Citation Nr: 21064380 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 07-21 037 DATE: October 20, 2021 ORDER Entitlement to service connection for left knee patellofemoral syndrome is granted. Entitlement to service connection for left hip strain is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's left knee patellofemoral syndrome is related to his active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran's left hip strain is related to his active duty service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee patellofemoral syndrome are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left hip strain are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1980. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for left leg and left hip residual injury. In October 2010, the Veteran testified during a Travel Board hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. In correspondence dated February 2017, the Veteran was notified that the Veterans Law Judge (VLJ) who presided over his October 2010 Board hearing was no longer employed at the Board, and he was offered the opportunity to be scheduled for another hearing. Applicable law and regulations require that the VLJ who conducts a hearing in the legacy appeals system must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In April 2017, the Veteran indicated that he did not wish to appear at another Board hearing and to consider his case on the evidence of record. The Board remanded the matters in December 2010, October 2012, January 2014, March 2015, September 2015, September 2016, and September 2017 for further development. In February 2019, the Board denied the claim of service connection for left leg disorder, to include as secondary to service-connected spine disabilities, and remanded the claim of service connection for left hip disorder, to include as secondary to service-connected spine disabilities, for further development. In April 2020, the Court vacated the part of the Board's February 2019 decision that denied entitlement to service connection for a left leg disorder, to include as secondary to service-connected disabilities, and remanded the matter for additional development and readjudication in compliance with directives specified in an April 2020 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA. The Court lacked jurisdiction over the claim of service connection for left hip disorder, to include as secondary to service-connected spine disabilities, that was remanded by the Board in February 2019. In July 2020, the claims of service connection for left leg disorder and left leg disorder were remanded by the Board for further development. As the Board is granting the claims of service connection in full, discussion of compliance with the Board's remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the Veteran originally filed a claim of service connection for left leg disability, the Board will broaden the Veteran's claim and consider all leg diagnoses raised by the record. The Veteran in this case has been diagnosed with left knee patellofemoral syndrome and is already service-connected for left lower extremity radiculopathy associated with residual injury lumbar spine. Thus, the Board has characterized the issue more broadly. Entitlement to service connection for left knee patellofemoral syndrome and left hip strain Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends his left knee and left hip pain symptoms began in service as a result of an in-service automobile accident and in-service falls and have continued since his separation from service. In light of the favorable decision to grant the Veteran's claims of service connection for left knee patellofemoral syndrome and left hip strain on a direct incurrence basis, a discussion of any other theory of entitlement is not necessary. An August 1979 service treatment record indicated that the Veteran was a passenger in a motor vehicle accident. During a November 1980 VA examination, the Veteran reported that his hips had been painful since 1978 as a result of lifting materials. The examination did not offer an opinion as to whether the Veteran's left hip disability was less likely than to related to service. In October 2015, Veteran reported during a VA examination that he injured his left knee and hips during his in-service motor vehicle accident and has experienced left knee and hip pain since the accident. The examiner determined that the Veteran's knee injury and left hip condition were acute during service and that there was no chronicity of care noted which would create a nexus between the current disabilities and military service. Thus, it was less likely than not that the Veteran's left knee and left hip disabilities were related to service. During a May 2017 VA examination, the Veteran was diagnosed with left knee patellofemoral pain syndrome and left hip strain. The examiner concluded that the Veteran's left hip and left knee disorders were not incurred during or otherwise linked to his service. The examiner reasoned that the Veteran's service treatment records were negative for any complaints, treatment, or diagnoses related to the left hip and the left knee. At his December 2017 VA examination, the Veteran reported an onset of left knee pain and left hip pain after the 1979 motor vehicle accident. The Veteran noted that during the accident, the dashboard pushed back into his knees. The VA examiner found that the Veteran's left knee disability and left hip strain were less likely than not related to service. The examiner reasoned that there were no medical records available with complaints of left hip pain or left knee pain in service, and no records available regarding the car crash to associate with the Veteran's left knee disability or left hip strain. The examiner noted that the Veteran's lower extremities were normal on his exit examination and his May 2017 x-rays were normal. In addition, the earliest record of hip pain was in August 1980. In June 2021, a VA physician assistant noted that the Veteran's service treatment records are negative for any diagnosis or complaints of hip pain during active duty service. The physician assistant indicated that the first documented complaint/treatment of left hip pain was during a 1980 VA examination which noted a tender hip with normal range of motion. The separation examination noted normal lower extremities and was silent for hip condition. Despite the tenderness noted at the 1980 VA examination, no chronic diagnosis was rendered. Thus, the physician assistant was unable to link the hip strain diagnosed in 2017 to the acute events of falling or motor vehicle accident during service with a normal separation examination and no chronic diagnosis rendered at that 1980 VA evaluation. In a September 2021 addendum opinion, the VA physician assistant indicated that while the Veteran separated from service in 1980 and the 1980 VA examination noted left hip tenderness, no chronic diagnosis was rendered in 1980. In addition, the claims folder is silent for a chronic left hip condition until the 2017 diagnosis of left hip strain. Thus, there is no evidence of a chronic left hip condition diagnosed within one year of separation from service. For the following reasons, entitlement to service connection for left knee patellofemoral syndrome and left hip strain is warranted. A May 2017 VA examination report noted the Veteran's diagnoses of left knee patellofemoral syndrome and left hip strain. Thus, the Veteran meets the current disability requirement. An August 1979 service treatment record indicated that the Veteran was a passenger in a motor vehicle accident. Thus, the Veteran meets the in-service injury requirement. The October 2015, May 2017, December 2017, June 2021, and September 2021 VA opinions are of little probative weight as they relied on the lack of contemporaneous medical evidence without considering the Veteran's lay statements regarding continuous left knee and left hip pain symptoms both in and since his separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Veteran has consistently reported throughout the appeal period that he experienced left knee and left hip pain symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's reports are credible and competent as there is nothing to explicitly contradict them. To the extent that the grant of service connection in this matter is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's left knee patellofemoral syndrome and left hip strain are related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left knee patellofemoral syndrome and left hip strain is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.