Citation Nr: 21062737 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-34 250 DATE: October 12, 2021 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The record evidence does not show that the either Veteran's right hip disability or left knee disability clearly and unmistakably existed prior to active service and clearly and unmistakably was aggravated by service. 2. The record evidence shows that the Veteran's right hip disability and left knee disability are not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from November 1979 to November 1986. She also had additional unverified service in the U.S. Army Reserves. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision which denied, in pertinent part, a claim of service connection for a left knee disability and from a June 2015 rating decision which denied a claim of service connection for a right hip disability. The Veteran appointed her attorney to represent her before VA by filing a signed VA Form 21-22a at the RO in February 2018. A virtual Board hearing was held in June 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that the Veteran's representative essentially questioned the probative value of the VA medical opinions in statements made on the record at the July 2021 virtual hearing. In advancing an argument concerning the adequacy of the medical evidence obtained by the RO, the Veteran, through her attorney, appears to be raising a general challenge to the professional competence of the VA examiners who provided the opinions or conducted the examinations during the pendency of this appeal. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor her representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiners who provided the medical evidence obtained by the RO during the pendency of this appeal. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. Other Federal Circuit precedent also suggests that VA may rely upon the medical evidence obtained by the RO during the pendency of this appeal in adjudicating the Veteran's currently appealed claims. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor her representative has identified or submitted any evidence or argument that the VA examiners were not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide competent opinions concerning the contended etiological relationships between the Veteran's claimed disabilities and active service. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291 92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019). There has been no showing or even an allegation that the VA examiners who provided the medical evidence obtained by the RO were not competent or did not report accurately what they found in their review of the claims file. The Board also finds that the medical opinions obtained during the pendency of this appeal are adequate for evaluation purposes because they addressed fully all of the Veteran's contentions regarding her claimed disabilities. They specifically considered her reported pre-service right hip and left knee injuries. They noted that her enlistment physical examination was normal. And they provided fully supported medical nexus opinions concerning the contended etiological relationships between the claimed disabilities and active service. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, the Board declines the attorney's invitation to remand this appeal for new examinations as doing so only imposes a burden on VA without any benefit flowing to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Service Connection The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a right hip disability and for a left knee disability. The Veteran essentially contends that she incurred each of these disabilities during active service and experienced continuous post-service disability. She alternatively contends that she injured her right hip and left knee prior to her entry on to active service and these disabilities were aggravated by service. The medical evidence shows instead that the Veteran entered into active service in sound condition, experienced in-service right hip and left knee problems which resolved with treatment, and her current right hip and left knee disabilities are not related to active service. For example, the available service treatment records show that, at her pre-enlistment physical examination in May 1979 prior to her entry on to active service in November 1979, the Veteran denied all relevant pre-service medical history and clinical evaluation was normal. On periodic physical examination in September 1983, clinical evaluation was normal, and the Veteran denied all relevant medical history. In July 1985, the Veteran complained of an aching left knee for 2 weeks "off and on" with pain in the joint. She reported an injury to the left knee after falling off of a moving car 6 years earlier. Objective examination showed no edema, erythema, or discoloration, no joint line tenderness, intact ligaments, decreased left quad strength to confrontation, and tenderness along the inferior edge of the patella. The diagnosis was patellofemoral syndrome. In January 1986, she complained of right hip pain "intermittently since 1978." She reported being involved in a car accident with "pain and soreness in [the] hip after the accident." She currently experienced numbness and sharp pain. She could not sit or sleep on her right side. Her right hip pain was "generally a nagging pain." Objective examination showed no pain on palpation and a good range of motion with pain at the extremes of internal and external rotation. The diagnosis was chronic right hip pain. X-rays were pending. In a February 1986 consult, a history of increasing right hip pain for 5 6 years after "falling off [of] a car." X-rays of the right hip were negative. Objective examination showed a normal gait, active range of motion within normal limits, normal strength w pain on external rotation, and no increased pain on hip abduction. The diagnosis was rule-out right hip myositis (external rotators). At her separation physical examination in June 1986 at the end of her U.S. Army service, clinical evaluation was normal, and she denied all relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a right hip disability or for a left knee disability. It shows instead that neither of these current disabilities is related to active service. For example, on VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in April 2018, the Veteran's complaints included bilateral knee pain, right knee greater than left knee, a constant dull left knee ache, intermittent sharp pain, giving way, and swelling. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. She reported injuring her knees and right hip prior to service when "she was 'car surfing.'" She also reported injuring her right knee "in basic training upon doing an exercise where they rushed forward with weapon and landing on the knees." She denied experiencing flare-ups of left knee pain. She had pain on prolonged walking, standing, and bending. Range of motion testing of the left knee was normal with no additional limitation of motion on repetitive motion. Physical examination of the left knee showed pain with weight bearing, objective evidence of crepitus, disturbance of locomotion, interference with standing, and 5/5 muscle strength. She occasionally used a brace and regularly used a cane. X-rays showed traumatic arthritis. There was evidence of pain on passive range of motion. There was no pain when the joint is used in non-weight bearing. The VA examiner opined that it was less likely than not that the Veteran's left knee disability is related to active service and was not caused or aggravated by any incident of service. The rationale for this opinion was based on a review of the claims file and relevant medical literature. The rationale also was that there was no knee disability shown at the Veteran's enlistment physical examination although she noted the report of a pre-service knee injury from "car surfing." The rationale further was that the Veteran was diagnosed as having patellofemoral pain syndrome of the left knee during service. The VA examiner stated that the Veteran's current diagnosis was degenerative arthritis of the left knee. She explained that chronicity of care was not established by a review of "past and present" medical records because the Veteran was not diagnosed as having a left knee disability "until several years after discharge after active duty." She also explained that, "There is no evidence this Veteran's current left knee arthritis (which is present in both knees worse) was caused by her PFS during service or aggravated by military service." The diagnosis was left knee degenerative arthritis. On VA hip and thigh conditions DBQ in April 2018, the Veteran's complaints included "constant aching in the right hip. She reports this makes it hard to walk." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported a pre-service right hip injury while "car surfing." She denied any flare-ups of right hip pain. She experienced pain on prolonged standing, sitting, walking, and bending over. Physical examination of the right hip showed objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue on the posterior joint line, disturbance of locomotion, interference with sitting, interference with standing, and 5/5 muscle strength. X-rays showed no arthritis. There was evidence of pain on passive range of motion testing. There was no evidence of pain when the hip joint is used in non-weight bearing. The VA examiner opined that it was less likely than not that the Veteran's right hip disability is related to active service and was not caused or aggravated by any incident of service. The rationale for this opinion was based on a review of the claims file and relevant medical literature. The rationale also was that there was no right hip condition noted on the Veteran's enlistment physical examination. The VA examiner stated, "There is no evidence of a chronic hip condition in the private or VA records to present date." She acknowledged the Veteran's reports that she injured her right hip prior to service and experienced a flare-up of right hip pain during service. There was no evidence that the Veteran's right hip disability was caused by service or to establish a continuity of care following service. The diagnosis was right hip bursitis. The contemporaneous evidence does not show that the either the Veteran's right hip disability or her left knee disability clearly and unmistakably existed prior to active service and clearly and unmistakably was aggravated by service. The Board acknowledges the Veteran's consistent reports that she injured her right hip and left knee prior to active service. The Board also finds the Veteran's report at her pre-enlistment physical examination in May 1979 that she had no right hip or left knee disabilities at that time highly persuasive as to her physical condition at service entrance because this reported pre-service medical history is contemporaneous to service and is contained on a document completed and signed by the Veteran. The Board notes in this regard that veterans generally are presumed to enter on to active service in sound condition unless a disease or defect is noted at service entrance. Here, the Veteran denied any relevant pre-service medical history at pre-enlistment physical examination in May 1979 which is contemporaneous to service entrance in November 1979 and clinical evaluation was completely normal. The VA examiner specifically found in April 2018 that the Veteran's in-service right hip and left knee injuries were not related to her reported pre-service injuries while "car surfing." This examiner also concluded that there was no evidence establishing a continuity of care for the current right hip or left knee disabilities and anything which happened to the Veteran prior to or during her active service. These opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As discussed above, the attorney's argument on the record at the virtual Board hearing in July 2021 regarding the alleged adequacy of the medical evidence of record (and the need for new VA examinations) is not persuasive. The attorney also argued at the hearing that the Veteran's complaints of right hip and left knee pain resulted in functional impairment such that service connection is warranted for both of these disabilities under Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). This argument is not supported by a review of the medical evidence. Contrary to the attorney's argument, the April 2018 VA examiner concluded that there was no evidence of a chronic right hip disability in the post-service medical evidence and the post-service left knee pain is not related to active service. Id. The Veteran otherwise has not identified or submitted any evidence demonstrating her entitlement to service connection for a right hip disability or for a left knee disability. As such, and for these reasons, the VA medical examiner's opinion is the most probative of record. In summary, the Board finds that service connection for a right hip disability and for a left knee disability is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.