Citation Nr: 18145571 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-34 586 DATE: October 29, 2018 ORDER Entitlement to service connection for an orthopedic back condition is denied. Entitlement to service connection for an orthopedic left hip condition is denied. Entitlement to service connection for an orthopedic right hip condition is denied. FINDINGS OF FACT 1. A medical nexus has not been established between an in-service incurrence and a current orthopedic back condition, and the current orthopedic back condition did not manifest within one year of separation from service; continuity of symptomology for an orthopedic back condition has not been established; and an orthopedic back condition is not proximately due to or aggravated by a service-connected disability to include multiple sclerosis (MS), and the Veteran’s non-orthopedic back symptoms have been already compensated by the service-connected disability that was originally characterized as MS. 2. A medical nexus has not been established between an in-service incurrence and a current orthopedic left hip condition, and the current orthopedic left hip condition did not manifest within one year of separation from service; continuity of symptomology for an orthopedic left hip condition has not been established; and an orthopedic left hip condition is not proximately due to or aggravated by a service-connected disability to include MS, and the Veteran’s non-orthopedic left hip symptoms have been already compensated by the service-connected disability that was originally characterized as MS. 3. A medical nexus has not been established between an in-service incurrence and a current orthopedic right hip condition, and the current orthopedic right hip condition did not manifest within one year of separation from service; continuity of symptomology for an orthopedic right hip condition has not been established; and an orthopedic right hip condition is not proximately due to or aggravated by a service-connected disability to include MS, and the Veteran’s non-orthopedic right hip symptoms have been already compensated by the service-connected disability that was originally characterized as MS. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an orthopedic back condition have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 4.14 (2018). 2. The criteria for entitlement to service connection for an orthopedic left hip condition have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 4.14 (2018). 3. The criteria for entitlement to service connection for an orthopedic right hip condition have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 4.14 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to January 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran was notified of his right to a personal hearing before the Board, but the Veteran did not request a Board hearing. Service Connection The Veteran contends that he is entitled to service connection for a number of disabilities. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like arthritis, when manifested to a compensable degree within one year of separation from service; or when continuity of symptomology since separation from service has been established. 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may be granted on a “secondary” basis for disabilities that were proximately due to or aggravated by a service-connected disability. 1. Entitlement to service connection for an orthopedic back condition. At issue is whether the Veteran is entitled to service connection for an orthopedic back condition. Specifically, the Veteran contends that his current back condition is proximately due to his service-connected MS. The weight of the evidence indicates that the Veteran is not entitled to service connection for a back condition, because the Veteran’s disability rating for his MS already anticipates the symptoms that the Veteran complained about during the period on appeal. The Board notes that the Veteran manifested an additional orthopedic back disability during the pendency of the appeal as well, but the weight of the evidence indicates that this is neither related to a period of service nor proximately due to or aggravated by his disability rated as MS. The Veteran’s service treatment records are silent for reports of or treatment for a back condition. The Veteran sought treatment for back pain and left leg pain in March 1986, and the Veteran was diagnosed with MS. The Veteran underwent a VA examination in June 1986. The Veteran reported that, beginning in January 1986, he began to manifest pain in his arms, hips, and lower extremities. The examiner diagnosed the Veteran with MS. The Veteran was not diagnosed with an orthopedic problem of the back. In a July 1986 rating decision, the Veteran was granted service connection for MS. The Veteran underwent another VA examination in June 2006. The examiner noted that the Veteran had a history of MS, but the examiner indicated that it would be a good idea to provide the Veteran with a magnetic resonance imaging (MRI) in order to confirm whether the Veteran manifested plaques on his brain. A February 2007 MRI was silent for plaques on the Veteran’s brain, but it did indicate that the Veteran manifested a cyst of the thoracic spine. The Veteran underwent another VA examination in August 2007. The examiner indicated that in light of the Veteran’s February 2007 MRI it is possible that the Veteran never actually had MS. The Veteran sought treatment for a back condition in March 2012 which indicated that the Veteran’s X-rays suggested degenerative arthritis of the back. The Veteran underwent another VA examination in September 2012. The examiner indicated that the clinical presentation of MS and a spinal cyst is closely related. The examiner further indicated that technological advancements since the Veteran’s original diagnosis indicated that the Veteran has a spinal cyst rather than MS. The Veteran underwent another VA examination in July 2013. The Veteran was diagnosed with orthopedic conditions of the spine. The examiner indicated that the Veteran’s condition was less likely than not proximately due to or the result of the Veteran’s previously service-connected condition, because the Veteran’s back condition was most likely due to age and post-military mechanical events rather than sensory changes from MS. The Veteran’s statements and treatments records indicate that the Veteran continued to manifest a back condition throughout the period on appeal. The Veteran also claimed that he sought treatment for a back condition less than one year after separation from service in his July 2014 substantive appeal to the Board. The weight of the evidence indicates that the Veteran is not entitled to service connection for an orthopedic back condition. The Board notes that the Veteran first began to manifest back symptoms shortly after his period of service, and as a result, the Veteran was ultimately granted service connection for MS. Evidence received since the grant of service connection and assignment of the Veteran’s disability rating for MS indicates that he was more likely than not misdiagnosed with MS, and that actually had a spinal cyst. The Board notes that the Veteran’s percent disability rating for MS is protected because service connection for this disability rating has been in effect for more than 20 years and there is no indication that it was based on fraud. 38 C.F.R. § 3.952. Regardless of the nature and etiology of the Veteran’s disability rating, the Veteran has been assigned a disability rating compensating him for his impairment of his ability to secure and maintain employment due to is non-orthopedic back symptoms. If the Board were to grant the Veteran an additional disability rating, then the Board would be assigning multiple disability ratings under various diagnoses. This practice is known as pyramiding, and it is to be avoided. 38 C.F.R. § 4.14. Therefore, the symptomology caused by the Veteran’s spinal cyst (originally characterized as MS) does not provide an adequate basis for granting service connection. The Board notes that, during the pendency of the appeal, the Veteran developed a separate orthopedic back condition (degenerative arthritis of the back). Unfortunately, this does not provide an adequate basis for service connection either, because the record does not establish an in-service incurrence, a medical nexus to an in-service incurrence or a previously diagnosed condition, or that the criteria for service connection on a presumptive basis have been met. The Veteran’s service treatment records are silent for reports of or treatment for an orthopedic back condition. The Veteran did not begin to manifest an orthopedic back condition until decades after separation from service. A July 2013 VA examination indicates that the Veteran’s back condition is due to age and post-military mechanical events. As previously noted, the Veteran manifested back symptoms dating back to shortly after separation from service, but these symptoms are by all accounts related to a condition originally characterized as MS for which the Veteran has already been compensated. Therefore, the Veteran’s orthopedic back condition did not begin to manifest until decades after separation from service and is unrelated to a period of service or a pre-existing condition. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for a back condition. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a back condition is denied. 2. Entitlement to service connection for an orthopedic bilateral hip condition. At issue is whether the Veteran is entitled to service connection for a bilateral hip condition. Specifically, the Veteran contends that his current bilateral hip condition is proximately due to his service-connected MS. The weight of the evidence indicates that the Veteran is not entitled to service connection for a bilateral hip condition, because the Veteran’s disability rating for MS already anticipates the symptoms that the Veteran complained about during the period on appeal. The Board notes that the Veteran manifested an additional orthopedic bilateral hip disability during the pendency of the appeal as well, but the weight of the evidence indicates that this is neither related to a period of service nor proximately due to or aggravated by his MS. The Veteran’s service treatment records are silent for reports of or treatment for a bilateral hip condition. The Veteran sought treatment for back pain and left leg pain in March 1986, and the Veteran was diagnosed with MS. The Veteran underwent a VA examination in June 1986. The Veteran reported that, beginning in January 1986, he began to manifest pain in his arms, hips, and lower extremities. The examiner diagnosed the Veteran with MS. The Veteran was not diagnosed with an orthopedic problem of the bilateral hips. In a July 1986 rating decision, the Veteran was granted service connection for MS. The Veteran underwent another VA examination in June 2006. The examiner noted that the Veteran had a history of MS, but the examiner indicated that it would be a good idea to provide the Veteran with an MRI in order to confirm whether the Veteran manifested plaques on his brain. A February 2007 MRI was silent for plaques on the Veteran’s brain, but it did indicate that the Veteran manifested a cyst of the thoracic spine. The Veteran underwent another VA examination in August 2007. The examiner indicated that in light of the Veteran’s February 2007 MRI it is possible that the Veteran never actually had MS. The Veteran underwent another VA examination in September 2012. The examiner indicated that the clinical presentation of MS and a spinal cyst is closely related. The examiner further indicated that technological advancements since the Veteran’s original diagnosis indicated that the Veteran has a spinal cyst rather than MS. The Veteran underwent another VA examination in July 2013. The Veteran was diagnosed with bilateral osteoarthritis of the hips. The examiner indicated that the Veteran’s condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition, because the Veteran’s bilateral hip condition was most likely due to age and post-military mechanical events rather than sensory changes from MS. The Veteran’s statements and treatments records indicate that the Veteran continued to manifest a bilateral hip condition throughout the period on appeal. The Veteran also claimed that he sought treatment for a back condition less than one year after separation from service in his July 2014 substantive appeal to the Board. The weight of the evidence indicates that the Veteran is not entitled to service connection for an orthopedic bilateral hip condition. The Board notes that the Veteran first began to manifest hip symptoms shortly after his period of service, and, as a result, the Veteran was ultimately granted service connection for MS. Evidence received since the assignment of the Veteran’s disability rating for MS indicates that the Veteran was more likely than not misdiagnosed with MS, and that the Veteran actually had a spinal cyst. The Board notes that the Veteran’s disability rating for MS is protected, because service connection for this disability has been in effect for more than 20 years and there is no indication that it was based on fraud. 38 C.F.R. § 3.952. Regardless of the nature and etiology of the Veteran’s disability rating, the Veteran has been assigned a disability rating compensating him for his impairment of his ability to secure and maintain employment due to is non-orthopedic hip symptoms. If the Board were to grant the Veteran an additional disability rating, then the Board would be assigning multiple disability ratings under various diagnoses. This practice is known as pyramiding, and it is to be avoided. 38 C.F.R. § 4.14. Therefore, the symptomology caused by the Veteran’s spinal cyst (originally characterized as MS) does not provide an adequate basis for granting service connection. The Board notes that, during the pendency of the appeal, the Veteran developed a separate orthopedic bilateral hip condition. Unfortunately, this does not provide an adequate basis for service connection either, because the record does not establish an in-service incurrence, a medical nexus to an in-service incurrence or a previously diagnosed condition, or that the criteria for service connection on a presumptive basis have been met. The Veteran’s treatment records are silent for reports of or treatment for an orthopedic hip condition. The Veteran did not begin to manifest an orthopedic hip condition until decades after separation from service. A July 2013 VA examination indicates that the Veteran’s hip condition is due to age and post-military mechanical events. As previously noted, the Veteran manifested hip symptoms dating back to shortly after separation from service, but these symptoms are by all accounts related to a condition originally characterized as MS for which the Veteran has already been compensated. Therefore, the Veteran’s orthopedic hip condition did not begin to manifest until decades after separation from service and is unrelated to a period of service or a pre-existing condition. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for an orthopedic bilateral hip condition. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA (CONTINUED ON NEXT PAGE) regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for an orthopedic hip condition is denied. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel