Citation Nr: 21063914 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-44 138 DATE: October 18, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a left hip disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record does not show that the Veteran has a chronic, clinically diagnosed left knee disorder for VA purposes and any left knee pain does not result in functional impairment. 2. The preponderance of the evidence of record does not show that the Veteran has a chronic, clinically diagnosed left hip disorder for VA purposes and any left hip pain does not result in functional impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980 with additional reserve duty. In March 2019, the Board denied entitlement to service connection for bilateral hearing loss and remanded the remaining issues for evidentiary development. During development, a July 2020 rating decision granted entitlement to service connection for 8 of the previously remanded issues. As such, they are no longer on appeal. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. Service Connection 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left knee disorder 2. Entitlement to service connection for a left hip disorder The Veteran seeks entitlement to service connection for a left knee disorder and left hip disorder, which he claims are the result of being a paratrooper during active duty. Initially, the Board observes that the Veteran's service records show November and December 1978 complaints of left knee pain of one year's duration, which was of unknown etiology. His May 1980 examination for separation from active duty is silent for any left knee or left hip condition. The Veteran's service records also confirm that he was qualified for parachute exercises. In May 2015, the Veteran underwent a private examination by the diagnostic consultant Dr. P.J.Y. It was stated that while in jump school at Fort Benning, Georgia, the Veteran suffered "an extremely hard vertical landing wherein he hit the ground violently and sustained progressive long axis trauma through his appendicular and axial structures." It was stated that he initially was treated by corpsmen then by base medical personnel for injuries to the ankles, knees, hips, and lumbar spine. Dr. P.J.Y. diagnosed posttraumatic residual degenerative joint disease of the left knee and left hip and opined that it was more likely than not that it was directly related to the cited jump landing during paratrooper training. Pursuant to the Board's March 2019 remand, the Veteran received several VA orthopedic-type examinations in December 2019, wherein the examiner stated that there is no objective evidence to warrant a diagnosis of any left knee or left hip condition. Range of motion and other testing revealed normal results for the left knee and left hip. Left knee x-rays showed "no fracture, dislocation or significant arthritic change." The examiner concluded that the Veteran's left knee condition is less likely than not attributable to service. The examiner reasoned that "Veteran with no [left knee] condition prior to enlistment ... who as [a parachutist] was exposed to several micro trauma, but no objective evidence was found during our evaluation." The examiner also concluded that the Veteran's left hip disorder is less likely than not attributable to service. The examiner remarked "Veteran with no [left hip] condition prior to enlistment ... who as [a parachutist] was exposed to several micro trauma on his right and left hip, but no change of the ROM and no objective evidence during our evaluation." When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Here, the Board finds the opinions of the December 2019 examiner to be highly probative because they were based upon a review of the Veteran's entire electronic claims file, as well as other pertinent medical records, and full examinations, to include both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Notably, upon examination, the VA examiner found no objective evidence to warrant a diagnosis of a left knee or left hip disorder. Meanwhile, the Board affords little probative value to the May 2015 private report because there is no indication that Dr. P.J.Y. had reviewed the entirety of the Veteran's claims file and there are no x-rays, other diagnostic findings or other clinical findings of record indicative of degenerative joint disease. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In essence, the evidence of a current diagnosis of a left knee or left hip disorder is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability such as degenerative joint disease requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in-service and thereafter, his reports are not competent to relate such to his military service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. For VA purposes, the Veteran's left knee and left hip pain must result in a functional impairment of earning capacity to constitute a disability. Here, the record does not contain this evidence. The December 2019 VA examiner found no diagnosis of either condition was warranted and there was no functional impact as to occupation. In light of the absence of any competent evidence of a chronic, clinically diagnosed left knee disorder and left hip disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.