Citation Nr: 21066363 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-17 673 DATE: October 29, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection, to include on a secondary basis, for a left hip disability is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for a thoracolumbar spine disability is remanded. Entitlement to service connection, to include on a secondary basis, for a right lower extremity nerve disability is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 2. The Veteran's left hip disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection, to include on a secondary basis, for a left hip disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to May 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in October 2018. The hearing transcript is associated with the claims file. The appeal was last remanded by the Board in October 2019 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a cervical spine disability A February 1981 service treatment record documents that the Veteran had pain between her shoulders with spasms and aches. A May 1982 service treatment record noted that the Veteran suffered cervical spasms and neck tenderness. Another May 1982 service treatment record documented reports of neck pain. A November 1983 report of medical examination was silent for any neck, back, or hip problems and November 1983 and February 1984 reports of medical history noted that the Veteran did not have arthritis; rheumatism; bursitis; bone, joint or other deformity; nor recurrent back pain. A December 2011 private treatment record noted a diagnosis of subluxation of the cervical, thoracic, and lumbar spine and that the Veteran's carriage and gait displayed noticeable difficulty. The Veteran was afforded an in-person VA examination for her cervical spine disability in May 2013. The VA examiner documented a diagnosis of degenerative disc disease of the cervical spine diagnosed in May 2013. The VA examiner cited to a service treatment record which documented a sore neck in May 1982. Range of motion testing was normal. The VA examiner determined that the Veterans back and neck disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no documentation to support ongoing care and treatment for a back or neck condition. The Veteran was afforded a video conference hearing with the undersigned Veterans Law Judge in October 2018. With regard to her cervical spine disability, the Veteran testified that she was pushing a deuce and a half when she pulled something and started hurting really bad. She was treated during service and then had no further treatment until years after. The Veteran was afforded an in-person VA examination for her neck disability in July 2019. A diagnosis of spondylosis at C5-6 and C6-7 was noted as well as neck strain. The Veteran reported that she strained her upper back while in service. The Veteran also asserted that she believed her neck disability was secondary to her service-connected right hip disability. Range of motion testing was noted as abnormal or outside of normal range. The VA examiner determined that the Veteran's cervical spine disability impacted her ability to work because it interfered with heavy lifting and prolonged walking. The VA examiner determined that the Veteran's back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no medical evidence that the back disability was incurred in or caused by her service. The VA examiner noted that the Veteran had no significant back injury to result in a long term or chronic back condition. The VA examiner also cited to a March 1984 medical record which documented that the Veteran ambulated without a limp or guarding. The VA examiner determined that the most likely cause of the Veteran's current back condition was the natural aging process or a post military service injury. The VA examiner determined that the Veteran's cervical spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that the Veteran had no significant neck injury to result in a long term or chronic neck condition. The VA examiner cited to a March 1984 medical record which noted that the Veteran's spine was normal with no tenderness and good range of motion. Instead, the VA examiner determined that the most likely cause of the Veteran's cervical spine disability was the natural aging process or a post military service injury. The Veteran was afforded an in-person VA examination in March 2021 for her neck disability. The VA examiner noted a diagnosis of cervical strain diagnosed in 1993. Range of motion of the cervical spine was all normal and there was no evidence of pain although it was noted that pain significantly limited functional ability with repeated use over time. Imaging studies were performed in conjunction with the examination and did not reveal degenerative or post-traumatic arthritis. The VA examiner determined that the Veteran's cervical spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that the current diagnosis was based on subjective information. The VA examiner explained that there was no chronic condition of the neck noted in medical records. The VA examiner noted that the Veteran had an occurrence of cervical pain that resolved and remained asymptomatic without sequelae during active-duty service. An addendum VA opinion was obtained in August 2021 addressing the Veteran's claim for entitlement to service connection for a neck disability. The VA examiner determined that the Veteran's neck disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner asserted that there was no medical documentation of an onset of a neck disability during active-duty service. The VA examiner considered the Veteran's lay statements regarding neck pain caused from pushing a cargo truck but noted that the condition resolved without sequelae and remained quiescent throughout the remainder of her active-duty service. The Board finds that entitlement to service connection for a cervical spine disability is not warranted. The Board emphasizes that four VA opinions unanimously determined that the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board notes that the August 2021 VA examiner agreed with prior VA examiner's that the Veteran's in-service neck complaints had resolved which is consistent with the Veteran's medical records which show that the Veteran had in-service neck complaints but no complaints upon separation from active-duty service or for years thereafter. The Board acknowledges that the Veteran is competent to report when she began experiencing neck symptoms; however, as a layperson lacking in medical training and expertise, she cannot provide a competent opinion on matters as complex as the diagnosis and etiology of her symptoms. As such, her lay assertions regarding a diagnosis and causation of a cervical spine disability are of no probative value. Further, even if her opinion regarding the etiology of a current diagnosis of a cervical spine disability was afforded some probative value, it is far outweighed by the opinion provided by the VA examiner who has greater training and expertise than the Veteran in diagnosing and assessing a cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's neck symptoms and her active service. Moreover, with regard to the years-long evidentiary gap in this case between the 1981 and 1982 in-service injuries and the earliest manifestations of a cervical spine disability in December 2011, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a cervical spine disability. The Veteran's claim is denied. 2. Entitlement to service connection, to include on a secondary basis, for a left hip disability An August 2012 VA treatment record noted that the Veteran had an antalgic gait and an August 2013 VA treatment record noted that the Veteran had an antalgic gait on the right with pain with full weight bearing in the right lower extremity and a slight tilt to the right with ambulation. A September 2013 MRI noted that the Veteran had relatively subtle evidence of a left hip labral tear in the anterosuperior quadrant and minimal osteoarthritis of the left hip. An October 2015 VA examination noted that the Veteran had normal range of motion in her left hip and retained 5/5 strength on flexion, extension, and abduction. The examination also cited to the September 2013 MRI findings of relatively subtle evidence of a left hip labral tear. No etiology opinion was provided addressing the etiology of any hip disability. An April 2016 VA treatment record noted that the Veteran's gait was normal. The Veteran was afforded a video conference hearing with the undersigned Veterans Law Judge in October 2018. The Veteran testified that she believed she had a left hip disability caused by her service-connected right hip and right knee disabilities. She explained that she began experiencing pain in her left hip and went to a doctor who conducted an MRI. The MRI revealed that the Veteran had bursitis in both hips. A December 2018 VA treatment record noted that the Veteran reported an unsteady gait. A subsequent December 2018 VA treatment record noted that the Veteran had a mild antalgic gait which was inconsistent with Veteran's reports of hip pain. The record further notes that the Veteran ambulated 100 feet and the Veteran's gait was not significantly altered. Another December 2018 VA treatment record noted that the Veteran ambulated unassisted with a steady gait. And, a fourth VA treatment record noted that the Veteran had a normal gait and balance without use of an ambulatory aid. The Veteran was afforded a VA examination for her left hip disability in July 2019. The VA examiner noted a diagnosis of left hip degenerative arthritis diagnosed in December 2016. The Veteran reported that she was also diagnosed with bursitis in her left hip. Initial range of motion of the left hip was abnormal with flexion limited to 115 degrees. The VA examiner determined that the Veteran's left hip disability was less likely than not (less than 50 percent probability) proximately due to or the result of her service-connected disabilities. The VA examiner explained that there was "no medical evidence to suggest that the Veteran's left hip disability was due to or the result of a or permanently aggravated by the Veteran's service-connected right hip." The VA examiner emphasized that a March 1984 medical record documented that the Veteran ambulated without a limp or guarding. Instead, the VA examiner opined that the Veteran's left hip disability was most likely caused by the natural aging process or a post-service injury. The VA examiner also cited to a 2005 medical article entitled "Symptoms in the Opposite or Uninjured Joint." The medical literature stated, in relevant part: "The evidence available indicates that an injury in one extremity rarely cases a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the center of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time." A February 2020 VA treatment record noted that the Veteran had normal gait and station with no shuffling or ataxia but with good arm swing. A March 2020 VA treatment record noted that the Veteran did not have an unsteady gait. April 2020 and May 2020 VA treatment records note that the VA provider was unable to assess the Veteran's gait. The Veteran obtained an opinion from a private physician in January 2021. The private physician opined that the Veteran had significant osteoarthritis in her left and right knees which caused her to have an altered gait and thus caused low back and bilateral hip pain. The Veteran was afforded an in-person VA examination for her left hip disability in March 2021. The VA examiner noted a diagnosis of left hip bursitis diagnosed in 2013. During the examination, the Veteran stated that she did not have a diagnosis of a left hip disability but rather pain caused her to "walk funny." The Veteran gave no further history for her left hip condition. The VA examiner noted that medical records indicated that the Veteran was diagnosed with left hip bursitis in 2013 and that there were no further complaints other than an uneven gait which was not observed on evaluation. Range of motion of the left hip was all normal and there was no evidence of pain. The VA examiner determined that the Veteran's left hip disability did not impact her ability work. The VA examiner determined that the Veteran's left hip disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the current diagnosis was based on subjective information. The VA examiner explained that there was no medical evidence indicating that the Veteran's left hip disability was treated during or upon release from active-duty service. An addendum VA opinion was obtained in August 2021. The VA examiner determined that the Veteran's left hip disability was not related to her active-duty service. The VA examiner opined that the Veteran's left hip bursitis was likely due to conditioning, age, and progressive wear and tear and not related to any incident during active-duty service from 1980 to 1984. The VA examiner also noted that the Veteran's left hip bursitis diagnosed in 2013 was a transient diagnosis based on acute inflammation and that there was no current diagnosis, evaluation, or treatment for the last three years. The VA examiner also considered the Veteran's diagnosis of osteoarthritis and explained that the Veteran's arthritis was due to conditioning and normal wear and tear expected for age, was characterized as mild, and was not related to active-duty military service. According, the VA examiner determined that the Veteran did not have a left hip disability and noted that the Veteran denied left hip pain or pathology. The VA examiner also opined against secondary causation or secondary aggravation between the Veteran's left hip disability and her service-connected right hip disability. The VA examiner stated that there was no medical evidence showing that the left hip disability was aggravated by the right hip. The VA examiner further explained that there was no medical literature to support that a right hip disability could cause any incremental increase. The Veteran claims entitlement to a left hip disability secondary to her right hip disability and caused by an altered gait due to her right hip and right knee disabilities. The Veteran has been awarded service connection for a right hip disability, a right knee disability, a gastric ulcer, and tinnitus. The Board notes that the Veteran was diagnosed with left hip bursitis and degenerative arthritis during the period on appeal. Accordingly, the first element for service connection has been met. The Veteran has not alleged, and the evidence does not show that the Veteran's left hip disability is directly related to service. Rather, the Veteran and her representative argued that the Veteran's left hip disability is secondary to her service-connected right hip and right knee disabilities and due to an altered gait caused by her service-connected disabilities. Therefore, the question for the Board is whether secondary service connection is warranted for the Veteran's left hip disability. The Board finds that it is not. The Board acknowledges the favorable opinion provided in January 2021 by a private physician. The private physician opined that the Veteran had significant osteoarthritis in her left and right knees which caused her to have an altered gait and thus caused low back and bilateral hip pain. The Board emphasizes, however, that the January 2021 private physician did not state whether he personally examined the Veteran. Moreover, the private physician did not cite to any of the Veteran's medical records nor to any medical literature in support of his opinion. On the other hand, the Board notes that three VA medical opinions were obtained which are unanimously against the Veteran's claim. The Board affords greater probative value to the July 2019 and August 2021 VA examiner's reports which were based on a thorough review of the Veteran's medical records and medical literature or the lack thereof indicating that a disability in an opposite joint could not cause a disability in the other joint absent certain criteria. The July 2019 VA examiner cited to medical literature for the proposition that a disability in an opposite joint could only occur with major displacement of the center of gravity of the body while walking, significant shortening of the injured limb, and the presence of an abnormal gait pattern for an extended period of time. Here, there is no evidence that one lower extremity is significantly shortened compared to the other to cause an opposite hip problem. Nor is there evidence of an abnormal gait pattern for an extended period of time as the Veteran's gait was shown to vary during the period on appeal with the most recent medical records indicating that the Veteran had a normal gait. See February 2020 and March 2020 VA treatment records and March 2021VA examiner's report. The Board acknowledges that the Veteran is competent to report when she began experiencing left hip symptoms; however, as a layperson lacking in medical training and expertise, she cannot provide a competent opinion on matters as complex as the diagnosis and etiology of her symptoms. As such, her lay assertions regarding a diagnosis and causation of a left hip disability are of no probative value. Further, even if her opinion regarding the etiology of a current diagnosis of a left hip disability was afforded some probative value, it is far outweighed by the opinion provided by the VA examiner who has greater training and expertise than the Veteran in diagnosing and assessing a left hip disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's left hip symptoms and her service-connected right hip or right knee disabilities. The Board finds that the preponderance of the evidence is against the Veteran's claim. The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection, to include on a secondary basis, for a thoracolumbar spine disability, is remanded. The Veteran obtained an opinion from a private physician in January 2021. The private physician opined that the Veteran had significant osteoarthritis in her left and right knees which caused her to have an altered gait and thus caused low back and bilateral hip pain. The Board notes that no VA opinion has been obtained addressing secondary service connection. Accordingly, remand is required to obtain a VA opinion addressing whether the Veteran's service-connected right hip or right knee disabilities caused or aggravated her thoracolumbar spine disability. 2. Entitlement to service connection, to include on a secondary basis, for a right lower extremity nerve disability, is remanded. The Veteran was afforded a VA examination in October 2015 for her claimed right lower extremity neuropathy. The VA examiner explained that the Veteran's right lower extremity peripheral neuropathy was due to her back condition. To the extent that the Veteran's claimed right lower extremity disability is related to her back disability, the Board finds that it is inextricably intertwined with the claim for service connection for a back disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Because adjudication of this claim will potentially affect the right lower extremity nerve disability claim, adjudication of the Veteran's claim is deferred. The right lower extremity nerve disability claim should not be returned to the Board until the claim for service connection for a thoracolumbar spine disability is adjudicated and is longer pending or is certified to the Board for appellate review. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran's thoracolumbar spine disability. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's thoracolumbar spine disability is caused by or etiologically related to her service-connected right hip or right knee disabilities? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's thoracolumbar spine disability was aggravated (any incremental increase in the thoracolumbar spine disability beyond its normal progression) by her service-connected right hip or right knee disabilities, or any other service-connected disability? If it is determined that the thoracolumbar spine disability is aggravated by a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. If the VA examiner provides a favorable secondary service connection opinion for the Veteran's thoracolumbar spine disability, the VA examiner must opine: c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's right lower extremity nerve disability is caused by or etiologically related to her thoracolumbar spine disability? d. Is it at least as likely as not (50 percent or greater probability) that the Veteran's right lower extremity nerve disability was aggravated (any incremental increase in the right lower extremity nerve disability beyond its normal progression) by her thoracolumbar spine disability, or any other service-connected disability? If it is determined that the right lower extremity nerve disability is aggravated by a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. (Continued on the next page) 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford her a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.