Citation Nr: 20047745 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 13-31 640 DATE: July 16, 2020 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran sustained an injury to the iliac crest during service unrelated to the currently diagnosed right hip, leg, and ankle disabilities. 2. The preponderance of the evidence is against finding that the current right hip, leg, and ankle disabilities, to include arthritis, are related to the Veteran’s active duty service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria to establish service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 3. The criteria to establish service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1961 to February 1965. This appeal stems from a July 2012 rating decision. In October 2017, the Board remanded the case for further development, to include providing the Veteran with VA examinations. Subsequent to the Board’s remand, in a July 2018 rating decision, the RO granted service connection for a low back disability. This low back grant is considered a full grant of the benefits sought on appeal and that issue is no longer in appellate status. Thereafter, in June 2019, the Board remanded the appeal an additional time in order to obtain addendum medical opinions. The case has since returned for further appellate consideration. Service Connection – Applicable Laws and Regulations 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). 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). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Arthritis is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disease in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have 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) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic’ disease became manifest to a degree of 10 percent within 1 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. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran asserts that he injured his right hip, leg, and ankle during service and that his currently diagnosed disabilities are related to this injury. For the reasons expressed below, the Board finds that service connection for right hip, leg, and ankle is not warranted. The Veteran has current diagnoses of arthritis of the right hip, knee, and ankle. See e.g., December 2019 VA examination report. However, the Veteran’s service treatment records are silent to any complaints, treatment, or diagnosis of right hip, leg, or ankle disabilities. In September 1963, it was noted that the Veteran fell and injured his iliac crest, and in June 1964, it was noted that he was caught between two truck. During his February 1965 discharge examination, all extremities were normal on clinical examination. The medical professional noted that the Veteran reported being “pinned between two vehicles” in 1964; however, he indicated that he was examined, x-rays at the time of the accident were negative, and there were no additional complications or sequelae. Specifically, the Veteran checked “no” to any knee, foot, bone/joint problem, or arthritis. According to May 2006 private treatment records, the Veteran complained of various cramps in his legs for years. The assessment was muscle cramps. August 2008 private treatment records indicated that the Veteran had chronic leg swelling and he reported trying to use an ankle brace, which seemed to make it worse. The diagnosis was lower extremity edema. The Veteran was recommended to elevate his leg and avoid salt intake. In June 2010, it was noted that the Veteran thought he had swelling of his feet because of standing for seven hours straight without moving very much and because he had arthritis. In September 2010, it was noted that the Veteran still had swelling of his ankles but that it improved. The medical professional assessed trace ankle edema. In a June 2011 statement in support of claim authored by a third party, it was noted that the Veteran suffered a number of injuries while on active duty. Specifically, it was noted that he was working in the motor pool when another truck driver backed into him and pinned him between the bumpers of two 2.5-ton trucks. The Veteran sustained contusions to his lower back, right hip, right leg, and right ankle. He was taken to the base hospital for x-rays and was prescribed pain medication. He was not held for observation or told to return for any follow-ups. According to VA treatment records dated from 2012 to 2015, the Veteran continued to receive treatment for lower extremities trace ankle edema and complained of right ankle pain that prevented activity. A December 2011 ultrasound of the right ankle showed evidence of mild atherosclerotic disease within the right lower extremity arterial segments. He also complained of right hip pain and leg cramps for the first time in 2011. X-rays of the right ankle taken in December 2015 showed no evidence of a fracture and severe joint space narrowing of the talotibial compartment with widening of the ankle mortise. In the December 2012 notice of disagreement (received as a statement in support of claim), the Veteran indicated that he disagreed with the denial of his claims. He noted that his injuries were documented in his service treatment records and were severe enough to place him on a profile in October 1964, four and half months later. Lastly, it was noted that the disabilities worsened with his age. In December 2017, the Veteran underwent VA hip, knee/leg, and ankle examinations, at which time the examiner rendered diagnoses of bilateral hip osteoarthritis, left hip strain, and right ankle arthritis. Although a specific diagnosis of the claimed right leg disability was not rendered, the examiner noted painful limitation of motion of the right knee. To the question whether the Veteran had a currently diagnosed right hip, leg, or ankle disability that was at least as likely as not incurred in or caused by the documented disability during service, the examiner simply stated “no.” As a rationale, regarding the right hip, the examiner stated, “Insufficient current documented medical evidence to support the aforementioned assertion/claim. Also refer to the DBQ MUSC HIP. (Although based on the 1963 STRs, the LEFT hip/groin injury pattern is most c/w sprain/strain.” Regarding the right leg and right ankle disabilities, the examiner stated, “Insufficient current documented medical evidence to support the aforementioned assertion/claim. Also refer to the DBQ MUSC KNEE/LEG” and “DBQ MUSC Ankle.” The only explanation provided was regarding why the diagnosis of mild varicose veins in both legs was not related to the same diagnosis in service because there were no complaints about it after 1964. Subsequent to the Board’s most recent remand, the Veteran underwent December 2019 VA hip, knee/leg, and ankle examinations, at which time the examiner rendered diagnoses of bilateral hip arthritis, right knee arthritis, and right ankle arthritis. After review of the record and examination of the Veteran, the examiner opined that the Veteran’s right hip, leg, and ankle disabilities were less likely as not caused by or the result of his military service. The examiner explained that a review of the service treatment records showed that the Veteran did not report any hip, knee, or ankle injury or pain during service. He did have a history of injury to the right iliac crest when pinned between two vehicles in June 1964. At the time, he complained of pain in the right iliac crest and was diagnosed with contusion and treated appropriately. There was a mention of the injury in the 1965 separation examination but the notation indication that there were no residuals or sequelae reported. In addition, the examiner noted that at the time of the examination, the Veteran reported having back pain on and off since service that sometimes would be referred to as right hip pain, and sometimes the right hip pain came by itself. More importantly, the Veteran stated that he did not have chronic knee pain but only once a while mild right knee pain, did not have any pain in the right leg, and sometimes had muscle cramps of unknown etiology unrelated to the hip, knee, or ankle pain. Moreover, he indicated that the right ankle pain began much later after discharge from service. Although he could not recall what year the pain began, he denied sustaining any injury. The examiner explained that the iliac crest was not part of the hip joint and unrelated to the complaints of pain and based on his own lay assertions at the time of the examination, there was no evidence of continuity or chronicity of right hip, leg, or ankle conditions. The examiner concluded that the Veteran had arthritis in both hips, right knee, and right ankle and foot, which was of unknown etiology, but likely age related. After a careful review of all the evidence, lay and medical, the Board finds that the Veteran’s right hip, leg, and ankle disabilities were not incurred in service and symptoms of arthritis of the were not chronic in service or continuous since service, or manifested within one year of separation. As noted, arthritis is a “chronic disease” and as such is subject to consideration of presumptive service connection. Here, due to the lack of medical evidence, there is no competent objective evidence to show that the Veteran’s arthritis manifested to a degree of 10 percent within one year after separation from service. Specifically, arthritis was not shown until 2017, decades after separation from service. Moreover, to the extent the Veteran suggests that symptoms of the currently diagnosed arthritis were continuous since service, such assertions are internally inconsistent and not credible. As discussed in detail above, the Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses of right hip, leg, or ankle disabilities. Significantly, the Veteran himself denied having any problems related to these complaints at the time of separation from service and told the VA examiner that the pain was not chronic but started many years later. Moreover, in the course of seeking treatment for other medical problems prior to 2017, at no point did the Veteran relate his pain to an injury he sustained in service and the only treatment he received was for bilateral ankle edema. The Board recognizes that the mere absence of medical records does not contradict a Veteran’s statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran’s more recent statement implying his right hip, leg, and ankle pain had its onset in service are contradicted by past medical records, to include during service, where no such complaints were documented, as well as at the time of separation from service where he specifically denied having any problems related to the incident when he got pinned between the two trucks. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). The approximately five-decade period without problems weighs against the claim. Therefore, the Veteran’s failure to report any complaints of right hip, leg, and ankle pain prior to, at most, 2006 is persuasive evidence that he was not then experiencing any relevant problems and outweighs his more recent recollection to the contrary. The Board is not only relying on the absence of evidence, but also on the contemporaneous, affirmative lay reports of symptoms and history by the Veteran in which he specifically reported in 2019, that the reported pain was not continuous since service and began many years later. To the extent that the Veteran asserts otherwise when filing this claim, the Board finds those assertions made for VA compensation purposes are not credible because they are contradicted and outweighed by the more contemporaneous lay and medical evidence, including the Veteran’s own statements at service separation and while seeking treatment post-service. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board is not implying that the Veteran purposely gave contradictory statements; it may merely be that with the passage of time his recollections were not entirely accurate. For these reasons, service connection on presumptive basis is not warranted. The Board also finds that the claims are not warranted on a direct basis. While the Veteran asserted that his right hip, leg, and ankle conditions are related to service, he is a lay person, and, while competent to relate observable symptoms such as pain, he is not competent to relate a medically complex spinal/musculoskeletal disorder to his military service, as he does not possess the requisite medical knowledge, training, or experience to do so. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, the Board assigns higher probative weight to the 2019 examiner’s opinion. The examiner explained that even accepting the Veteran’s lay reports of the injury he sustained during service, the evidence as a whole does not reflect that such injury resulted in chronicity of care but rather suggests that the arthritis is age-related. The examiner further explain that the injury was to the iliac crest and unrelated to the hip joint. Again, per the Veteran’s own assertions, the pain began many years after service and at the time of separation he made no relevant complaints. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical or competent lay opinion of record. In this case, the Board finds that the probative medical evidence outweighs the lay assertions. The Board again emphasizes that it does not challenge the Veteran’s lay assertions as to the in-service incurrence; however, as noted above, he specifically denied having any problems at the time of separation, and when he first complained of right hip, leg, and ankle problems decades after service, no medical professional related these to the iliac crest injury he sustained in service. Lastly, although the Veteran indicated that he was placed on a profile due to his reported injuries in October 1964, the service treatment records specifically show that this profile was due to an upper respiratory infection and do not mention any right hip, leg, or ankle disabilities. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s diagnosed right hip, leg, and ankle disabilities and active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claims of service connection for right hip, leg, and ankle disabilities, on direct and presumptive bases, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.