Citation Nr: 21061350 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-05 526 DATE: October 1, 2021 ORDER Entitlement to service connection for a right hip disability (claimed as avascular necrosis (AVN) and hip replacement), to include as due to undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317 or as secondary to service-connected fibromyalgia, is denied. Entitlement to service connection for a left hip disability (claimed as AVN and hip replacement), to include as due to undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317 or as secondary to service-connected fibromyalgia, is denied. Entitlement to service connection for a right knee and calf disability, to include as secondary to a right hip disability is denied. Entitlement to service connection for a left knee and calf disability, to include as secondary to a left hip disability is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran's currently diagnosed left and right hip disabilities have not been attributed to an undiagnosed illness and was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between these disabilities and his active service, to include service in the Persian Gulf, or a service-connected disability. 3. The Veteran's currently diagnosed left and right knee and calf disabilities have not been attributed to an undiagnosed illness and were not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between these disabilities and his active service, to include service in the Persian Gulf, or a service-connected disability. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in or aggravated by service and may not be presumed related to service, to include as a result of an undiagnosed illness. 38 U.S.C. §§ 1110 , 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.317. 2. A left hip disability was not incurred in or aggravated by service and may not be presumed related to service, to include as a result of an undiagnosed illness. 38 U.S.C. §§ 1110 , 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317. 3. A right knee and calf disability was not incurred in or aggravated by service and may not be presumed related to service, and is not secondary to any service-connected disability. 38 U.S.C. §§ 1110 , 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.310. 4. A left knee and calf disability was not incurred in or aggravated by service and may not be presumed related to service, and is not secondary to any service-connected disability. 38 U.S.C. §§ 1110 , 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1988 to May 1992, to include service in Southwest Asia from August 1990 to February 1991. These matters are on appeal from an November 2011 rating decision. In August 2018, the Veteran and his spouse testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the record. In March 2020, these matters were remanded by the Board for further development, to include obtaining a VA examination and opinion. The Board finds that the evidentiary development complies with the prior remand directives and the claims are ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). In addition to the regulations cited above, because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317 (a)(1). The Veteran claims that he has a bilateral hip disability that is directly related to his active military service, including exposure to toxic chemicals during service in Southwest Asia or secondary to his service-connected fibromyalgia. See August 2018 Video Conference hearing transcript. In an April 2012 notice of disagreement ( NOD), the Veteran stated that his private physician related his bilateral hip disability to possible exposure to toxic chemicals during service in the Gulf War. In this regard, the Veteran was afforded a March 2011 VA joints examination at which time the Veteran presented with a 10-year history of bilateral knee and hip pain. Bilateral patellofemoral syndrome and avascular necrosis (AVN) of the hips was diagnosed. On July 2014 VA hip and thigh conditions Disability Benefits Questionnaire (DBQ) examination an examiner diagnosed AVN of the hips and total hip arthroplasties, bilaterally. The examiner opined that AVN has a specific etiology; it is a result of disruption of blood flow to the femoral head. As will be discussed in greater detail below, since the record also shows that the Veteran's bilateral hip and knee/calf symptoms of joint and muscle pain and aches have been ascribed to known clinical diagnoses, namely AVN and patellofemoral syndrome, service connection under the statutes and regulations that govern claims based upon service in the Persian Gulf is precluded. Those provisions require a qualifying chronic disability as defined above, such as an undiagnosed illness. Moreover, the evidence does not raise the issue of any other undiagnosed illness that manifested to a degree of 10 percent or more following discharge from service. 38 C.F.R. § 3.317. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 is warranted. Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis. 1. Right and left hip disabilities As previously stated, the Veteran contends that he has right and left hip disabilities that are directly related to his active military service, including exposure to toxic chemicals in the Gulf War, or secondary to his service-connected fibromyalgia. See August 2018 Video Conference hearing transcript. The service treatment records (STRs) are void of findings, complaints, symptoms, or any diagnosis related to a left or right hip disability. Post-service, private treatment records include a July 2003 report which indicates that the Veteran was involved in a work-related injury which caused right hip pain. An MRI revealed AVN in the right and left hip. In a June 2004 medical opinion, the Veteran's private orthopedist Dr. R.C., opined that although it is possible that the incident significantly made the AVN worse it was most likely not probable. Private treatment records also include an October 2009 examination of the hips which also references the work-related injury which caused bilateral hip pain. An X-ray examination indicated bilateral AVN, right worse than the left. The Veteran's orthopedist Dr. R.C., opined that he could not conclude that the alleged injury of May 2003 was the original causative factor of the Veteran's AVN. Dr. R.C. further opined that although it is possible that the incident significantly made the AVN worse, it is most likely not probable. In March 2010, the Veteran underwent a VA Gulf War examination. Idiopathic bilateral hip AVN and status post right hip THA were diagnosed. A left hip replacement was scheduled. In a March 2010 statement the Veteran's wife stated that the Veteran had severe hip pain and ended up seeing a physician who diagnosed AVN when he was 32 years old. The physician told the Veteran that it was not genetic and there was no family history of AVN or need for hip replacement. She also stated that they heard reports of other Gulf War veterans being diagnosed with joint problems. In a March 2010 statement, the Veteran stated that in 2001 he went to a workers' compensation doctor for aching hips related to fall at work. His physician sent him for MRIs and informed him that he had AVN which was not due to the fall. X-rays showed that he had AVN for some time due to the progression of the disability. He underwent core compression surgeries in 2001 and total hip replacement of each hip in January and March 2010. The Veteran stated that he had not been provided a reason why he had and had no family history of muscle or joint issues. In another March 2010 statement, the Veteran's friend stated that his most notable issue was hip pain. He stated that the Veteran was injured at work, but implied that his bilateral hip disability pre-existed the work-related injury. In a March 2010 private medical opinion, orthopedist Dr. R.C. stated that the Veteran returned for an examination of his hips. Total right hip replacement was scheduled in January 2010 and the Veteran was proceeding with surgery for his contralateral side. Throughout the course of his care the physician evaluated his medical history thoroughly, including prior risk factors for AVN. They understood that the Veteran's service in the Gulf War and possible exposure to toxic chemicals was inherent in his service. Therefore, the physician opined that "there does exist the possibility his ultimate development of avascular necrosis in his bilateral femoral heads could in fact have been the result of exposure to some unknown agent." On March 2011 VA joints examination the Veteran presented with a 10-year history of bilateral knee and hip pain. Bilateral patellofemoral syndrome and AVN of the hips was diagnosed. The examiner opined that AVN of the hips is less likely as not caused by or a result of Gulf War service. The rationale was that AVN of the hip is a well-recognized disability. The Veteran did not have the usual causes and the onset was 8 years after service. He served in Saudi Arabia with no history of trauma or exposures. He had a very serious electrical injury in 1997, 2-3 years prior to onset of hip symptoms. There was some suggestion that electrical injuries may have distant effects on circulation due to neurological injury. In an April 2012 NOD, the Veteran disagreed with the March 2011 VA examiner's findings. The Veteran noted that the examiner stated that he had a history of a very serious electrical injury in 1997 that may have had a distant effect on circulation due to neurological injury. The Veteran explained that the examiner may have been referring to an incident where he questioned burn scars on his arms and chest which caused his skin to burn. However, at no time was he exposed to an electrical current or suffered from electrocution. Therefore, his statement was incorrect. The examiner also stated that his AVN occurred many years after service. However, the Veteran stated that he was diagnosed in 2003 and argued that AVN is a degenerative disease that sustained many years of deterioration before leading up to painful symptoms that would cause one to seek a diagnosis. He stated that his own doctor found no evidence of previous risk factors in his medical history other than possible exposure to toxic chemicals during service in the Gulf War. In July 2014, the Agency of Original Jurisdiction acknowledged that the Veteran's workplace injury referenced by the March 2011 VA examiner was a fire and not an electrical shock and requested an opinion as to whether his claimed bilateral hip disability was related to his service in Southwest Asia. On July 2014 VA hip and thigh conditions DBQ examination, the Veteran presented with a history of bilateral hip pain in about 2000 with occasional pains prior to that time. The Veteran said that he was found to have decreased blood supply to both femoral heads which began years prior. He had no history of trauma or family history of bone problems. After a thorough examination of the Veteran and the claims file, the examiner diagnosed AVN of the hips and total hip arthroplasties, bilaterally. The examiner noted the Veteran's risk factors for AVN including a history of hyperlipidemia, age, and smoking and alcohol use. Regarding age, the examiner opined that the Veteran was in the age group where this diagnosis is typically made. The examiner cited to a study which found that "AVN of the femoral head is a debilitating disease that usually leads to osteoarthritis of the hip joint in relatively young adults (mean age at presentation: 38 y)." Regarding alcohol use and smoking, according to the records, he was a former smoker and quit in 1991. He had 2 to 4 drinks per week as documented from 2010 to 2014. The examiner cited a study regarding the "Influence of alcohol intake, cigarette smoking, and occupational status on idiopathic osteonecrosis of the femoral head." The examiner also stated that hyperlipidemia is also noted to be a risk factor per numerous sources. The examiner further opined that the Veteran's age was not atypical for diagnosis of this disability which is often idiopathic and does not require any specific risk factor to be identified. The examiner opined that the Veteran had several risk factors which cumulatively likely put him at some increased risk for the disability. Regarding Gulf War service, the examiner opined that there is no known relationship between any Gulf war exposure and AVN. The examiner considered and disagreed with the private orthopedist's opinion "there does exist the possibility his ultimate development of avascular necrosis in his bilateral femoral heads could in fact have been the result of exposure to some unknown agent." The examiner further opined that AVN is not a multisystem disability and that the bilateral hip disability is a single issue and one system. The examiner explained that AVN has a specific etiology; it is a result of disruption of blood flow to the femoral head. Because of all of the reasons noted above, it is less likely as not that the Veteran's AVN of the hips is related to any exposure in service. At the August 2018 Video Conference hearing the Veteran testified that his private physician opined that his bilateral hip disability was related to chemicals or something from Desert Storm. In March 2020, the Board remanded the claim for an opinion as to whether any currently diagnosed right or left hip disability was caused or aggravated by the service-connected fibromyalgia. Pursuant to the Board's remand, the Veteran was afforded an August 2020 VA hip and thigh conditions DBQ examination at which time he presented with a history of sudden onset of sharp pain in the hips while playing basketball during active service. Since that episode, he continued to experience nagging hip pain, left worse than the right. He also endorsed a history of a fall in the late 2000's that required medical attention and led to a diagnosis od AVN of the left and right hip. After a thorough examination of the Veteran and a review of the claims file, the VA examiner diagnosed bilateral hip AVN with right and left hip replacement in January and March 2010, respectively. In a separate August 2020 VA medical opinion the examiner opined that the bilateral hip disability is less likely than not proximately due to or the result of the Veteran's service-connected fibromyalgia. The rationale was that osteonecrosis, also known as AVN, is a pathologic compromise of the bone vasculature that leads to the death of bone and marrow cells. The examiner cited findings which signify the genetic, ischemic, and metabolic onset involved in developing AVN. The conclusion from numerous studies on the etiology and pathogenesis of AVN have failed to find fibromyalgia or other chronic pain disorder as a risk factor. The examiner further opined that the Veteran's bilateral hip disability was not aggravated by his service-connected fibromyalgia. The rationale was that the Veteran had bilateral total hip arthroplasties, indicating that his level of care had been escalated as a result of disease progression. The examiner opined that it is not physiologically possible for the hip disability to be aggravated beyond natural progression by fibromyalgia. The Board finds that the July 2014 and August 2020 VA medical examinations and opinions provide highly probative and overwhelming evidence against this claim and correct deficiencies found in the March 2011 VA medical opinion. The July 2014 and August 2020 VA examiners reviewed the claims file, considered the Veteran's documented and reported history, and performed a thorough evaluation. The July 2014 VA examiner opined that the Veteran's claimed left and right hip disability, diagnosed as AVN, was less likely as not that the related to the Veteran's service, including any toxic exposure during the Gulf War. The August 2020 VA examiner opined the left and right hip disability was not proximately due to or aggravated by his service-connected fibromyalgia and cures the deficiency found in the prior VA medical opinions of record. Both VA medical opinions were supported by a well-reasoned rationale. Therefore, the VA medical examinations and opinions provide probative evidence against the Veteran's claims of high probative weight. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered Dr. R.C.'s March 2020 private opinion that "there does exist the possibility his ultimate development of avascular necrosis in his bilateral femoral heads could in fact have been the result of exposure to some unknown agent." However, the speculative terminology "could in fact have been the result of" provides an insufficient basis for an award of service connection, limiting the probative value of the opinion. See Winsett v. West, 11 Vet. App. 420, 424 (1998). See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). The Board finds that the claims must be denied. There is no competent medical evidence to show that the Veteran has had any left or right hip disability that was incurred in or aggravated by his service, including Gulf War service, or any service-connected disability. Moreover, post-service, the record does not reflect or reference any history of a left or right hip disability until 8 years after discharge from active service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See 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. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds in this case that the lack of evidence of a left or right hip disability during service coupled with the fact that the onset of the left and right hip disabilities was not until 8 years post-service, is sufficient to rebut a finding of service incurrence. In this case, the earliest post-service medical evidence of the Veteran's bilateral hip disability was 8 years after service according to the March 2011 VA examiner. This long period without problems weighs against the claims . Moreover, the Board finds that the Veteran's statements relating his left and right hip disability to his service are not credible and are afforded no probative value. Notably, the Veteran initially related his bilateral hip disability to toxic chemicals in the Gulf War, or secondary to his service-connected fibromyalgia. However, on August 2020 VA examination the Veteran presented with a history of sudden onset of sharp hip pain while playing basketball during active service. Moreover, a July 2003 private medical report indicates that the Veteran was involved in an alleged work-related injury causing pain to his right hip. His contentions relating his bilateral hip disability to service conflict with the absence of treatment evidence for over 8 years after service, a post-service work-related injury of the right hip, and history provided to the August 2020 VA examiner relating hip pain to playing basketball during service. Finally, there is no competent medical evidence that the Veteran has any left or right hip disability that is related to his service. 2. Right and left knee and calf disabilities The Veteran contends that he has a right and left knee and calf disabilities that are related to his bilateral hip disability. However, at the August 2018 Board hearing the Veteran testified that he injured his knees digging fox holes and getting in and out of the holes when he first experienced pain. He testified that he did not go to sick call because it was frowned upon. His spouse testified that he would have knee pain during service and received knee braces maybe a year after service. In this regard, the STRs are void of findings, complaints, symptoms, or any diagnosis related to a right or left knee of calf disability. Post-service, VA and private treatment records include complaints of bilateral knee pain. On March 2011 VA joints examination the Veteran presented with a 10-year history of bilateral knee pain. Bilateral patellofemoral syndrome was diagnosed. The examiner opined that the bilateral knee disability was not caused by or a result of Gulf War service. The rationale was that this was a mechanical overuse problem. Onset was well after service and clearly unrelated. In an April 2012 NOD, the Veteran stated that Dr. R.C. opined that his bilateral patellofemoral syndrome developed due to overuse of his knees to compensate for his bilateral hip disability and therefore should be granted service-connected secondary to his bilateral hip disability. The Board finds that the claims must be denied. There is no competent medical evidence to show that the Veteran has had any left or right knee or calf disabilities that were incurred in or aggravated by his service or any service-connected disability. Moreover, post-service, the record does not reflect or reference any history of a left or left or right knee disability until 9 years after discharge from active service. In this regard, on March 2011 VA examination the Veteran presented with a 10-year history of bilateral knee pain which indicates a history of bilateral knee pain since 2001. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan supra. 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. See Maxson, supra; see also Horn, supra. The Board finds in this case that the lack of evidence of a left or right knee or calf disability during service coupled with the fact that the medical records indicate a history of complaints of knee pain since 2001, which is not until 9 years post-service, is sufficient to rebut a finding of service incurrence. In this case, the earliest post-service medical evidence of the Veteran's bilateral knee disability was in March 2001 which is over 9 years after service. This long period without problems weighs against the claims. Moreover, the Board finds that the Veteran's statements relating his bilateral knee and calf disabilities to his service are not credible and are afforded no probative value. His contentions conflict with the absence of treatment evidence for over 9 years after service. Finally, there is no competent medical evidence that the Veteran has any left or right knee or calf disability that is related to his service. To the extent that the Veteran's private physician related his left and right knee disabilities to his bilateral hip disability, since service connection has not been granted for any left or right hip disability, a left or right hip disability may not serve as a predicate service-connected disability upon which to base his claims, and the claims based on "secondary" service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated any left or right knee or calf disability. The findings set forth earlier in this decision reflect that service connection for a left or right hip disability has not been established. As such, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. Additional considerations The Board has taken the contentions that the Veteran has bilateral hip and bilateral knee and calf disabilities that are related to his service, seriously. Although the Veteran, his spouse, and his friend might believe that he has bilateral hip and bilateral knee and calf disabilities that are etiologically related to his service, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that he has bilateral hip and bilateral knee and calf disabilities that are related to his service or any service-connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's bilateral hip and bilateral knee and calf disabilities, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). (Continued on the next page) In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has bilateral hip and bilateral knee and calf disabilities that are etiologically related to his service or to any service-connected disabilities. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.