Citation Nr: 18155539 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-54 140 DATE: December 4, 2018 ORDER Entitlement to service connection for a left thigh condition, including as secondary to left ankle instability with degenerative joint disease is denied. Entitlement to service connection for a right thigh condition, including as secondary to status post lateral stabilization of the right ankle is denied. Entitlement to service connection for a left knee condition, including as secondary to left ankle instability with degenerative joint disease is denied. Entitlement to service connection for a right knee condition, including as secondary to status post lateral stabilization of the right ankle is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the left thigh condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include left ankle instability with degenerative joint disease. 2. The preponderance of the evidence is against finding that the right thigh condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include status post lateral stabilization of the right ankle. 3. The preponderance of the evidence is against finding that the left knee condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include left ankle instability with degenerative joint disease. 4. The preponderance of the evidence is against finding that the right knee condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include status post lateral stabilization of the right ankle. CONCLUSIONS OF LAW 1. The criteria for service connection for a left thigh condition have not been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a)-(b) (2018). 2. The criteria for service connection for a right thigh condition have not been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a)-(b) (2018). 3. The criteria for service connection for a left knee condition have not been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a)-(b) (2018). 4. The criteria for service connection for a right knee condition have not been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a)-(b) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to April 1997 and April 1999 to July 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). However, the addition of relevant service department records following an unappealed decision warrants a de novo review of the previously denied claim. 38 C.F.R. § 3.156(c) (2017). In this case the Veteran’s previous claim for service connection for a bilateral knee condition was initially denied in part because her service treatment records had not yet been associated with the claims file. These records have since been associated with the Veteran’s electronic file and are relevant to the issue of service connection. As such, the claims for service connection for a left and right knee condition will be reviewed de novo and new and material evidence is not required. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for a left thigh condition, including as secondary to left ankle instability with degenerative joint disease. The Veteran filed an application for service connection for bilateral hip pain in April 2012. The records show that the Veteran has consistently complained of bilateral hip pain since 2015. The Veteran was given a VA examination in August 2016 with regard to her hips. The examiner opined that the Veteran did not have a current hip diagnosis, only complaints of bilateral hip pain. The Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In any event, the preponderance of the evidence is against the finding of an in-service event, injury, or disease that is related to service or service connected disability. The Veteran’s service treatment records show no complaints of or treatment for her left thigh/hip. She did not begin to complain about this condition until more than 10 years after her separation from service. The Veteran has contended that her current left thigh condition is secondary to her service-connected left ankle instability, however the Veteran is not competent to provide a nexus opinion in this case as the facts are medically complex. Jandreau, 492 F.3d 1372. Aside from the Veteran’s statements, the record contains no evidence that her left thigh condition began during service or is related to her left ankle instability. The August 2016 VA examiner opined that her bilateral hip condition was less likely than not proximately due to or the result of her service-connected left ankle instability because the medical literature does not support an ankle sprain would cause bilateral hip pain or a degenerative joint condition. The examiner went on to opine that the Veteran’s hip pain was more likely related to her weight, as her body mass index was found to be 49. The examiner also opined that the Veteran’s bilateral hip condition was less likely than not aggravated beyond its natural progression by her service-connected bilateral ankle conditions for the same reasons. The Board finds this opinion to be competent and well-reasoned, and thus entitled to significant weight. Moreover, August 2016 x-rays showed normal bilateral hips, with neither joint space narrowed and no osteophyte formation, no intra-articular effusion of either joint, and no bony abnormalities with normal sacroiliac and pubic joints. Accordingly, the preponderance of the evidence is against the finding that an in-service event, injury, or disease caused the Veteran’s left thigh/hip pain. Therefore, entitlement to service connection for a left thigh condition on a direct basis is denied. Furthermore, the preponderance of the evidence is against a finding that the Veteran’s current left thigh/hip pain was proximately caused by or was aggravated by her service-connected left ankle instability. Therefore, entitlement to service connection for a left thigh condition on a secondary basis is also denied. 2. Entitlement to service connection for a right thigh condition, including as secondary to status post lateral stabilization of the right ankle. As noted above, the Veteran filed an application for service connection for bilateral hip pain in April 2012. The records show that the Veteran has consistently complained of bilateral hip pain since 2015. The Veteran was given a VA examination in August 2016 with regard to her hips. The examiner opined that the Veteran did not have a current hip diagnosis, only complaints of bilateral hip pain. The Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In any event, the preponderance of the evidence is against the finding of an in-service event, injury, or disease that is related to service or service connected disability. The Veteran’s service treatment records show no complaints of or treatment for her right thigh/hip. She did not begin to complain about this condition until more than 10 years after her separation from service. The Veteran has contended that her current right thigh condition is secondary to her service-connected status post lateral stabilization of the right ankle, however the Veteran is not competent to provide a nexus opinion in this case as the facts are medically complex. Jandreau, 492 F.3d 1372. Aside from the Veteran’s statements, the record contains no evidence that her right thigh condition began during service or is related to her status post lateral stabilization of the right ankle. The August 2016 VA examiner opined that her bilateral hip condition was less likely than not proximately due to or the result of her service-connected status post lateral stabilization of the right ankle because the medical literature does not support an ankle sprain would cause bilateral hip pain or a degenerative joint condition. The examiner went on to opine that the Veteran’s hip pain was more likely related to her weight, as her body mass index was found to be 49. The examiner also opined that the Veteran’s bilateral hip condition was less likely than not aggravated beyond its natural progression by her service-connected bilateral ankle conditions for the same reasons. The Board finds this opinion to be competent and well-reasoned, and thus entitled to significant weight. As explained above, this opinion is well-supported by the record. Accordingly, the preponderance of the evidence is against the finding that an in-service event, injury, or disease caused the Veteran’s right thigh/hip pain. Therefore, entitlement to service connection for a right thigh condition on a direct basis is denied. Furthermore, the preponderance of the evidence is against a finding that the Veteran’s current right thigh/hip pain was proximately caused by or was aggravated by her service-connected status post lateral stabilization of the right ankle. Therefore, entitlement to service connection for a right thigh condition on a secondary basis is also denied. 3. Entitlement to service connection for a left knee condition, including as secondary to left ankle instability with degenerative joint disease. The Veteran was given a VA examination in August 2016 with regard to her knees. The examiner opined that the Veteran did not have a current left knee diagnosis, only complaints of bilateral knee pain. The Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In any event, the preponderance of the evidence is against the finding of an in-service event, injury, or disease that is related to service or service connected disability. Service treatment records show that the Veteran complained of left knee pain once in January 1997, but reported at the time that she had dislocated her knee six years prior. She was prescribed Anaprox 500mg and instructed to ice and wrap her knee with no weight bearing. The records show no further complaints or treatment for her left knee during service. No problems were noted at the Veteran’s April 1997 separation exam, nor were any problems noted at her October 1998 re-enlistment exam. Thus, a chronic left knee condition is not shown in service. The Veteran contends that her left knee pain is secondary to her service-connected left ankle instability, however the record does not support this contention. A VA examiner opined that the Veteran’s left knee condition is secondary to her weight, age, and gender. The examiner further opined that her bilateral knee condition was less likely than not aggravated beyond its natural progression by her service connection left ankle instability. The Board finds this opinion to be competent and entitled to weight. The record contains no additional medical opinions with regard to the Veteran’s bilateral knees. While the Veteran is competent to report on symptoms, the question of causation of a degenerative process of the knee involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence alone, and the Veteran's own opinion is nonprobative evidence. Accordingly, entitlement to service connection for a left knee condition on a direct and secondary basis is denied. 4. Entitlement to service connection for a right knee condition, including as secondary to status post lateral stabilization of the right ankle. At an August 2016 VA examination, the Veteran was found to have diagnoses of a right knee anterior cruciate ligament tear and right knee joint osteoarthritis. Accordingly, a current disability has been established. Service treatment records from January 2002 show complaints of right knee pain following a fall, but note that the pain improved within a few days. Thus, the Board finds an in-service event. However, the preponderance of the evidence is against the finding of a medical nexus between the Veteran’s current right knee disability and her time in service. The Veteran separated from service in July 2003, and the record does not show another complaint of right knee pain until November 2005, when she underwent an ACL repair. The Veteran underwent a second repair to her right knee in February 2006, wherein it was noted that she had injured her knee “doing some sort of cartwheels about 5 to 6 months ago.” This would indicate that the Veteran’s current right knee disability was the result of an incident that occurred after her separation from service. There is no persuasive medical evidence or persuasive credible lay evidence that the Veteran’s claimed disorder manifested to a compensable degree within a year of her separation of service or had its onset in service and continued ever since service. The VA examiner opined that the Veteran’s bilateral knee condition was less likely than not aggravated beyond its natural progression as a result of her status post lateral stabilization of the right ankle. He went on to explain that the Veteran’s right knee treatment did not start until she tore her ACL after service and that her current condition was due to her weight, age, and gender. The Board finds this opinion to be well supported and thus entitled to significant weight. As the preponderance of the evidence is against the finding of a medical nexus, entitlement to service connection for a right knee condition on a direct basis is denied. Additionally, the preponderance of the evidence is against a finding that the Veteran’s current right knee condition was proximately caused by or was aggravated by her service-connected status post lateral stabilization of the right ankle. While the Veteran is competent to report on symptoms, the question of causation of a degenerative process of the knee involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence alone, and the Veteran's own opinion is nonprobative evidence. Therefore, entitlement to service connection for a right knee condition is denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel