Citation Nr: 21066590 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-24 228A DATE: November 1, 2021 ORDER Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a right shoulder condition, as secondary to a right hip condition is denied. Entitlement to service connection for a right elbow condition, as secondary to a right hip condition is denied. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran's pre-existing right knee condition was aggravated by active service beyond the natural progression of the disease. 2. A preponderance of the evidence is against a finding that the Veteran's pre-existing right hip condition was aggravated by active service beyond the natural progression of the disease. 3. A preponderance of the evidence is against a finding that the Veteran's pre-existing left hip condition was aggravated by active service beyond the natural progression of the disease. 4. A preponderance of the evidence is against a finding that the Veteran's right shoulder condition was caused or aggravated by his right hip condition. 5. A preponderance of the evidence is against a finding that the Veteran's right elbow condition was caused or aggravated by his right hip condition. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for a right knee condition. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.306. 2. The criteria have not been met for service connection for a right hip condition. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.306. 3. The criteria have not been met for service connection for a left hip condition. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.306. 4. The criteria have not been met for service connection for a right shoulder condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria have not been met for service connection for a right elbow condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. He died in October 2018, during the pendency of the appeal. The Appellant is the Veteran's surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2015 and August 2015 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2015, the Veteran disagreed with these rating decisions. Before his death, the Veteran had requested the opportunity to present evidence at a Board hearing before a Veterans Law Judge. This hearing did not occur before the Veteran died. In February 2019, the Appellant successfully substituted herself into the appeal. In January 2020, the Appellant's attorney submitted a signed form withdrawing the hearing request. The hearing request has been withdrawn. See 38 C.F.R. §§ 20.703, 20.704. This case was previously before the Board in July 2020 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. § 3.303(d). Certain disabilities, including arthritis, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a right knee condition is denied. Factual Background In a June 2015 private opinion, the physician stated that the Veteran's right knee was aggravated by service and noted that August 1966 x-rays of the knees were negative for pathology while October 1966 records showed posttraumatic degenerative arthritis. In a May 2017 VA examination report, the examiner concluded that the Veteran's right knee condition clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated beyond its normal progression in service. However, this opinion did not address the June 2015 private opinion or the August 1966 and October 1966 x-rays. In a July 2021 addendum opinion, the VA examiner opined that the Veteran's right knee condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that the Veteran's right knee condition was not aggravated beyond its natural progression by his service-connected coronary artery disease, left knee condition, posttraumatic stress disorder (PTSD), or pterygium (eye condition). After reviewing the Veteran's claims file and the Board remand, the examiner wrote that there was "absolutely no evidence" that the pre-existing right knee condition was "in any way" aggravated by the Veteran's heart problems, PTSD, or eye condition. There was no evidence of any kind that the left knee actually caused chronic gait and ambulatory issues and somehow aggravated the right knee. The examiner acknowledged that the Veteran had balance and gait issues, but explained that this was due to the Veteran's advanced age at the time, and his numerous other non-service-connected medical conditions including chronic obstructive pulmonary disease (COPD), back issues, and neuropathy. The examiner concluded by noting that he could not link the Veteran's right knee condition to any of his service-connected conditions without speculation. The examiner also noted that when the Veteran entered active service, he had a "9 year" history of knee pain and had normal x-rays in August 1966. In October 1966, the Veteran was found to have "minimal posttraumatic arthritis." According to the VA examiner, there was no way to determine why or how in a span of three months this change in radiologic findings was noted. However, the examiner opined that the "likelihood [the Veteran] incurred arthritis in 3 months is extremely low as this is a slowly developing process." According to the examiner, the nine years of pain was the actual and more likely timeline of the development of the Veteran's arthritis. Correlation of unnatural aggravation was purely speculative as no inciting injury that would qualify as unnatural aggravation was in the records. The Veteran continued to have knee symptoms in service and these symptoms were simply flare ups of his pre-service condition. Analysis The Board has not overlooked the Veteran's or the Appellant's statements regarding the Veteran's right knee condition. The Veteran and the Appellant are competent (qualified) to report on factual matters of which they had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there is no basis for concluding that a lay person is competent to identify whether the Veteran's preexisting right knee condition was aggravated by his active service, in the absence of specialized training, which in this case they have not established. As such, their lay contentions lack probative value, particularly in comparison to the July 2021 VA addendum opinion. See Jandreau v. Nicholson, supra. While the Board notes that the June 2015 private opinion found that the Veteran's right knee had been aggravated by service, the Board finds that the July 2021 VA addendum opinion is the most probative evidence of record, because the examiner reviewed the claims file and provided a more detailed rationale than the June 2015 private opinion. Id. Based on the above analysis, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and service connection for a right knee condition must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right hip condition is denied. 3. Entitlement to service connection for a left hip condition is denied. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Factual Background In a June 2011 private opinion, the Veteran's physician opined that "while the knee problems may not have caused [the Veteran's] hip disease, in all medical probability, they aggravated it, as they did the problems with his spine." The physician wrote that "the problems [the Veteran] had with his knees either caused or exacerbated his hip and lower back symptoms." The Board notes that no rationale was provided. In a June 2015 private opinion, the Veteran's physician opined that it was at least as likely as not that the Veteran's hip conditions were aggravated by his knee problems. Additionally, the physician noted that the Veteran's knee problems caused increased stress on his right hip, requiring surgery or resulting in aggravation. No rationale was provided. In a July 2021 VA opinion, the examiner opined that the Veteran's hip conditions were less likely than not proximately due to or the result of his service-connected condition. The rationale was that after reviewing the claims file and the Board remand, the examiner determined that there was no objective evidence to show that the Veteran's hip conditions had been caused by his service-connected left knee condition. The examiner noted that the medical literature was controversial regarding secondary causes of musculoskeletal biomechanical changes and was based on empirical evidence, and not on randomly controlled double-blind studies. The examiner reported that observation of the Veteran's gait in numerous documents had been normal. According to medical literature, the evidence available indicated that an injury in one extremity rarely causes 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. After reviewing the Veteran's medical records, he did not show any indication of major displacement of the center of gravity of his body while walking, history of significant shortening of the injured limb, or an abnormal gait pattern that was caused by his knee condition and eventually led to the development of his hip conditions. While the Veteran's gait and balance have been described as abnormal, the Veteran had multiple health issues, to include his advanced age before he died, COPD, back problems, neuropathy, and lower extremity problems, that led to his balance and gait trouble. The Veteran's abnormalities could not be linked to his service-connected left knee in order to draw a secondary connection to his hips. Because of this, the VA examiner concluded that it was less likely than not that the Veteran's hip disorders were a result of his service-connected left knee problem. Additionally, the VA examiner opined that the Veteran's right and left hip conditions clearly and unmistakably existed prior to service, and were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. The rationale was that the Veteran's right and left hips were not aggravated beyond their natural progression by his CAD, left knee condition, PTSD, or eye condition. The examiner wrote that after reviewing the claims file and the Board remand, there was "absolutely no evidence that the hips were in any way aggravated by [the Veteran's] heart problems, PTSD, or eye condition." There was no evidence of any kind that the left knee actually caused chronic gait and ambulatory issues and somehow aggravated the hips. The Veteran had balance and gait issues due to his advanced age, at the time, and his numerous medical problems, to include his COPD, back issues, and neuropathy. The examiner concluded by noting that he could not link the Veteran's bilateral hip conditions to any of his service-connected conditions without speculation. Analysis The Board has not overlooked the Veteran's or the Appellant's statements regarding the Veteran's bilateral hip conditions. The Veteran and the Appellant are competent (qualified) to report on factual matters of which they had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there is no basis for concluding that a lay person is competent to identify whether the Veteran's preexisting hip conditions were aggravated by his active service, in the absence of specialized training, which in this case they have not established. As such, their lay contentions lack probative value, particularly in comparison to the July 2021 VA addendum opinion. See Jandreau v. Nicholson, supra. While the Board notes that the June 2011 and June 2015 private opinions found that the Veteran's hips had been aggravated by his knees, neither opinion contained a rationale. Because of this, they are inadequate and contain no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As a result, the Board finds that the July 2021 VA opinion is the most probative evidence of record, because the examiner reviewed the claims file and provided a detailed rationale. Id. Based on the above analysis, the preponderance of the evidence is against the claims. The benefit-of-the-doubt rule does not apply, and service connection for right and left hip conditions must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for a right shoulder condition, as secondary to a right hip condition is denied. 5. Entitlement to service connection for a right elbow condition, as secondary to a right hip condition is denied. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. The Veteran alleges that his right shoulder and right elbow conditions were the result of a fall caused by his right hip condition. Concerning the Veteran's right shoulder condition, in a July 2021 VA opinion, the examiner reported that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The rationale was that the Veteran's shoulder strain was not proximately due to or the result of his service-connected left knee condition or his right hip condition. After reviewing the claims file and the Board remand, the examiner noted that the medical records showed that the Veteran fell and broke his arm and injured his right shoulder. According to the VA examiner, there was no objective evidence to show that the Veteran's fall, which led to his shoulder injury, was caused by his right hip condition. Concerning the Veteran's right elbow condition, the VA examiner opined that it was less likely than not that the right elbow condition was proximately due to or the result of the Veteran's service-connected left knee condition or his right hip condition. The rationale was that after reviewing the claims file and the Board remand, the examiner reported that the medical records showed that the Veteran fell and broke his arm. There was "no objective evidence to show that [the Veteran's] fall, which led to his elbow fracture, was caused by his hip condition." For both the right shoulder and right elbow condition, the examiner reported that he could not possibly determine why the Veteran fell and sustained his injuries. According to the VA examiner, it would be "complete and pure speculation to assume he fell due to any particular cause without direct observation of the fall and documentation as such. I cannot correlate this injury to the hip without merely guessing." The Board notes that in this decision, service connection for the Veteran's bilateral hips was denied, so service connection as secondary to a hip disorder is unavailable. Analysis The Board has not overlooked the Veteran's or the Appellant's statements regarding the Veteran's right shoulder and elbow conditions. The Veteran and the Appellant are competent (qualified) to report on factual matters of which they had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there is no basis for concluding that a lay person is competent to identify whether the Veteran's shoulder and elbow conditions were secondarily related to his service-connected conditions, in the absence of specialized training, which in this case they have not established. As such, their lay contentions lack probative value, particularly in comparison to the July 2021 VA addendum opinions. See Jandreau v. Nicholson, supra. As a result, the Board finds that the July 2021 VA opinion is the most probative evidence of record, because the examiner reviewed the claims file and provided a detailed rationale. Id. Additionally, the Veteran's right and left hips were denied service connection in this decision. As a result, it is impossible to grant service connection on a secondary basis for his right shoulder and elbow if there is no service-connected disability for them to be related to. 38 C.F.R. §§ 3.310(a). Based on the above analysis, the preponderance of the evidence is against the claims. The benefit-of-the-doubt rule does not apply, and service connection for right shoulder and right elbow conditions must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.