not have, and has not had at any time during the period on appeal, a currently diagnosed right leg disability. The Board has considered the lay statements of the Veteran asserting that he does have a current right leg disability. While the Veteran is competent to report on his on some symptoms, such as right leg pain, as he perceives them, he is not competent to opine on the etiology of such symptoms, or whether such symptoms constitute a separate diagnosis from those disabilities already service-connected. See Jandreau, 492 F.3d at 1377; Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's assertion that he sometimes has right leg pain is not inconsistent with his already diagnosed right knee disability, and to the extent that he asserts that this pain should be compensated as a separate right leg disability, the presence of occasional pain alone is insufficient to establish a current right leg disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted). Furthermore, the Veteran's belief that he has a right leg disability is outweighed by the medical opinion of the June 2017 VA examiner and the clinical findings within his examinations and private medical treatment, which do not show any current right leg diagnosis, separate from the right knee disability. In sum, the preponderance of the evidence indicates that the Veteran does not have a current right leg disability, other than a right knee disability, to include right leg radiculopathy, and he has not had a diagnosed right leg disability, at any time during the period on appeal, that is related to any event in service. The Board has again considered the benefit of the doubt rule, but the preponderance of evidence is against the claim, and it is denied. See 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for a right leg disability is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs