Citation Nr: 1806975 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-03 464A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a neck disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a low back disability as secondary to a service-connected right knee disability. 3. Entitlement to service connection for a left hip disability as secondary to a service-connected right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 to March 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office, and were remanded in June 2015. In September 2014, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of that hearing is of record. FINDINGS OF FACT 1. The probative, competent evidence does not demonstrate that any neck disability is related to service or is caused or aggravated by a service-connected right knee disability. 2. The probative, competent evidence does not demonstrate that any low back disability is caused or aggravated by a service-connected right knee disability. 3. The probative, competent evidence does not demonstrate that any left hip disability is caused or aggravated by a service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.310. 3. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the Veteran has argued that a May 2010 VA examination was at least partially inadequate because the examiner did not properly observe the Veteran's gait. In general, "the presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). Additionally, the allegation relates to the proper conduct of a medical examination where the examiner has some discretion in the manner it is conducted and, obviously, a medical professional is better placed than lay persons, including members of the Board, to determine whether diagnostic tests have been properly administered. See, e.g., Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (cautioning the Board against substituting its medical judgment for that of a medical professional without "point[ing] to a medical basis other than the panel's own unsubstantiated opinion"). The examiner reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, the Board finds that the May 2010 examination is adequate. The Board also notes that the October 2015 VA examiner indicated on the examination report that the claims file was not reviewed. However, the examiner clearly cited to evidence located in the claims file, including service treatment records and the Veteran's lay statements. Furthermore, in a November 2015 addendum opinion another VA examiner opined that it was likely that the October 2015 examiner reviewed the claims file before providing the opinion. Accordingly, the Board finds that the notation that the claims file was not reviewed was likely made in error, the examination report is adequate for purposes of determining service connection, and that there was substantial compliance with the Board's June 2015 remand directive that the examiner review the Veteran's lay statements and hearing testimony. Stegall v. West, 11 Vet. App. 268 (1998). 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 a duty to assist argument). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran asserts that he has neck, low back, and left hip disabilities which are caused or aggravated by his service-connected right knee disability, specifically as a result of an abnormal gait and compensating for the disabled extremity. Alternatively, he has asserted that his neck disability may be directly related to his active duty service. There is no competent indication, nor does the Veteran suggest, that his low back or left hip disabilities are directly related to service or had onset within one year of service. Accordingly, the Board will not address a direct theory of service connection with respect to those claims. Initially, the Board notes that the record reflects diagnoses of cervical spondylosis, degenerative joint disease (DJD) of the cervical spine, chronic low back strain, and minimal DJD of the left hip. The Veteran first underwent VA examination in May 2010. The examiner thoroughly reviewed the Veteran's complaints and medical history and diagnosed DJD of the cervical spine and left hip as well as chronic low back strain. Following examination of the Veteran and review of the record, the examiner ultimately opined that these disabilities were not likely related to or aggravated by the Veteran's service-connected right knee disability. In support of that opinion, the examiner stated that the Veteran's gait was normal during the current examination and a neurological examination, and that the Veteran's joint and spine conditions were separate from and not related to his right knee disability. As a result of the Veteran's assertion that his neck disability may be directly related to in-service lifting or injury, the Veteran again underwent VA examination in connection with this claim in October 2015. The examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by service. In support of the opinion, the examiner stated that, based on the Veteran's lay statements, service treatment records, physical examination, and history, there was no direct correlation between any in-service treatment and his current condition. Furthermore, the examiner noted that the cervical spine was known to have herniations which were asymptomatic in numerous individuals and that the Veteran had spondylosis, which was normal for his age-related arthritis and did not correlate with any in-service injuries. Additionally, the examiner noted that more than 10 years separated that purported in-service injury and more recent complaints of neck pain. Treatment records and lay statements throughout the period on appeal reflect symptoms consistent with those noted upon examination. The Board notes that VA treatment records throughout this period contain frequent notations of a normal gait. Upon review, the Board finds service connection cannot be granted for the Veteran's neck, low back, and left hip disabilities. With respect to direct service connection, the Veteran has asserted only that his neck disability may be directly related to service and that he complained in service but his complaints were not noted in the service treatment records. The only competent medical opinion on this question is the October 2015 VA opinion, which is fully supported and negative to the Veteran's claim. The service treatment records do not reflect any complaints related to the neck, and the evidence does not demonstrate onset of a neck disability in or within one year of service. With respect to secondary service connection, the only competent medical opinion is the May 2010 VA opinion, which is fully supported and negative to the Veteran's claim. While the Veteran asserts that he has an abnormal gait related to his service-connected right knee disability which results in excessive weight bearing on the left side of his body and causes or aggravates his disabilities, a number of clinicians noted that the Veteran walks with a normal gait. In reaching these conclusions, the Board has considered the lay assertions of the Veteran. However, while lay persons are competent to report on what they have experienced or witnessed, the diagnosis and etiology of specific disabilities require medical testing and expertise to determine. Thus, as a lay person, the opinion of the Veteran as to the onset of his current disabilities and whether he has an altered gait sufficient to cause injury is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Board finds the VA opinions to be of greater probative value than the lay contentions of record, and finds that the most probative and credible evidence is against a finding of service connection for the Veteran's neck, low back, and left hip disabilities. Thus, for all the foregoing reasons, the claims for service connection for neck, low back, and left hip disabilities are denied. In reaching the decision to deny these claims, the Board has considered the applicability of the "benefit-of-the-doubt" rule, but it is not for application because the most probative evidence of record is against the claims. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for a neck disability, to include as secondary to a service-connected right knee disability, is denied. Entitlement to service connection for a low back disability as secondary to a service-connected right knee disability is denied. Entitlement to service connection for a left hip disability as secondary to a service-connected right knee disability is denied. ___________________________j_________________ Rebecca N. Poulson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs