Citation Nr: 21066220 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-40 784A DATE: October 29, 2021 ORDER Entitlement to service connection for a left hip disability, to include as secondary to multiple service-connected right and left knee conditions is denied. Entitlement to service connection for a left ankle disability, to include as secondary to multiple service-connected right and left knee conditions is denied. Entitlement to service connection for gout, to include as secondary to multiple service-connected right and left knee conditions is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran's left hip disability had onset during or was caused by service, or was caused or aggravated by his service-connected bilateral knee conditions. 2. The evidence does not show that the Veteran's left ankle disability had onset during or was caused by service, or was caused or aggravated by his service-connected bilateral knee conditions. 3. The evidence does not show that the Veteran's gout had onset during or was caused by service, or was caused or aggravated by his service-connected bilateral knee conditions CONCLUSIONS OF LAW 1. The criteria for a left hip disability, to include as secondary to service-connected right and left knee conditions have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for a left ankle disability, to include as secondary to service-connected right and left knee conditions have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for gout, to include as secondary to service-connected right and left knee conditions have not been met. 38 U.S.C. §§ 1155, 5107 (b); 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 1978 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge, who is no longer employed by the Board, in June 2020 due to retirement. A transcript of the hearing is of record. The Veteran declined an additional opportunity to testify at another Board hearing by failing to respond to a March 2021 letter asking if he would like an additional hearing within 30 days. The Board remanded this matter in October 2020 and May 2021. The Board finds there has been substantial compliance with its May 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for a left hip disability, to include as secondary to multiple service-connected right and left knee conditions, entitlement to service connection for a left ankle disability, to include as secondary to multiple service-connected right and left knee conditions, and Entitlement to service connection for gout, to include as secondary to multiple service-connected right and left knee conditions The Veteran asserts that his left hip, left ankle, and gout disabilities were caused by his service-connected bilateral knee conditions. Service treatment records are silent for complaints, treatment, or diagnosis of a left hip, left ankle, or gout disability. VA treatment records in October 2012 showed diagnosis of moderate degenerative joint disease in both hips and an assessment of pseudogout. In a February 2013 VA examination, the Veteran said that his ankle, feet, and back disabilities were related to his knees. He said his knees started giving out in 1979 and 1980, and that since then he had problems with his ankles, feet, and back. He denied any history of injury to his ankles, feet, or back. In another February 2013 VA examination, the Veteran said his scars, hip, and thigh disabilities were related to his knee disabilities. He denied any injury to his hip. In a January 2015 VA treatment record, it was noted that the Veteran had four gout flare ups. The Board notes that VA opinions were provided for the Veteran's gout, left hip, and left ankle disabilities in November 2018 and March 2019, respectively. However, these opinions were found to be inadequate by the Board and will not be discussed. In an August 2019 VA treatment record, it was note that the Veteran suffered from traumatic arthritis in his ankles. At the June 2020 Board hearing, the Veteran testified that his gout was "everywhere." He also stated that his left hip was related to his knees, similar to how his right hip was related to his knees. The Veteran finally said that he was told his gait affected his ankles. The Board again notes that VA opinions were provided for the Veteran's gout, left hip, and left ankle disabilities in January 2021. However, these opinions were found to be inadequate by the Board and will not be discussed. In an August 2021 left hip VA opinion, the examiner opined that the Veteran's left hip disability was less likely than not related to service. The examiner reasoned that the service treatment records were silent for a left hip injury or treatment while in service. The examiner also determined that he could not provide a baseline level of severity of the left hip disability and stated that medical evidence was not sufficient to support a determination of a baseline level of severity. The examiner opined that the left hip disability was not at least as likely as not aggravated beyond its natural progression by the service-connected bilateral knee disabilities. The examiner reasoned that the first left hip complaint was noted in 2013, 33 years post-service. The knee disability included chondromalacia right knee with limitation of flexion and extension, chondromalacia with degenerative joint disease of let knee with limitation of flexion, and left and right meniscal condition. Chondromalacia was an affliction of the hyaline cartilage coating of the articular surfaces of the bone. This resulted in the softening and then subsequent tearing, fissuring, and erosion of hyaline cartilage. The examiner said that most commonly, it was recognized as involving the extensor mechanism of the knee and accordingly was often referred to as chondromalacia of the patella, patellofemoral syndrome, or runner's knee. Symptoms were located in the knee and did not affect any other joint. There was no evidence to prove that any limitation of flexion or extension of the knee would have any impact on the hip. The pain experienced in knee osteoarthritis/degenerative joint disease in particular was well-recognized as typically transitioning from intermittent weight-bearing pain to a more persistent, chronic pain in the area that was diseased such as the knee joint itself. There was no evidence to prove that osteoarthritis/degenerative joint disease of the knee would have any impact to the hip. The meniscus had an important weight-bearing function, and its absence interfered with the biomechanics of knee joint, leading to early degenerative changes, but like the other conditions, it only affected the knee joint itself and not the hip. The examiner also stated that as far as the gout, it typically affected smaller joints and not the hip joint. However, the knee disability did not cause the gout and was unrelated to it. Gout was a picturesque presentation of uric acid disturbance. It was the most well understood and described type of arthritis that was not related to degeneration such as with the hip diagnoses. In an August 2021 gout VA opinion, the examiner opined that the Veteran's gout was less likely than not related to service. The examiner reasoned that the service treatment records were silent for gout while in service. He stated that gout was mentioned around 2014, 34 years post-service. The examiner also determined that he could not provide a baseline level of severity of the gout and stated that medical evidence was not sufficient to support a determination of a baseline level of severity. The examiner opined that gout was not at least as likely as not aggravated beyond its natural progression by the service-connected bilateral knee disabilities. The examiner reiterated the background and pathology of the knee disabilities as provided in the left hip VA opinion. The examiner said here was no evidence to prove that any limitation of flexion or extension of the knee would have any impact on any other joint. The pain experienced in knee osteoarthritis/degenerative joint disease in particular was well-recognized as typically transitioning from intermittent weight-bearing pain to a more persistent, chronic pain in the area that was diseased such as the knee joint itself. There was no evidence to prove that osteoarthritis/degenerative joint disease of the knee would have any impact to any other joint. The meniscus had an important weight-bearing function, and its absence interfered with the biomechanics of knee joint, leading to early degenerative changes, but like the other conditions, it only affected the knee joint itself and not any other joint. The examiner stated that the knee disability did not cause the gout and waws unrelated to it. As stated above, gout was a picturesque presentation of uric acid disturbance. It was the most well understood and described type of arthritis that was not related to degeneration such as with the hip diagnoses. In an August 2021 left ankle VA opinion, the examiner opined that the Veteran's left ankle disability was less likely than not related to service. The examiner reasoned that the service treatment records were silent for left ankle disability while in service. He stated that the first left ankle complaint was mentioned in 2013, 33 years post-service. The examiner also determined that he could not provide a baseline level of severity of the left ankle disability and stated that medical evidence was not sufficient to support a determination of a baseline level of severity. The examiner opined that left ankle disability was not at least as likely as not aggravated beyond its natural progression by the service-connected bilateral knee disabilities. The examiner first stated that pain was subjective with no actual real diagnosis warranted other than the pain itself, which the VA does not recognize as a diagnosis. The examiner then reiterated the background and pathology of the knee disabilities as provided in the left hip VA opinion. The examiner said there was no evidence to prove that any limitation of flexion or extension of the knee would have any impact on the ankle. The pain experienced in knee osteoarthritis/degenerative joint disease in particular was well-recognized as typically transitioning from intermittent weight-bearing pain to a more persistent, chronic pain in the area that was diseased such as the knee joint itself. There was no evidence to prove that osteoarthritis/degenerative joint disease of the knee would have any impact to the ankle. The meniscus had an important weight-bearing function, and its absence interfered with the biomechanics of knee joint, leading to early degenerative changes, but like the other conditions, it only affected the knee joint itself and not the ankle. The examiner stated that the knee disability did not cause the gout and was unrelated to it. As far as the gout, the examiner stated that this was really the only explanation for the Veteran's left ankle pain. However, the knee disability did not cause the gout that in turn would cause the pain to the left ankle. As stated above, it was the most well understood and described type of arthritis that was not related to degeneration such as with the knee diagnoses. Overall, the Board finds the Veteran's left hip, left ankle, and gout did not have onset during and was not caused by service or caused or aggravated by his service-connected bilateral knee disabilities. Initially, the Board notes that the Veteran has not asserted that his left hip, left ankle, or gout are directly related to service. In fact, the Veteran has stated that he did not have any initial injury and that, instead, these disabilities began due to his knee disabilities. Further, service treatment records show no complaints, treatment, or diagnosis of left hip, left ankle, or gout disabilities. The Veteran reported his onset of these disabilities over 30 years following service. The Board acknowledges that the August 2021 VA examiner did not provide an adequate opinion for direct service connection for the left hip, left ankle, or gout disabilities. Specifically, the examiner based the opinion on a lack of contemporaneous records, which is not an absolute bar to service connection. 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"). However, considering the evidence of the record as whole where the Veteran himself has not asserted any theories of service connection on a direct basis, has denied any injuries in service, and evidence of these disabilities was not noted until over 30 years following separation from service, the Board finds that the probative and competent evidence of record is against both presumptive and direct service connection. Regarding secondary service connection, initially the Board acknowledges that the Veteran's right hip is service-connected and associated with his service-connected knee disability. However, there is no probative evidence of record to suggest that the Veteran's left hip disability therefore should also be service connected to his knee disabilities. The most recent August 2021 VA examiner had full access to the record and did not provide any such findings. Additionally, the Board acknowledges that the August 2021 VA examiner found that the left ankle disability was related to the gout. However, as the gout is not service connected, service connection on a secondary basis must be denied due to lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Finally, the Board acknowledges that the August 2021 VA examiner seems to provide conflicting reasoning on whether there is a left ankle disability. However, the absence of such documentation does not serve as the primary supporting factor for the examiner's opinion and thus, does not detract from the overall probative value. Thus, the Board finds as a whole that the record combined with the August 2021 VA opinions is most probative in determining that secondary service connection is not warranted for the Veteran's left hip, left ankle, and gout disabilities. The opinions were based on a review of the record and the record as a whole does not provide any contrary opinions. The Veteran has offered his own opinion on etiology, stating that his left hip, left ankle, and gout disabilities are causally related to his service-connected bilateral knee conditions. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is not competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d at 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the August 2021 VA examiner's opinions than the Veteran's own contentions, and, again, there are no opinions to the contrary. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence showing a nexus between the Veteran's left hip, left ankle, and gout disabilities and service and left hip, left ankle, and gout disabilities and his service-connected bilateral knee conditions, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.