Citation Nr: 21004067 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-15 928 DATE: January 25, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran’s left hip disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The Veteran’s right hip disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 3. The criteria for entitlement to service connection for a left hip disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a right hip disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision. The above claims for service connection listed above were remanded by the Board in February 2019 for further development. 1. Entitlement to service connection for a left knee disability is denied. The Veteran maintains that his current left knee disability is related to his active service. For the reasons discussed below, service connection is not warranted. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for most chronic diseases, including arthritis, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Regarding a current disability, the Board notes that a February 2012 VA treatment record notes that he has chronic left knee pain with locking and giving way since 1976. VA treatment records note that the Veteran’s medical history includes knee osteoarthritis, arthritis, and arthralgia. An October 2011 private narrative from the Veteran’s physician, Dr. Rodriguez-Jimenez, reported that he has treated the Veteran since 2003 and that he has diagnoses of arthritis of the knees. As such, the Board finds that the Veteran meets the requirement of a current disability. At the outset, while the Veteran’s service treatment records note a left knee injury prior to enlistment, his entrance examination did not note a left knee disorder. Therefore, the presumption of soundness is triggered. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Further, there is no clear and unmistakable evidence of record to rebut the presumption of soundness. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Concerning an in-service incurrence, the Veteran’s service treatment records demonstrate that his left knee patella dislocated in October 1977, when his knee hit the dashboard in his car during a motor vehicle accident. In January 1978, his left knee patella dislocated again when he fell during a foot chase of a suspect while on routine patrol as a Law Enforcement Specialist and hit his knee on a jagged tree stump. The Veteran was diagnosed as having recurrent dislocation of the left patella and probable tear of the medial meniscus of the left knee according to the March 1978 Medical Board Evaluation that existed prior to service with service aggravation. Therefore, the Board finds that the Veteran meets the criteria for an in-service incurrence. However, the question remains as to whether the Veteran’s left knee disability is related to his active service. The Veteran was afforded with a November 2012 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire, which was found to be inadequate as explained in the February 2019 Board remand. Of note, the examination report states that the Veteran has a normal left knee, that there are no objective findings to support a current diagnosis for the claimed left knee condition, and he does not have functional limitation. The examiner did not provide a medical opinion. Consequently, the Board remanded this issue for a new VA examination and medical opinion. The Agency of Original Jurisdiction (AOJ) attempted to schedule the Veteran for this required examination; however, the Veteran did not attend attend the examination. To date, the Veteran has not requested that his VA examination be rescheduled. Under these circumstances, the Board finds that the Veteran failed to report for a VA examination without good cause. See 38 C.F.R. § 3.655 (requiring a showing of good cause for failure to appear before a VA examination is rescheduled); VAOPGCPREC 4-91 (Feb. 13, 1991) (reflecting that, absent a showing of good cause, a Veteran’s refusal to participate or cooperate during a VA examination is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655). The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (further holding that “[i]f a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence”); see also Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992); Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005) (reflecting that any failure to appear for or cooperate during a VA examination “subjects [the Veteran] to the risk of an adverse adjudication based on an incomplete and underdeveloped record”). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. §§ 3.655(a), (b). Further, there is no competent medical evidence of record establishing a nexus between the claimed in-service injury and the present disability. See Davidson, 581 F.3d 1313. Thus, the Veteran has a current left knee disability and his service treatment records show that he sustained in-service knee injuries and was diagnosed with recurrent dislocation of the left patella and probable tear of the medial meniscus of the left knee. However, there is insufficient evidence to support a relationship between his current left knee disability and his in-service injuries and diagnoses. See 38 C.F.R. §§ 3.303; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Allen v. Brown, 7 Vet. App. 439, 448 (1995). As the Veteran’s left knee osteoarthritis and arthritis were not noted in service or within a year of service separation, and as arthritis of the left knee is not shown to have manifested to a compensable degree within a year of service separation, service connection for left knee osteoarthritis and/or arthritis as a chronic disease is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis under §3.307. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). To the extent that the Veteran has asserted that his left knee disability is related to his active service, the Board finds that he is not competent to offer an opinion as to the link between his current diagnosis and his active service, as such a finding requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”). While the Veteran’s statements would be competent as to his observations of knee symptomatology, such as pain or swelling to the extent these symptoms could be viewed through his senses, he is not competent to relate any post-service left knee disability to his active service or any injuries incurred during his active service. Accordingly, the Veteran’s claims folder does not contain competent medical evidence linking his left knee disability to his active service, and in light of his failure to attend the examination scheduled for the purpose of making such a nexus opinion, his claim for service connection must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for a right knee disability is denied. The Veteran maintains that his current right knee disability is related to his active service. For the reasons discussed below, service connection is not warranted. Concerning a current disability, the initial documentation of a post-service right knee disability is an October 2011 private narrative from the Veteran’s physician, Dr. Rodriguez-Jimenez, which provides that he has treated the Veteran since 2003, and that he has diagnoses of arthritis of the knees. Regarding an in-service incurrence of a disease or injury, the Veteran’s service treatment records do not show treatment or complaints of right knee problems. A February 1978 Report of Medical History indicates that he had swollen or painful joints and a “trick” or locked knee but did not specify whether it was the right or left knee. The Veteran’s claims folder does not contain competent medical evidence relating his current right knee disability to his active service. As noted above, the Veteran does not have the medical competence to provide an opinion relating his current right knee disability, first diagnosed many years after his active service to his active service, as this is a complex determination that cannot be made based on lay observation alone. See Layno, 6 Vet. App. at 469-71; Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. As the Veteran’s right knee arthritis was not noted in service or within a year of service separation, and as arthritis of the right knee is not shown to have manifested to a compensable degree within a year of service separation, service connection for right knee arthritis as a chronic disease is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis under §3.307. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Because the preponderance of the evidence is against the award of service connection for a right knee disability, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 3. Entitlement to service connection for a left hip disability is denied. 4. Entitlement to service connection for a right hip disability is denied. The Veteran maintains that his left and right hip disability are related to his active service. For the reasons discussed below, service connection is not warranted. Concerning a current disability, the initial documentation of a post-service bilateral hip disability is an October 2011 private narrative from the Veteran’s physician, Dr. Rodriguez-Jimenez, which states that he has treated the Veteran since 2003, and that he has diagnoses of arthritis of the hips. Regarding an in-service incurrence of a disease or injury, the Veteran’s service treatment records do not show treatment or complaints a hip disability. A February 1978 Report of Medical History indicates that he had swollen or painful joints. The Veteran’s claims folder does not contain competent medical evidence relating his current bilateral hip disability to his active service. As noted above, the Veteran does not have the medical competence to provide an opinion relating his current bilateral hip disability, first diagnosed many years after his active service to his active service, as this is a complex determination that cannot be made based on lay observation alone. See Layno, 6 Vet. App. at 469-71; Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. As the Veteran’s bilateral hip arthritis was not noted in service or within a year of service separation, and as arthritis of the hips is not shown to have manifested to a compensable degree within a year of service separation, service connection for bilateral hip arthritis as a chronic disease is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis under §3.307. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Because the preponderance of the evidence is against of the award of service connection for a left or right hip disability, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran was afforded a November 2012 VA Back (Thoracolumbar Spine) Conditions Examination, which provides that he has a diagnosis of lumbar spondylosis. The medical history states that the Veteran reports recurrent back pain since his separation from active service, but there are no findings of interval medical evaluations or treatment to support his statement. The corresponding medical opinion concludes that the Veteran’s current lumbar spine condition is less likely than not related to his active service or his in-service complaint of back pain. In particular, the medical opinion provides that the Veteran’s spondylosis is a general term for age-related wear and tear affecting the spinal disks. According to the medical opinion, there are no objective findings in the Veteran’s service treatment records that show complaints, evaluation, diagnosis, or treatment for any back or related condition. While the Veteran reported a history of recurrent back pain during the February 1978 Report of Medical History, the physical examination was normal, and the spine showed good alignment, no spasm, and no tenderness. The Board finds that the November 2012 examination and corresponding medical opinion are inadequate in part, because both are based upon an absence of contemporaneous documentation of treatment for back pain since the Veteran’s separation from active service. See Barr, 21 Vet. App. at 312; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). The Board also notes that since the November 2012 examination, the Veteran has continued to complain of low back pain. His VA treatment records also demonstrate a diagnostic study from June 2017 that shows diffuse osteopenia of the lumbar spine with grossly intact alignment, stable to slightly increased multilevel degenerative spurring, and no acute compression deformities. Additionally, a May 2019 diagnostic duty indicates that the Veteran has worsening moderate to severe central spinal canal stenosis at L4-5 and bilateral neural foraminal stenosis at that level, moderate right and mild/moderate left neural foraminal stenosis at L5-S1, and new posterior annular fiber tears at L4-5 and L5-S1. Therefore, the Veteran must be provided with a new VA examination and medical opinion. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 2. After the above development is completed, schedule the Veteran for a VA examination for his lumbar spine disability. The examination should include any necessary diagnostic testing or evaluation. The examiner must review the claims file. The examiner must: (a.) Identify all current lumbar spine disabilities found to be present. (b.) Opine whether any identified lumbar spine disability is at least as likely as not (50 percent probability or greater) related to the Veteran’s active service. In providing the requested opinion, the examiner should consider the evidence that the Veteran reported recurrent back pain during his active service and that he has had recurrent back pain since his active service. If there is any medical reason to accept or reject the proposition that the Veteran’s report of in-service back pain and recurrent back pain since his active service, this should be noted. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine arthritis (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In providing the above opinions, the examiner must consider: • The February 1978 Report of Medical History that states the Veteran reported a history of recurrent back pain during. • The November 2012 VA Back (Thoracolumbar Spine) Conditions Examination, which states that the Veteran reports experiencing recurrent back pain since his separation from active service. • A June 2017 diagnostic study that shows diffuse osteopenia of the lumbar spine with grossly intact alignment, stable to slightly increased multilevel degenerative spurring, and no acute compression deformities. (Continued on the next page)   • A May 2019 diagnostic duty that shows that the Veteran has worsening moderate to severe central spinal canal stenosis at L4-5 and bilateral neural foraminal stenosis at that level, moderate right and mild/moderate left neural foraminal stenosis at L5-S1, and new posterior annular fiber tears at L4-5 and L5-S1. A complete rationale for all opinions expressed, must be provided. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.