Citation Nr: 18145068 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-34 441 DATE: October 26, 2018 ORDER Service connection for right heel contusion is denied. Service connection for left heel contusion is denied. Service connection for lumbar stenosis to include as secondary to left and right heel contusions is denied. Service connection for right hip arthritis, status post joint replacement, to include as secondary to left and right heel contusions is denied. Service connection for left hip arthritis, status post joint replacement, to include as secondary to left and right heel contusions is denied. FINDINGS OF FACT 1. The preponderance of the evidence fails to support a diagnosis of left heel contusion. 2. The preponderance of the evidence fails to support a diagnosis of right heel contusion. 3. The Veteran’s lumbar stenosis was not shown in service or for many years later, and has not been found to be etiologically related to service or a service-connected disability. 4. The Veteran’s right hip arthritis, status post joint replacement, was not shown in service or for many years later, and has not been found to be etiologically related to service or a service-connected disability. 5. The Veteran’s left hip arthritis, status post joint replacement, was not shown in service or for many years later, and has not been found to be etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right heel contusion have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for left heel contusion have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for lumbar stenosis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for right hip arthritis, status post joint replacement, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for left hip arthritis, status post joint replacement, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Marine Corps from October 1969 to September 1971. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of a regional office of the Department of Veterans Affairs (VA). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Bilateral Heel Contusions The Veteran seeks service connection for right and left heel contusions which he contends had onset in service or otherwise etiologically related to his active duty service. He filed his service connection claims in January 2014, which was denied by a July 2014 rating decision. The Veteran’s service treatment records reflect he was seen on one occasion for bilateral heel contusions and prescribed light duty and hot soaks in 1969. But, subsequent medical records contain no evidence of any ongoing treatment or findings of residuals of the foot condition. In fact, his September 1971 separation examination shows normal clinical findings with no problems related to feet reported by the Veteran. In particular, lower extremities were found to be normal. Post-service records are negative for any ongoing treatment for or recurrent symptoms of heel contusions. The Veteran was afforded a VA examination in June 2014. After thoroughly reviewing the claims file and conducting a physical examination of the Veteran, the examiner found no current foot disability. In fact, the examiner remarked that the “foot exam was normal” and “there is no continuation of conditions the result of service as there is no medical evidence of a condition in service or soon after service.” Notably, at the time of the examination, the Veteran denied any complaints of the foot condition and for at least 10 years. See Foot Conditions Disability Benefits Questionnaire (DBQ) of June 2014. Upon a review of the evidence, the Board finds the weight of the evidence is against the finding of a present foot disability, and service connection is not warranted. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Specifically, service connection requires a showing of a current disability. A current disability is shown if the claimed condition is present at the time of the claim or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the evidence does not indicate a diagnosis of any right heel or left heel contusions or a foot condition at any point during the course of this appeal. Contemporaneous medical records do not demonstrate treatment for right heel or left heel contusions. Further, there is no indication of a chronic disability manifested by or any residuals thereof from the heel contusions treated in service. Therefore, the Board finds that the record is absent for a current disability for which entitlement for service connection can be established. To the extent that the Veteran claims he has a current chronic disability manifested by the heel contusions in service, his lay assertions are not considered competent medical evidence. Although he is certainly capable of describing the history in this case and competent to report symptoms which are within the realm of his personal experience, he is not competent to render a medical diagnosis of a present disability, as this requires medical expertise. Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Veteran’s statements, standing alone, have little probative value, and the Board assigns more weight to the objective medical evidence of record, such as the VA physician’s opinion of June 2014. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection of bilateral heel contusions. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Back and Bilateral Hip Conditions As explained below, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for a back condition and bilateral hip condition. Initially, the Board notes that the existence of a present disability is established through the Veteran’s medical treatment records produced during the course of his appeal. Private and VA treatment records confirm diagnoses of lumbar stenosis and arthritis of the hips. But, as the determinative issue involves the etiological connection between service and the current disability, competent medical evidence is required. In this regard, the Board finds the June 2014 VA medical opinions constitute the most probative medical evidence of record. A VA back examination report of June 2014 reflects the Veteran’s reported history of low back pain, which the examiner noted was “well after his time in service” and there was no complaint of back pain in service. The examiner indicated that the Veteran was diagnosed with lumbar stenosis in the 1990’s, approximately 20 years after separation from service, and underwent a multilevel fusion in 1991. Further, the examiner acknowledged review of a March 2014 statement from the Veteran’s treating physician stating that the Veteran’s heel contusions contributed to the back and hip conditions, but found no rationale was provided to support such conclusion. In addressing secondary service connection, the VA examiner indicated that the service treatment records did not confirm a significant foot condition while in service to result in a back condition. But, rather the Veteran’s back condition was the “result of aging”. See Back Conditions DBQ dated June 2014. A similar opinion was provided by the same June 2014 VA physician for the Veteran’s bilateral hip condition. Citing to a comprehensive review of the Veteran’s claims file and consideration of the Veteran’s reports, the examiner found that the Veteran had “arthritis in both hips as is seen in his age group, and went on to have total joint replacements” in 2011 and 2012. The examiner concluded that the Veteran’s “hip condition is the sole result of aging.” Further, in addressing the Veteran’s assertion that his current hip condition is the result of the 1969 heel contusions in service, the examiner explained that the Veteran “did not experience a significant foot condition to alter mechanics to result in conditions at either hip or back.” See Hip and Thigh Conditions DBQ dated June 2014. Indeed, the Board acknowledges a March 2014 statement from the Veteran’s treating physician, D.P.C., M.D., but finds the conclusory statement carries less probative value as it is unclear whether he reviewed the Veteran’s claims file and presents no supporting rationale for such findings. See Prejean v. West, 13 Vet. App. 444 (2000). Without a detailed analysis, he states, “I suspect that all of the above conditions, the hip pain status post hip replacement, the lumbar pain status post fusion, contribute to his disability. His old history of injury to the heel while he was in service is remotely contributory to the above condition.” Thus, the Board assigns less probative value to March 2014 D.P.C., M.D.’s statement. Likewise, the January 2015 prescription paper from another treating physician, M.J.S., D.O., with a one sentence statement that the Veteran’s history of “heel contusions while [in] boot camp, may have caused his back and hip problems.” The Board finds this one sentence statement carries significantly less probative value as the physician provided an opinion prefaced with “may,” which is speculative and inconclusive in nature. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Thus, the Board assigns significantly less probative value to the January 2015 M.J.S., D.O.’s statement. As demonstrated above, the June 2014 VA medical opinions are highly probative in determining whether the Veteran has substantiated a claim for service connection. The VA physician’s opinions are based on a comprehensive review of the Veteran’s claims file, consideration of lay evidence of record, and provide well-grounded rationale to support his conclusions. The opinions in particular provide substantial reasoning and explanation as to why the Veteran’s current disabilities are not etiologically related to his active service. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Accordingly, the Board finds great probative value in the June 2014 VA medical opinions. After weighing all the evidence of record, the Board observes that the VA medical opinions stand uncontradicted by any other evidence found in the record and is significantly probative in determining whether the Veteran has substantiated his claim for service connection. The Board has also considered whether the presumption of service connection has been established under 38 C.F.R. § 3.303(b). Although arthritis may be considered a chronic disease for VA purposes, arthritis of the hips was not clinically shown to a compensable degree within one year following the Veteran’s discharge from service. 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that arthritis manifested to a compensable degree within one year following the Veteran’s discharge from service. Id. As noted above, medical records following service do not reflect any problems related to arthritis or affecting his bones or joints until his lumbar surgery in 1990’s, approximately 20 years after separation from service. Further, the weight of the competent and credible evidence relates the current arthritis solely to aging, and not to symptoms in active service from the heel contusions. Accordingly, service connection for arthritis on a presumptive basis has not been shown and therefore, not warranted. 38 C.F.R. §§ 3.303(b), 3.307. Lastly, the Board acknowledges the Veteran’s contentions that his current back and hip conditions are related to his heel contusions in service. To the extent that he seeks to establish a nexus between a current disability and service or a service-connected disability, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. The claimed conditions are simply not the type of disability for which lay evidence may be competent. Thus, the Board assigns more weight to the medical opinion provided by the VA examiner. (Continued on the next page) Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for a lumbar stenosis and bilateral hip condition. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel