Citation Nr: 18144444 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 13-22 176 DATE: October 25, 2018 ORDER Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected degenerative disc disease (DDD) and degenerative changes of the lumbar spine (low back disability), is denied. Entitlement to service connection for a left knee disability, claimed as secondary to service-connected low back disability, is denied. REMANDED Entitlement to service connection for a left foot disability, claimed as secondary to service-connected low back disability, is remanded. FINDINGS OF FACT 1. A bilateral hip disability did not manifest in or is related to service; arthritis did not manifest within the one-year presumptive period; and a disability of the hips is not caused or aggravated by the Veteran’s service-connected low back disability. 2. A left knee disability is not caused or aggravated by service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip disability are not met. 38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for left knee disability, claimed as due to service-connected back disability, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to September 1986, with subsequent service in the United States Navy Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for bilateral hip, left knee, and left foot disabilities. In October 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO). In October 2012, a DRO conference report was issued. In September 2016, the Veteran presented sworn testimony during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In January 2017 and August 2017, the Board remanded the Veteran’s claims for further evidentiary development. For the reasons indicated below, the AOJ complied with the Board’s remand instructions with respect to the issues of service connection for bilateral hip and left knee disabilities. Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Assist In its August 2017 remand, the Board instructed the AOJ to, among other things, obtain an opinion regarding the etiology of the Veteran’s bilateral hip and left knee disabilities. In September 2017, VA opinions were obtained that addressed the etiology of the Veteran’s bilateral hip and left knee disabilities. The September 2017 opinions are adequate, as they were based on a thorough review of the record that included the Veteran’s assertions, provided a detail rationale consistent with the evidence, and complied with the Board’s remand instructions. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Accordingly, the AMC substantially complied with the Board’s remand instructions and no further action is necessary in this regard. Stegall, 11 Vet. App. At 268. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a),(b). 1. Entitlement to service connection for a bilateral hip disability. The Veteran claims that he has experienced hip problems since his military service. See, e.g., the Veteran’s statement dated July 2009. Alternatively, he contends that his bilateral hip disability is due to his service-connected low back disability. See, e.g., Board hearing transcript dated September 2016. The Veteran has a current bilateral hip diagnoses, namely mild degenerative arthropathy of the bilateral sacroiliac joints. See VA x-ray report dated August 2012. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a “chronic disease” for service connection purposes. 38 C.F.R. § 3.309 (a). Additionally, where a veteran served ninety days or more of active service, and a chronic disease such as arthritis becomes manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C. §§ 1112, 1113; 38 C.F.R. § 3.307 (a). The Veteran’s service treatment records ( STRs ) show that in April 1978, he complained of a groin pain radiating down his leg, the examining physician stated that it “appears to be “ham string ligaments” and assessed viral syndrome. In an August 1978 STR, the physician noted the Veteran’s status-post chronic groin pull and that he was asymptomatic and that it is resolving “nicely.” A January 1982 report of medical examination shows normal clinical evaluation of the lower extremities. His STRs appear to reflect that he did not undergo a separation examination upon his discharge from his active military service. Private treatment records dated in February 2001 show that the Veteran was in a motor vehicle accident in 1995. A March 1998 magnetic resonance imaging (MRI) scan of the pelvis reflects no abnormalities of the hips, to include no evidence of fractures thereof or osteomiosis of the femoral heads. A December 2007 CT of the abdomen and pelvis was negative. A June 2008 x-ray of the pelvis and bilateral hips showed no fracture or dislocation and revealed that hip joint spaces were “relatively well maintained and no artticular erosion…” A July 2011 right hip x-ray showed small well circumscribed osteophyte off the lateral edge of the acetabulum; the physician a possible labral tear. In a private August 2011 treatment report, the private physician assessed right hip labral tear, based on an arthrogram. In August 2012, the Veteran was afforded a VA examination. The VA examiner diagnosed mild degenerative arthropathy of the bilateral sacroiliac joints based on an August 2012 x-ray report. The examiner reviewed the claims file, interviewed the Veteran, and opined that his bilateral hip disability is less likely than not due to his military service. The examiner reasoned that the Veteran’s bilateral hip disability is due his age and post-service injuries. The examiner noted, in an examination report conducted for the Veteran’s low back disability, that in 1995 and in 2001 the Veteran was involved in motor vehicle accidents. The examiner explained that although the Veteran was diagnosed in-service with a right sided inguinal hernia, an in-service electromyography (EMG) study of the right leg and x-rays of the right hip were normal during service. Furthermore, the examiner stated that although the Veteran reports that he has had ongoing problem since service, there is no documentation of hip/groin pain between his separation from service to 2001. The examiner indicated that the Veteran’s mild degenerative changes of the hips would not be contribute to symptoms in his groin. In an April 2017 VA opinion, a VA nurse practitioner (NP) found that the Veteran does not have a current hip disability and provided negative nexus opinions between the Veteran’s bilateral hip disability, military service, and his service-connected back disability. The NP further stated that the August 2012 examiner diagnosed mild DJD hips. Moreover, the NP stated that “any perception that this [V]eteran has a back condition related to service appears to be in error.” The NP concluded that since the Veteran did not have a back injury related to service an opinion addressing other separate joint disabilities is “irrelevant.” In September 2017, a VA opinion was obtained. The VA physician reviewed the Veteran’s claims file and opined that his bilateral hip disability is less likely than not due to his military service or proximately due to or the result of the Veteran’s service-connected disabilities. As to the Veteran’s claim on a direct service connection, the physician reasoned that a 1979 in-service x-ray and a March 1998 post service MRI of the hips showed no evidence of arthritis of the hips. The physician further stated that the first evidence of arthritis of the hips was in a 2012 x-ray With respect to the claim on a secondary basis, the September 2017 physician reasoned that there is no mechanism that would cause a relationship between a low back disability and arthritis the hip. Furthermore, the physician stated that in the case of this Veteran, his arthritis of the hips is due to aging and genetics. The physician indicated that there has been no progression of the arthritis of the hips, therefore, there is no evidence of aggravation caused by the service-connected low back disability. The physician, also, reasoned that there has been no gait abnormalities or other mechanical forces that are due to his service-connected low back disability that would affect the functions of hips. Therefore, there is no physiologic mechanism where the service-connected low back disability would aggravate his arthritis of the hips. Notably, in the physician rationale, he included an extensive detailed outline of the Veteran’s bilateral hip history. For the following reasons, entitlement to service connection for a bilateral hip disability is not warranted. The evidence of record shows current a bilateral hip disability, namely mild degenerative arthropathy of the bilateral sacroiliac joints. See VA examination report dated August 2012. Therefore, a current disability is demonstrated. The Veteran’s STRs document his reports of groin pain radiating down his leg and a diagnosis of a groin pull. Accordingly, an in-service disease or injury has been demonstrated. As to the remaining element of service connection on a direct basis, in this case there are three opinions that address whether the Veteran’s bilateral hip disability is due to his military service. The April 2017 VA opinion that found that the Veteran does not have a current hip disability and provided a negative nexus opinion between his bilateral hip disability and his military service is afforded no probative value. First, the NP’s opinion was inconsistent and based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). For instance, the NP stated that the Veteran did not have a current bilateral hip disability; and then, however, the NP indicated that the August 2012 examiner diagnosed mild DJD hips. Notably, the August 2012 x-ray report showed a diagnosis of mild degenerative arthropathy of the bilateral sacroiliac joints. Second, the NP’s finding that the Veteran’s back disability is unrelated to service is irrelevant, as the Veteran is in receipt of service connection for this disability. The remaining medical opinions of record are the August 2012 and September 2017 VA opinions that found that the Veteran’s bilateral hip disability is not related to his military service. The August 2012 and September 2017 opinions are entitled to significant probative weight, as the VA physicians reviewed the Veteran’s claims file and provided opinions with rationales that are consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Importantly, the August 2012 and September 2017 physician cited to the Veteran’s in-service diagnostic testing that reflected normal findings of the hips. Significantly, there is no medical opinion to the contrary. As to certain chronic diseases, such as arthritis, or degenerative changes, in the hips, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in this case, the Veteran’s arthritis of the hips (diagnosed as mild degenerative arthropathy of the bilateral sacroiliac joints) was not diagnosed in service, did not manifest to a compensable degree in service, or was diagnosed within a presumptive period, and continuity of symptomatology is not established. The September 2017 VA physician indicated that the Veteran was not diagnosed with arthritis of the hips until 2012. To this extent, prior to the August 2012 x-ray report that showed mild degenerative arthropathy of the bilateral sacroiliac joints, multiple diagnostic testing showed no arthritis in the hips. For instance, a March 1998 MRI scan of the pelvis reflected no abnormalities of the hips. In short, the Veteran’s August 2012 diagnosis of mild degenerative arthropathy of the bilateral sacroiliac joints is two decades after his separation from service and outside of the applicable presumptive period. Moreover, there is no evidence that the Veteran had symptoms during the presumptive period that were early manifestations of arthritis. See 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). While the Veteran is competent to report having experienced symptoms of bilateral hip pain since service, is not competent to provide a diagnosis or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, particularly the August 2012 and September 2017 opinions, which establishes that these symptoms are instead attributable to his age and post-service injuries, such as the Veteran’s 1995 and in 2001 motor vehicle accidents. Therefore, the Veteran’s claim for service connection for a bilateral hip disability on a direct, presumptive (chronic), or chronicity or continuity basis is not warranted. As to service connection on a secondary basis, the September 2017 physician opined that the Veteran’s bilateral hip disability was not caused or aggravated by his service-connected low back disability. This opinion is afforded significant probative value, as it was based upon a review of the medical records and provided an informed rationale based on an accurate characterization of the evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Importantly, there is no medical opinion contrary. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for bilateral hip disability, on a direct, secondary, and presumptive basis. The benefit of the doubt doctrine is thus not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for left knee disability. The Veteran claims that his left knee disability is caused or aggravated by his service-connected low back disability. See, e.g., Veteran’s claim dated August 2009. The Veteran does not allege, nor does the evidence show, that his left knee disability is due to his active duty service. Specifically, the Veteran reported that his “left knee condition did not develop until [he] was in the reserves…” See Veteran’s notice of disagreement dated August 2010. Therefore, the Board will not address the Veteran’s service connection claim for a left knee disability on a direct service connection basis. In an April 2017 examination report, a NP diagnosed degenerative arthritis of the left knee and opined that it is less likely than not due to or the result of the Veteran’s service-connected disability. The NP reasoned that there is no evidence of a left knee disability related to the back “contributing to aggravating” the knee disability. The NP indicated that the Veteran was not diagnosed with a knee disability until 2001. Furthermore, the NP provided that the [V]eteran has a back condition related to service appears to be in error.” In September 2017, a VA opinion was obtained. The VA physician indicated that the Veteran had current diagnoses of left knee degenerative medial meniscus tear and chondromalacia. The physician reviewed the Veteran’s claims file and opined that the Veteran’s left knee disability is less likely than not proximately due to or the result of the Veteran’s service-connected low back disability. The physician reasoned that the Veteran did not have abnormal gait that was related to his service-connected low back disability. Furthermore, the physician indicated that meniscal tears are secondary to twisting injuries, but can occur as degenerative changes in older patients with minimal twisting or stress. The physician stated that the Veteran had a known twisting injury when he sprained his non-service connected ankle. The physician found that the twisting of the ankle was the most likely cause for the meniscal tear of the left knee. Furthermore, the physician stated that the Veteran’s chondromalacia, is caused by a stress injury related to prolonged running or other sports activities. Furthermore, the physician indicated that the Veteran’s treatment records have consistently shown normal gait, and there has been no worsening of left knee caused by service-connected low back disability, as there has been no physiologic alteration of mechanical forces which would aggravate the left knee. For the reasons below, entitlement to service connection for a left knee disability, on a secondary service connection basis, is not warranted. At the outset, the April 2017 VA opinion afforded no probative value. The NP’s opinion was irrelevant and provided no explanation as to why the Veteran’s left knee disability is not related to his service-connected low back disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to probative weight). For instance, the NP’s finding that the Veteran’s back disability is unrelated to service is irrelevant, as the Veteran is in receipt of service connection for this disability. The remaining opinion of record is the September 2017 opinion that found that the Veteran’s left knee disability was not caused or aggravated by his service-connected low back disability. The opinion is afforded significant weight as the VA physician explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In short, the competent evidence of record demonstrates no relationship between the Veteran’s left knee disability and his service-connected low back disability. There are no medical opinions to the contrary. As a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is not competent to opine as to the etiology of his current left knee disability, as that is a complex medical matter that relates to an internal medical process that extend beyond an immediately observable cause-and-effect relationship of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay person competent to identify varicose veins). For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claims for entitlement to service connection for a left knee disability. The benefit of the doubt doctrine is thus not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a left foot disability is remanded. In its August 2017 remand, the Board instructed that a medical opinion be obtained to address the nature and etiology of any left foot disability since approximately July 2009, that is, the date of the Veteran’s service connection claim. In September 2017, a VA examiner opined MTP joint degenerative joint disease, plantar fasciitis, and left heel spur syndrome was not related to the Veteran’s service-connected low back disability. The examiner’s opinion was predicated largely on the fact that the Veteran did not have current diagnoses of MTP joint degenerative joint disease and plantar fasciitis, left heel spur syndrome, on the most recent VA examination. Notably, service connection may be warranted for a disability that resolved during the pendency of the appeal. Here, the September 2017 VA examiner provided a detailed account of the medical history of the Veteran’s foot problems, which included left foot diagnoses both during and shortly prior to the submission of his service connection claim. Critically, however, the examiner failed to address the etiology of these current disabilities, even though they may have resolved by the time of the most recent VA examination. Accordingly, a remand is necessary to obtain a VA opinion. The matter is REMANDED for the following action: Arrange to obtain a medical opinion from an appropriate VA physician addressing the etiology the Veteran’s left foot disability. A copy of this remand must be made available to the physician for review in connection with the requested opinion. The physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected low back disability caused or aggravated his left foot disabilities (diagnosed as heel spur syndrome, plantar fasciitis of the left foot, sprained left dorsum, degenerative changes of the first metatarsophalangeal joint, and collapse of left foot arch). If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel