Citation Nr: 1806080 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-41 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to an increased rating for left hip disability, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for right hip disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION 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). The Veteran had active military service from March 1958 to December 1959. He also had service from June 1961 to October 1962, which included 392 days lost beginning in September 1961. These matters come before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for an additional 60 days to allow for the Veteran to submit additional evidence if he desired to do so. The issues of entitlement to increased ratings for left and right hip disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service treatment records are negative for chronic complaints of the spine and the knees, and note a normal spine and normal lower extremities upon separation in 1959 and again in 1962. 2. The earliest clinical evidence of a spine and/or knee disability is not for several decades after separation from service. 3. The most probative evidence of record is against a finding that the Veteran has a spine and/or knee disability causally related to, or aggravated by, service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. U.S.C.A. §§ 1101 , 1131, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a left knee disability have not been met. U.S.C.A. §§ 1101 , 1131, 1112, 1113, 5103A, 5107(b); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for a right knee disability have not been met. U.S.C.A. §§ 1101 , 1131, 1112, 1113, 5103A, 5107(b); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Back Disability The Veteran has been diagnosed with a back disability (e.g. degenerative disc bulging and mild to foraminal stenosis due to degenerative changes at L2-3, L5). His service treatment records (STRs) reflect a single complaint of the back, and he is in receipt of service-connection for bilateral hip disability. Thus, the Board must consider whether his current back disability is related to service and/or caused by or aggravated by his service-connected hip disability. The Veteran's testified at the 2017 Board hearing that he injured his back in a parachuting jump during his first period of service. His STRs are negative for treatment or complaints contemporaneous to a parachuting incident. Moreover, although he contends a back injury due to a parachuting incident in approximately 1959, he was subsequently able to reenlist in 1961. An August 1959 STR reflects that the Veteran complained of a back ache in the latissimum dorsi. It was noted that both shoulders ache when he "picks up anything" and that he had had trouble for the past three or four days. It was further noted that there was no history of injury. The Veteran was diagnosed with a mild sprain. The Veteran indicated at the Board hearing that the Veteran's alleged parachute incident occurred during his first period of service, and also caused him to have a hernia, for which he had surgery in service. However, a review of the STRs reflects that in November 1959, the Veteran was diagnosed with a hernia, which required surgery, after "lifting a pan in the kitchen", and had noticed a walnut sized mass in his groin for approximately five months. It is negative for a parachuting accident causing a hernia or back pain. A January 1960 Line of Duty Investigation reflects that the Veteran reported incurring a left inguinal hernia while lifting pots and pans in the mess hall. The Veteran's December 1959 Report of Medical History for separation purposes reflects that he had a surgical operation (i.e. for the hernia) which resulted in a temporary profile until December 30, 1959, that he had cyst removed as child, that he was allergic to penicillin, and "otherwise history non-significant." His corresponding Report of Medical Examination reflects a normal spine upon examination. The Veteran entered his second period of active service in June 1961. An August 1961 STR reflects that the Veteran reported that he had been injured in a parachute jump and had separated from service in November 1959. The Veteran reported that he still had pain in the hips. The record is entirely negative for complaints of the back. The Veteran's July 1962 Report of Medical Examination reflects a normal spine upon examination. The earliest clinical evidence of a back disability after service is in 2003, more than four decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). VA records reflect a history of joint muscle pains, to include the lower back (June 2003), and complaints of back spasms (February 2004). Those records do not reflect a history of a traumatic injury in service. A March 2012 VA record reflects that the Veteran reported chronic low back pain, knee pain, and hip pain. The onset was noted to be 8-9 years ago, and the Veteran reported injuring his hip and low back in service during parachute jumps. The claims file includes a May 2014 Disability Benefits Questionnaire (DBQ) which reflects the examiner's opinion that it is less likely than not that the Veteran has a current back disability related to service. In rendering his opinion, the examiner considered the Veteran's 1959 STR, the Veteran's contention that he was a parachutist in service and sustained an injury, and the relevant diagnostic findings. The clinician's opinion was based, in part, on the limited complaints/treatment in service, and the Veteran's diagnosed disability. The examiner also considered the Veteran's admission that his pain had been "off and on" with a slow progression of symptoms. The Board acknowledges that the Veteran is competent to describe back pain, stiffness, or other similar symptoms even though such symptoms were not recorded in service, but as the STRs lack the documentation of the combination of manifestations sufficient to identify a significant back disability, and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the STRs, then a showing of continuity of symptomatology after service is required to support the claims. 38 C.F.R. § 3.303(b). There is no continuity of symptomatology after service to support the Veteran's claim. As explained above, the earliest clinical evidence is not for more than four decades after separation. Moreover, there are no lay statements supporting the Veteran's claim, as the Veteran reported symptoms off and on, not continuously, and no other evidence between his second separation from service until the 2000s to support his claim. The Board finds that any statement as to a parachuting injury, or repetitive jumps, causing chronic back pain in the Veteran's first period of active service is less than credible as the Veteran's statements are inconsistent with the contemporaneous evidence of record in the years of service. Importantly, in making such a credibility finding, the Board is not implying that the Veteran has any intent to deceive. Rather, the Veteran may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred. Thus, any clinical opinion based on chronic pain since service lacks probative value. Service connection based on continuity with respect to the back is not warranted as the Veteran had a normal spine upon clinical examination at both separations in 1959 and 1962. Thus, more than two years after his last jump (he did not jump during his second period of service), the Veteran still had a normal spine upon examination. There is also no evidence of a back injury during his second period of service. Further, the Veteran has stated that his back problems had been "off and on" since service, thus, indicating that there was not continuity. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the spine, the Veteran's rheumatoid arthritis, a post service employment history of manual labor, obesity, and the decades between service and a diagnosed disability with only off and on symptoms which slowly progressed over time, and the effects of medication for other conditions. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board has also considered whether service connection is warranted on a secondary basis, but finds that it is not. There is no competent credible evidence of record that indicates that the Veteran's service-connected hip disabilities have caused or aggravated a back disability. A July 2014 VA record reflects an antalgic gait and slow guarding with transistional movement due to low back pain greater than knee pain; not due to hip symptoms. The Veteran has not been shown to be competent to make such a finding, and the record is not indicative of such. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Knee Disabilities The Veteran has been diagnosed with chondrocalcinosis with degenerative joint disease of the right knee (see July 2014 VA clinical record), and left knee cyst (see March 2003 VA clinical record) osteoarthritis, medial meniscus tear, and patellofemoral and medial compartment degenerative changes (see December 2016 VA clinical record). The Veteran's testified at the 2017 Board hearing that he injured his knees during a parachuting jump during his first period of active service. The Veteran's STRs are negative for treatment or complaints contemporaneous to a parachuting incident or for treatment or complaints of the knees. The STRs reflect complaints of the center back and scapula, the hips, venereal disease, abdominal pain, blurring eyes, and hives/lesions. As noted above, the Veteran and his representative indicated at the Board hearing that the Veteran's alleged parachute incident causing knee symptoms occurred during his first period of service. However, there are no clinical records of a parachuting incident with knee symptoms during his first period of service. The Veteran's December 1959 Report of Medical History for separation purposes reflects that he denied bone, joint, or other deformity, and that he had had a surgical operation which resulted in a temporary profile until December 30, 1959, a cyst removed as child, that he was allergic to penicillin, and had an "otherwise history non-significant." His corresponding Report of Medical Examination reflects normal lower extremities upon examination. The Veteran entered his second period of active service in June 1961. His June 1961 Report of Medical History reflects that he denied bone, joint, or other deformity and denied lameness. An August 1961 STR reflects that the Veteran reported that he had been injured in a parachute jump and had separated from service in 1959. The Veteran reported that he still had pain in the hips. The record is entirely negative for complaints of the knees. If the Veteran had complaints of the knees, it seems entirely reasonable that he would have reported it, and it would have been noted in the record, when he sought treatment for his lower extremities. The Veteran's July 1962 Report of Medical History for separation purposes reflects that he again denied bone, joint, or other deformity, or lameness. His corresponding Report of Medical Examination reflects normal lower extremities upon examination. The earliest clinical evidence of a knee disability is in 1996, more than three decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A December 1996 VA clinical record reflects complaints of diffuse joint pain, to include the knees. It was noted that there was "minimal effusions" in his bilateral knees. There was no pain on palpation of the knees, and he had full range of motion at his bilateral knees. The patient had full range of motion without tenderness in his bilateral ankles, and minimal pain on palpation of his metatarsals on both lower extremities - thought to be related to drug-induced lupus from treatment for tuberculosis." Additional records reflect mild degenerative changes in the left knee with a mass/cyst (see March 2003 VA clinical record), a tear of the posterior horn of the medial meniscus of the left knee (see May 2003 VA clinical record), and mild degenerative changes of both knees upon x-ray (see November 2011 VA clinical record). As noted above, a March 2012 VA record reflects that the Veteran reported chronic low back pain, knee pain, and hip pain. The onset was noted to be 8-9 years ago, and the Veteran reported injuring his hip and low back in service during parachute jumps. The report does not reflect that the Veteran reported injuring his knees from jumping. A September 2015 VA record reflects that the Veteran reported longstanding pain since the 1950s. The Veteran also had a diagnosis of gout and rheumatoid arthritis. It was noted that the Veteran had multiple pathologies affecting his knee, and "as such, the etiologies for his knee symptoms are most likely multifactorial in nature." A September 2015 VA surgery consult record reflects that it seemed that the Veteran's etiology was "more like general inflammatory nature of knee as opposed to specific meniscal pathology". The report is negative for an indication that it is as likely as not that the Veteran's knee disabilities are as likely as not due to service. The Board acknowledges that the Veteran is competent to describe knee pain, stiffness, feelings of instability, or other similar symptoms even though such symptoms were not recorded in service, but as the STRs lack the documentation of the combination of manifestations sufficient to identify a significant knee disability, and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the STRs, then a showing of continuity of symptomatology after service is required to support the claims. 38 C.F.R. § 3.303(b). There is no continuity of symptomatology after service to support the Veteran's claim. As explained above, the earliest clinical evidence is not for more than three decades after separation. Moreover, there are no lay statements supporting the Veteran's claim, and no other evidence between separations until the 1990s to support his claim. The Board finds that any statement as to a parachuting injury, or repetitive jumps, causing chronic knee pain in the Veteran's first period of active service is less than credible given the record as a whole. The Veteran's statements are inconsistent with the contemporaneous evidence of record in the years of service, including his separations examinations reflecting normal lower extremities. Again, the Board is not implying that the Veteran has any intent to deceive. Rather, the Veteran may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred. Thus, any clinical opinion based on chronic pain or other symptoms since service lacks probative value. Service connection based on continuity with respect to the knees is not warranted as the Veteran had normal lower extremities upon clinical examination at both separations in 1959 and 1962. Thus, more than two years after his last jump (he did not jump during his second period of service), the Veteran still had a normal knees upon examination. There is also no evidence of a knee injury during his second period of service. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. The Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the knees, the Veteran's rheumatoid arthritis and gout, a post service employment history of manual labor, and the decades between service and a diagnosed disability. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board has also considered whether service connection is warranted on a secondary basis, but finds that it is not. There is no competent credible evidence of record that indicates that the Veteran's service-connected hip disabilities have caused or aggravated a knee disability. The Veteran has not been shown to be competent to make such a finding, and the record is not indicative of such. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. REMAND The Veteran is in receipt of service connection for right and left hip disabilities. The most recent VA examination report is from June 2014. The Board finds that the Veteran should be afforded another VA examination, which complies with the Court's opinion in Correia v. McDonald, 28 Vet. App. 158 (2016) as it relates to 38 C.F.R. § 4.59, which requires that VA examinations include joint testing for pain on both active and passive motion, and both weight-bearing and non-weight-bearing. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims file all outstanding VA and non-VA clinical records for the Veteran's hip disabilities. 2. Schedule the Veteran for a VA examination to determine the current extent of his service-connected right and left hip disabilities. In particular, the examiner is requested to: a. Test the range of motion of the Veteran's hips in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b. The examiner should consider the Veteran's reports of flare-ups (if any) to include frequency and duration of such, and portray any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. c. The examiner should review the prior VA examination report from 2014 and provide a retrospective opinion, if reasonably possible, which identifies the range of motion of the Veteran's hips in active motion, passive motion, weight-bearing, and non-weight-bearing. If it is not possible to provide such an opinion without resorting to mere speculation, please so state and provide an explanation as to why an opinion cannot be given. 3. Following completion of the above, readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs