Citation Nr: 21065593 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-38 786 DATE: October 26, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to a service-connected right ankle disability, is DENIED. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected right ankle disability, is DENIED. Entitlement to service connection for a right upper-leg disability, to include as secondary to a service-connected right ankle disability, is DENIED. Entitlement to service connection for a right lower-leg disability, to include as secondary to a service-connected right ankle disability, is DENIED. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's right knee condition was incurred during U.S. Air Force service; additionally, his right knee condition is not proximately due to, or aggravated by, any service-connected disability. 2. The preponderance of the evidence is against a finding that the Veteran's right hip condition was incurred during U.S. Air Force service; additionally, his right hip condition is not proximately due to, or aggravated by, any service-connected disability. 3. The preponderance of the evidence is against a finding that the Veteran's right upper-leg condition was incurred during U.S. Air Force service; additionally, his right upper-leg condition is not proximately due to, or aggravated by, any service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran's right lower-leg condition was incurred during U.S. Air force service; additionally, his right knee lower-leg condition is not proximately due to, or aggravated by, any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 2. The criteria for entitlement to service connection for a right hip disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 3. The criteria for entitlement to service connection for a right upper-leg disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 4. The criteria for entitlement to service connection for a right lower-leg disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from August 1952 to August 1956. The certificate of release from active duty (DD214) reflects that the Veteran served as an airplane mechanic. Entitlement to service connection for right knee, hip, upper-leg, and lower-leg disabilities, to include as secondary to a service-connected right ankle disability, is denied. In September 2012, a VA Form 21-526b was associated with the claims file. Therein, the Veteran initiated claims for service connection for right upper and lower leg, and right knee disabilities, secondary to a service-connected right ankle disability. In April 2013, a VA Form 21-526b was associated with the claims file. Thereby, the Veteran initiated a claim for service connection for a right hip disability, secondary to a service-connected right ankle disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may also 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 aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, 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. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran's claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In May 2013, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured right hip, thigh, knee, and lower leg conditions. The examiner noted diagnoses for right hip, thigh, knee, and lower leg degenerative joint disease (DJD). The examiner opined that the right hip, thigh, knee, and lower leg DJD were less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected right ankle disability. The examiner supplied the following rationale: "literature does not support the theory that dysfunction in one joint causes dysfunction in another." In September 2014, a VA From 21-0820 was associated with the claims file. Therein, it was noted that the Veteran's primary area of pain was in the right thigh and calf, and it continues to get worse. In April 2016, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board observes that the STRs do not contain a notation to support an in-service injury of the right knee, hip, or upper and lower leg during the Veteran's service in the United States Air Force. Additionally, during the Veteran's June 1956 discharge examination, there were no reported issues with the right lower extremity. The military examiner only noted a hospitalization for a nervous condition and a childhood tonsillectomy, both without complications or sequela. In May 2017, the Veteran supplied sworn testimony to a Veterans' Law Judge (VLJ) who is no longer employed by the Board. The Veteran testified that, "the knee problems, the hip problems, I believe is, has all been you know caused by this in time with deterioration, with age and I favor my right side. So when we talk about the knee and the hip yes there are problems there and to me all these problems stem over time and so forth when I originally fell off the wing of that airplane and injured myself." In May 2017, a notation was generated at the Phoenix Midtown VA Clinic. At that time, the VA provider noted pain of the Veteran's right hip, knee, and ankle. The provider noted that the Veteran utilized a four-wheeled walker for mobilization. In March 2018, the Veteran underwent VA examinations that addressed the nature and etiology of any currently endured right knee, lower leg, hip, and thigh conditions. The examiner noted diagnoses for right knee and bilateral hip osteoarthritis. The Veteran reported the following medical history: "his right hip and right knee have been bothering him 'for a long time.''' The March 2018 VA examiner opined that claimed conditions were less likely than not (less that 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner supplied the following rationale: "(t)here is a record only of veteran's separation exam, dated 6/27/56. In that exam, there is no reference to any right hip or right knee conditions. Also, of note, is Veteran's Statement in Support of Claim, date-stamped 4/21/10, in which veteran relates the history of his original right foot and ankle injury. He does not mention anything about the right hip or right knee. He states at that time (2010) that his 'right leg' had been bothering him for the past 4-5years. Finally, there are 2 statements from veteran's family doctor, Dr. (B) that he had been treating veteran for right ankle pain and arthritis. Dr. (B) does not report any right hip or knee conditions." The examiner also opined that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected right ankle disability. The examiner supplied the following rationale: "(r)eview of the medical literature shows that dysfunction in one joint rarely causes dysfunction in another, except when damage/injury results in a major displacement of the center of gravity of the body while walking, or significant shortening of the injured extremity (>5 cm). There is no evidence, based on observation and physical exam findings, that this has occurred in this case. . . . Further, if the center of gravity were so displaced that it did cause injury, the injury would be to the contralateral side, not the same side, as stated in this instance." In October 2019, the Veteran supplied sworn testimony to the undersigned VLJ. When the undersigned asked how long the Veteran had endured right hip, upper and lower leg, and knee disorders, the Veteran responded with the following: "you know, over time, it goes back quite a ways. But I lived through it, you know, I was younger, accepted it. As I get older, it, you know, becomes more worse or bothers me more. I'm 86-years-old now." In January 2020, the Board addressed the four service-connection claims listed on the title page. At that time, the Board remanded the Veteran's claims to the AOJ to obtain any additional private medical records and associate them with the claims file. In January 2020, the AOJ sent the Veteran a Subsequent Development Letter. The AOJ noted that the Veteran had indicated treatment at East Valley Mesa AZ. The AOJ supplied the Veteran with the requisite authorization VA Forms 21-4142 and -4142a. In June 2021, the Board addressed the four claims on the title page. At that time, the Board noted that the July 2013 and March 2018 VA examiners did not address whether the Veteran's service-connected right ankle aggravated the reported right lower extremity diagnoses beyond their natural progression. The Board remanded the claims to the AOJ to obtain a VA examination report that properly addressed any aggravation on the right leg conditions due to the service-connected right ankle disability. In August 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured hip and thigh conditions. The examiner noted diagnoses for bilateral hip degenerative arthritis, which was not post-traumatic in nature. In August 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured knee and lower leg conditions. The examiner noted diagnoses for right knee degenerative arthritis, which was not post-traumatic in nature. The August 2021 examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's current right leg disorders were proximately due to, or the result of, the Veteran's service connected right ankle disability. The examiner supplied the following rationale: "Veteran's medical records are absent for any leg length inequality or significant gait abnormality of record." The examiner also opined that medical records, treatment notes, and statements did not support any aggravation of the diagnosed conditions beyond their natural progression by the service-connected right ankle disability. The examiner relayed that, "medical literature shows that dysfunction in one joint rarely causes dysfunction in another, except when damage/injury results in a major displacement of the center of gravity of the body while walking, or significant shortening of the injured extremity. There is no evidence, based on observation and physical exam findings, that this has occurred in this case." The examiner also relayed that, "if the center of gravity were so displaced that it did cause injury, the injury would be to the contralateral side, not the same side, as stated in this instance." The examiner concluded with the following: "(t)he findings of bilateral arthritis in veteran's hips and arthritis in veteran's right knee are more likely than not due to the natural aging process. Less likely than not proximately due to or the result of service connected Right Ankle condition." The Board observes that, throughout the claim period, the Veteran has maintained diagnoses for right hip, knee, and upper- and lower-leg disorders. Consequently, the first requisite element for direct and secondary service connection has been substantiated. See Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. The Board notes that the Veteran's available STRs do not contain a notation to indicate an in-service injury (or injuries) of the right lower extremity. However, a December 2009 VA memorandum indicates that at least a portion of the Veteran's STRs were lost in a fire. Nevertheless, the Board now finds that the Veteran has competently and credibly testified about an in-service injury event that is consistent with Veteran's duties in the U.S. Air Force: an airplane mechanic falling off a wing. Consequently, the Board now finds that the second requisite element for direct service connection has been substantiated for the Veteran's claims for service connection for right knee, hip, upper- and lower-leg disabilities. See Hickson, 12 Vet. App. at 253. However, the March 2018 VA examiner opined that the claimed disorders were less likely than not (less that 50 percent probability) incurred in or caused by the claimed in-service injury or event. The examiner noted that the Veteran had relayed that his right lower appendage disorders bothered him about five decades after separation from the military. Consequently, the Board finds that the third requisite element for direct service connection has not been substantiated. Id. The Board notes that the Veteran has been service connected for a right ankle disability since March 12, 2009. Consequently, the second requisite element for secondary service connection is substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. However, the Board observes that the August 2021 examiner opined that it was less likely than not that the claimed disorders / disabilities were proximately due to, or the result of, the service-connected right ankle disability. The examiner relayed that there had not been any aggravation of the Veteran's right lower extremity disorders by the service-connected right ankle disability. Consequently, the third and final requisite element for secondary service connection has not been substantiated. Therefore, the Board must deny these secondary service-connection claims. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claims for service connection for right hip, knee, and upper- and lower-disabilities. Since the preponderance of the evidence is against these claims, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's direct and secondary claims for service connection for right hip, knee, and upper- and lower-disabilities must be denied, because the preponderance of the evidence weighs against his claims. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.