Citation Nr: 18143091 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-19 495 DATE: October 18, 2018 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a right leg condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s low back condition is not attributable to service. 2. The Veteran’s left hip condition is not attributable to service. 3. A January 1975 report of medical examination at service enlistment indicated the Veteran had abnormal lower extremities with moderate genu varus noted in the summary of defects; the evidence demonstrates that the pre-existing genu varus was not aggravated by service. 4. The Veteran does not have any service-connected disabilities; therefore, the criteria for TDIU have not been met. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). 4. The criteria for entitlement to service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). 5. The criteria for TDIU have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to August 1975. Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the claimant’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (2012). Entitlement to service connection on a direct basis requires (1) evidence of current disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Low Back and Left Hip The Veteran filed November 2012 claims for service connection for a low back condition and left hip condition. See November 2012 VA Form 21-526. He contends that while he was running in basic training his back and hip were “giving out” and when he told his sergeant, the sergeant made him keep running. See August 2013 Statement in Support of Claim. The first and second Shedden elements are met and not in dispute. The Veteran has currently diagnosed lumbar spine degenerative disc disease and left hip osteoarthritis. See March 2016 VA examination report. Service treatment records (STRs) include a January 1975 report of medical examination at service enlistment, which indicated the Veteran had a normal spine. STRs also include July 1975 chronological records of medical care noting low back pain and an August 1975 medical board narrative summary report noted that in beginning basic training, the Veteran noticed again, low back, left hip, and right knee pain and for this reason was referred to the orthopedic clinic in August 1975. However, the third Shedden element has not been met. The March 2016 VA examiner opined that the Veteran’s low back condition and left hip condition were less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, the examiner stated that the Veteran was pulled from basic training in day six of training as a result of back, hip, and leg pain and there was no trauma or precipitating event. The examiner stated that it is not medically logical to conclude that the Veteran’s current complaints began as a result of his military service. The examiner explained that the current x-rays show mild degenerative changes consistent with the normal aging process, which is not connected to service. In assessing the service connection claims, the Board has considered the lay assertions of record including from the Veteran, his wife, his son, his daughter, his brother, and his friend. Lay persons are competent to offer testimony regarding observable symptomatology and the Veteran is competent to report pain and “giving out” in service regarding his low back and left hip. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of lumbar spine degenerative disc disease and left hip osteoarthritis to include whether it is related to a period of service, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms of pain, any opinion regarding whether lumbar spine degenerative disc disease and left hip osteoarthritis are related to his military service requires medical expertise that the Veteran, his wife, his daughter, his son, his brother, and his friend have not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Thus, the Board finds that the question of whether the Veteran’s lumbar spine degenerative disc disease and left hip osteoarthritis are related to his active military service is too complex to be addressed by a layperson as such connection or etiology is not amenable to observation alone. Hence, the Veteran’s opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. While the Board has considered the Veteran’s subjective complaints, it gives greater weight to the objective medical evidence and the opinion of the March 2016 VA examiner. Therefore, the preponderance of the evidence is against the claims for service connection for lumbar spine degenerative disc disease and left hip osteoarthritis; thus, the benefit of the doubt rule does not apply. Accordingly, service connection for lumbar spine degenerative disc disease and service connection for left hip osteoarthritis must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 54-56. Right knee condition and right leg The Veteran contends that he is entitled to service connection for right knee and right leg conditions. Specifically, the Veteran reported that he twisted his right leg and fell while running in basic training and was sent to the medical center where x-rays confirmed he had an injury. See August 2013 Statement in Support of Claim. He contends that the injury “ruined” him and he did not want to be discharged, but did not understand the papers he was signing. Id. The Veteran contends that he did not enter the military with this condition. See March 2014 notice of disagreement (NOD). The Veteran has reported right leg pain and has currently diagnosed right knee degenerative arthritis. See March 2016 VA examination report. A review of the Veteran’s January 1975 report of medical examination at service enlistment indicated the Veteran had abnormal lower extremities with moderate genu varus noted in the summary of defects. In his January 1975 report of medical history at service enlistment the Veteran reported that he now has or has ever had bone, joint, or other deformity and the physician’s summary noted genu varus-mild, asymptomatic. Therefore, the presumption of soundness never attached. See 38 U.S.C. § 1111 (2012). Thus, the question to be resolved in this case is whether the Veteran’s pre-existing genu varus underwent an increase in severity during active service. If yes, the presumption of aggravation attaches which can only be rebutted by a showing that the increase in disability is clearly and unmistakably due to the natural progress of the disease. An August 1975 medical board narrative summary report indicated that on his sixth day of training, the Veteran presented to the orthopedic clinic with a chief complaint of right knee pain and low back pain. The report indicated that the Veteran has had crooked legs like his father for as long as he could remember and there was no history of trauma. The report noted that on beginning basic training, the Veteran noticed again, low back, left hip, and right knee pain and for this reason was referred to the orthopedic clinic in August 1975. Upon physical examination, Dr. W. noted the Veteran had marked external tibial torsion of the legs, right greater that the left; there was marked bowing of the proximal tibia with a varus deformity; and there was an increased Q-angle. X-rays confirmed Dr. W.’s impression and Dr. W. evaluated the Veteran with vitamin-D resistant rickets and recommended he be discharged. The disposition was that the Veteran’s condition existed prior to entry into service and was not aggravated by service beyond the normal progression of the disease and discharge was recommended. In an August 1975 request for discharge, the Veteran acknowledged that he had been advised that a medical board determined that at the time of his enlistment into the military service, he did not meet the minimum standards of enlistment and that he met the criteria for discharge. In addition to reviewing the STRs individually, the Board has considered them in the context of the entire record, but continues to find that the objective evidence of record does not support aggravation. The March 2016 VA examiner opined that the Veteran’s right knee and lower leg condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service, injury or illness. In support of his opinion, the examiner stated that the Veteran was pulled from basic training in day six of training as a result of back hip and leg pain and there was no trauma or precipitating event. The examiner explained that he was subsequently discharged, EPTS with diagnosis of “probable Ricketts.” The examiner stated that it is not medically logical to conclude that the Veteran’s current complaints began as a result of his military service. The examiner explained that the current x-rays show mild degenerative changes consistent with the normal aging process, which is not connected to service. In assessing the service connection claim, the Board has considered the lay assertions. Lay persons are competent to offer testimony regarding observable symptomatology, and the Veteran is competent to report pain and discomfort regarding his right leg and right knee during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the right knee degenerative arthritis falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms of pain, any opinion regarding whether his right knee degenerative arthritis is related to his military service requires medical expertise that the Veteran, his wife, his daughter, his son, his brother, and his friend have not demonstrated because right knee degenerative arthritis can have many causes. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Thus, the Board finds that the question of whether the Veteran’s right knee degenerative arthritis was related to his active military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone and the Veteran’s opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board finds that the more probative evidence of record demonstrates that a pre-existing right knee and right leg moderate genu varus condition was not aggravated by service. Although right leg/knee pain was noted in STRs, an August 1975 medical board narrative summary report indicated that on his sixth day of training, the Veteran presented to the orthopedic clinic with chief complaint of right knee pain and low back pain. The report indicated that the Veteran has had crooked legs for as long as he could remember and there was no history of trauma. The report noted that on beginning basic training, the Veteran noticed again, low back, left hip, and right knee pain and for this reason was referred to the orthopedic clinic in August 1975. Upon physical examination, Dr. W. noted the Veteran had marked external tibial torsion of the legs, right greater that the left; there was marked bowing of the proximal tibia with a varus deformity; and there was an increased Q-angle. X-rays confirmed Dr. W.’s impression and Dr. W. evaluated the Veteran with vitamin-D resistant rickets. The disposition was that the Veteran’s condition existed prior to entry into service and has not been aggravated by service beyond the normal progression of the disease and discharge was recommended. Further, the March 2016 VA examiner opined that the Veteran’s right knee degenerative arthritis not aggravated beyond its natural progression by an in-service, injury or illness. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board finds that the contemporaneous medical evidence generated during service is far more credible and probative than the Veteran’s assertion years after service that his current right knee degenerative arthritis worsened as the result of service. In sum, the preponderance of the evidence establishes that the Veteran’s pre-existing genu varus did not chronically worsen or increase in severity during his period of service. Based on the foregoing, the Board finds the Veteran’s moderate genu varus, which existed prior to service, was not aggravated by service and the claims for service connection for a right knee condition and service connection for a right leg condition are denied. TDIU The Veteran filed an April 2014 claim for TDIU. See April 2014 VA Form 21-8490. Total disability is considered to exist when the evidence shows the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). In this case, the record reflects that the Veteran does not have any service connected disabilities. Therefore, entitlement to TDIU must be denied. The doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel