Citation Nr: 21061281 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-45 053 DATE: October 1, 2021 ORDER Service connection for degenerative joint disease of the left knee, including as secondary to service-connected disabilities, is denied. Service connection for degenerative joint disease of the right knee, including as secondary to service-connected disabilities, is denied. Service connection for avascular necrosis of the femoral head status post left hip total arthroplasty ("left hip disability"), as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran is service connected for right shoulder strain, radiculopathies of the left and right femoral and sciatic nerves, intervertebral disc syndrome of the thoracolumbar spine, right ankle sprain, and residuals of a left ankle sprain. 2. The Veteran has a current disability of degenerative joint disease of the left knee. 3. The Veteran sustained a left knee sprain injury during service in December 1994 identified as inflammation of the patellar tendon, diagnosed as retropatellar pain syndrome. 4. Symptoms of degenerative joint disease of the left knee were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. 5. The degenerative joint disease of the left knee did not have its onset during service and is not otherwise related to active duty service. 6. The degenerative joint disease of the left knee is not caused by, or increased in severity beyond the natural progress of the disease by, any service-connected disability. 7. The Veteran has a current disability of degenerative joint disease of the right knee. 8. The Veteran sustained a right knee mild lateral collateral sprain injury during service from a fall in February 1985. 9. Symptoms of degenerative joint disease of the right knee were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. 10. The degenerative joint disease of the right knee did not have its onset during service and is not otherwise related to active duty service. 11. The degenerative joint disease of the right knee is not caused by, or increased in severity beyond the natural progress of the disease by, any service-connected disability. 12. The Veteran has a current left hip disability of avascular necrosis of the femoral head (a form of arthritis), status post left hip total arthroplasty. 13. The left hip disability is not caused by, or increased in severity beyond the natural progress of the disease by, any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the left knee, including as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for degenerative joint disease of the right knee, including as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for left hip disability as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army during Peacetime and the Gulf War Era from November 1982 to November 1985, and from October 1992 to January 1995. The basis of the current appeal is an August 2014 Rating Decision denying reopening of service connection for the left hip, right knee, and left knee disorders. Service connection for the left and right knee disorders had previously been denied in an April 1995 Rating Decision, and service connection for the left hip disability had previously been denied in a November 1997 Rating Decision. In a November 2019 decision, the Board determined that new and material evidence had been received, and reopened service connection for the left hip, right knee, and left knee disorders. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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 all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Arthritis (degenerative joint disease) is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as degenerative joint disease become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Service connection for degenerative joint disease of the left knee 2. Service connection for degenerative joint disease of the left knee The Veteran contends that the degenerative joint disease in both knees are causally connected to service. The Veteran contends specifically that the right knee was initially injured in February 1985 during service in a fall down stairs. See February 1986 Claim for Compensation. The evidence also shows a left knee retropatellar pain syndrome injury during service in December 1994. The November 2019 Board decision also determined that the issue of service connection for the left and right knee as secondary to service-connected disabilities had been raised. See November 2019 Board Decision. The evidence shows a current disability of degenerative joint disease of both knees. See May 2016 VA Treatment Records. After weighing the evidence, lay and medical, the Board finds that, while the Veteran sustained right and left knee injuries during service, the weight of the evidence shows no chronic knee symptoms during either period of service. The weight of the evidence shows that symptoms of the degenerative joint disease of the left and right knees were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. Regarding the right knee, the service treatment records reflect the incident during service claimed by the Veteran. Treatment records from February 1985 note treatment for right knee pain after the Veteran fell down stairs. The diagnosis was a mild lateral collateral sprain. The service treatment records also show that symptoms of either knee were not chronic in service, continuous after service, and did not manifest to a compensable degree within one year after service. A VA examination performed after the Veteran's initial period of service in March 1986, including X-ray studies done of the right knee, found no problems with the right knee of any kind, including no instability or arthritis. Service treatment records from the second period of service show the Veteran reporting no musculoskeletal or lower extremity complaints on self-assessment forms in October 1992 and October 1994. In January 1995, the Veteran reported right knee pain, which the attending examiner attributed to the Veteran's obesity and resulting fitness regimen. The Veteran received a VA examination March 1995, two months after service. The Veteran reported experiencing bilateral knee pain. The examiner noted that range of motion was normal, there was no instability found, and X-rays showed normal joint spaces, no effusions, and no evidence of fracture or dislocation. Regarding the left knee, the service treatment records for the second period of service show treatment for a left knee sprain in December 1994 identified as inflammation of the patellar tendon (retropatellar pain syndrome). The examiner noted full range of motion, and no effusions or instability. The service treatment records are silent until the January 1995 report of bilateral knee pain, which was attributed to the Veteran's obesity rather than in-service injury. The March 1995 VA examination a couple of months after service similarly showed the knees had full range of motion, and no instability in the left knee, while X-rays found normal joint spaces, with no effusions, fractures, or dislocations. The evidence for each knee shows isolated injuries (February 1985 for the right knee, December 1994 for the left knee) and unrelated pain due to the Veteran's obesity (January 1995). The different etiologies of these injuries indicates that symptoms of degenerative joint disease were not chronic in service or continuous during service. The evidence also shows that the disease had not manifested to a compensable degree within one year of service separation, as the March 1995 X-rays (and March 1986 X-ray for the right knee) showed no degenerative changes of any kind, with joint space found to be normal in both knees. Similarly, after weighing the evidence, lay and medical, the Board finds that the degenerative joint disease of the left and right knee did not have their onset during service and are not otherwise related to active duty service. In addition to the above evidence, the Veteran received two further VA examinations for the knees in January 2017 and December 2019. The January 2017 examiner opined that the degenerative joint disease in both knees was due to the Veteran's age, his post-service employment in physical labor, and the effects of the Veteran's (non-service-related) morbid obesity. The December 2019 examiner came to the same conclusion. Accordingly, the weight of the evidence shows that the current degenerative joint disease in both knees was not caused by service or incurred in service. With regard to secondary service connection, the Veteran is service connected for right shoulder strain, radiculopathies of the left and right femoral and sciatic nerves, intervertebral disc syndrome of the thoracolumbar spine, right ankle sprain, and residuals of a left ankle sprain. After weighing the evidence, lay and medical, the Board finds that the degenerative joint disease of the left and right knee are not caused by, or increased in severity beyond the natural progress of the disease by, any service-connected disability. As noted above, VA examinations performed in January 2017 and December 2019 opined that the etiology of the current left and right knee degenerative joint disease was aging, post-service employment, and obesity. In the January 2017 examination, based on the opined etiology, the examiner opined that the degenerative joint disease in both knees was less likely than not proximately due to or the result of the service-connected disabilities. In the December 2019 examination, the examiner opined that the degenerative joint disease in both knees was less likely than not aggravated beyond its natural progression due to service-connected disabilities. Besides establishing the above etiologies for the degenerative joint disease, the examiner also noted that there is no evidence that the degenerative joint disease had worsened either in one knee or the other based on an abnormal gait from any service-connected disabilities. Instead, the degenerative joint disease in both knees was consistent with a morbidly obese, aging individual. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the claim for service connection for degenerative joint disease of the left and right knees under all theories of service connection. For these reasons, the appeal must be denied. 3. Service connection for left hip disability is denied. The Veteran contends that the current left hip disability was aggravated beyond its natural progression by service-connected disabilities. See October 2014 Veteran's Statement. He does not contend that he injured the left hip during service or that the current left hip disability is directly related to service, and has not described chronic or continuous left hip symptoms since service to invoke the application of presumptive service connection for arthritis of the left hip. See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The evidence shows a current disability of avascular necrosis of the femoral head status post left hip total arthroplasty ("left hip disability"). While avascular necrosis is a form of arthritis, neither the Veteran nor the evidence has suggested that there were chronic or continuous left hip symptoms since service to invoke the application of presumptive service connection for arthritis of the left hip (38 U.S.C. § 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309). As noted above, the Veteran is service connected for right shoulder strain, radiculopathies of the left and right femoral and sciatic nerves, intervertebral disc syndrome of the thoracolumbar spine, right ankle sprain, and residuals of a left ankle sprain. After weighing the evidence, lay and medical, the Board finds that the current left hip disability is not caused by, or increased in severity beyond the natural progress of the disease by, any service-connected disability. A VA examiner in January 2017 opined that the left hip disability did not increase beyond the natural progress of the disease by any service-connected disability. The examiner noted that the Veteran underwent hip replacement in 1997. The surgeon who performed the replacement indicated that the hip replacement would last 5-7 years based on the Veteran's age and weight (the Veteran was considered morbidly obese at the time). As the January 2017 examiner noted, the private and VA treatment records show no evidence that the left hip failed until 2014, indicating that the replacement hip could not have been worsened in severity by any disability, since it had actually lasted twice as long as it had been expected to last. A VA examiner in September 2020 also concluded that the left hip disability did not increase beyond the natural progress of the disease by any service-connected disability, nor was it proximately due to or the result of any service-connected disability. The VA examiner noted that the etiology of the left hip disability was a motor vehicle accident that had occurred in 1996, one year after separation from service. The examiner also noted that an X-ray in October 2000 showed good positioning of the hip components, while a X-ray in December 2014 showed some loosening of the hip replacement hardware (expected for a hip replacement 10 years after its expected failure date). The VA examiner noted that the Veteran had reported improvement of function and pain after the initial surgery and after the second replacement in 2014, with no unexpected pain reported in the left hip noted on the September 2020 examination. For these reasons, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for secondary service connection for the left hip disability; therefore, the appeal must be denied. Stegall remand In November 2020, the Veteran's representatives asserted that the Veteran is entitled to a remand per the ruling in Stegall v. West, 11 Vet. App. 268 (1998) (holding that VA has a duty to ensure compliance with remand instructions, and the Board errs when it fails to ensure compliance with remand orders), as the Agency of Original Jurisdiction (AOJ) failed to fully comply with the remand instructions issued by the Board in the November 2019 Board decision. See November 2020 Representative's Statement. Specifically, they argue that the AOJ (and the VA compensation examiners) failed to review and consider the Board remand in their opinion and rationale (evidenced by the examiners' failure to indicate that they considered or reviewed the Board remand). (Continued on the next page) The Board finds that the AOJ has complied with the remand instructions, such that further remand is not necessary. The November 2019 Board remand instructed the VA examiners to indicate that the claims file was reviewed, but did not require the VA examiner to indicate that they considered or reviewed the Board remand. The Court in Stegall likewise did not require that an examiner expressly indicate that they considered or reviewed the relevant Board remand. The Board's November 2019 remand asked the examiner to provide opinions (1) "as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left hip disability was caused (in whole or in part) or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected i) back and/or ii) left ankle disabilities" and (2) "as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and left knee arthritis was caused (in whole or in part) or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by any of his service-connected disabilities." The knee opinion tendered in December 2019 and the September 2020 hip opinion both fully satisfy the instructions described above. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.