Citation Nr: 21067218 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-47 243 DATE: November 3, 2021 ORDER Service connection for left hip disorder is denied. Service connection for a back disorder, to include as secondary to left hip disorder, is denied. FINDINGS OF FACT 1. The Veteran's left hip disorder was not caused by, aggravated by, or attributable to, any aspect of service. 2. The Veteran's back disorder was not caused by, aggravated by, or attributable to, any aspect of service. The Veteran's back disorder was not proximately caused by, or aggravated beyond its natural progression by, left hip disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for left hip disorder have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for back disorder have not been met. 8 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from February 1976 to February 1979 including qualification as a paratrooper. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. In March 2021, the Board remanded these matters for additional evidentiary development. The Board finds that there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION The Veteran asserts that his left hip disorder and back disorder were incurred in, aggravated by, or otherwise attributable to, active-duty service. In order to establish service connection on a direct basis, the record must contain competent 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 or aggravated during service. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence Upon induction, the Veteran was found qualified for paratrooper training. Service treatment records (STRs) include the results of a January 1976 enlistment physical examination that is silent for any abnormalities of the hips and spine or mention of any childhood diseases. The Veteran denied any significant past medical history or injuries. Therefore, he is presumed sound at entry. The Veteran's service treatment records (STRs) include 265 pages of magnetic resonance imaging (MRI) or computed tomography (CT) images, with no associated clinical interpretation or the dates and reasons for the imaging. Otherwise, the Veteran's STRs provide no guidance as to the existence of, complaints of, treatment for, or any diagnosis of any bone, joint, or musculoskeletal disorder or symptomatology. A January 1979 discharge physical examination is also silent for any orthopedic or genetic abnormalities including any leg length discrepancies. The Veteran did not fully complete the medical history questionnaire but certified that there was no change in his health since the last examination. Records of private orthopedic care starting in September 2004 include a notation by Dr. T.H. that the Veteran had old Perthes disease, confirmed on contemporary X-ray, and that he was developing pain in the left hip. In May 2008, a private clinician noted the Veteran's report of onset of back and hip pain in 2007 and X-rays showed lumbar disc space narrowing and left hip Perthes deformity and shortening of the left leg. Treatment was conservative for several years that included injections. Later attending clinicians noted that the symptoms onset in 2008. There was no mention of the onset of Perthes or any reference to activities in military service. In March 2010, the Veteran reported for a VA joints examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The examiner noted the Veteran's reports of on and off back and hip pain throughout his military service that included parachute jumps but that he did not seek medical attention during service. The Veteran worked after service as a truck driver. X-ray imaging disclosed lumbarization of the first sacral element indicating transitional vertebrae. This clinician provided current diagnoses of "old print these disease (sic) left hip with mild degenerative changes and deformity of the femoral head" and mild [back] degeneration L5/S1. (The Board interprets this as old Perthes disease as consistent with the rest of the record.) The clinician indicated that the Veteran's current disabilities, as noted above; were not caused by or the result of service. The clinician opined that the previous disease was an injury or rapid growth as an adolescent and was well healed by the time of his entry into service because nothing was noted on the enlistment examination and because he did not report or seek treatment during service. The clinician found that evidence fails to show that the Veteran sought treatment for his spine during active duty. Thus, due to the gap of over 20 years and the Veteran's age, the back disorder medically is one of natural progress and not related to an injury. As to the left hip disorder, the clinician also provided a negative nexus opinion. As a rationale here, the clinician noted that the Veteran's "previous [left hip] disease was sustained during adolescence or rapid growth which was well healed" upon induction. See March 17, 2010 VA Examination, p. 7 In August 2010, a private physical therapist, Ms. S., noted that the Veteran presented with a left leg one inch shorter than the right and that the Veteran reported a past history of Perthes disease of the left hip. This therapist indicated that this was a childhood disease causing deformity and permanent structural changes of the femoral head that many times leads to a leg length discrepancy. The Veteran's resulting asymmetrical gait and posture causes muscle imbalance and arthritic changes in the hip and back if uncorrected into adulthood. The therapist also took note of the Veteran's report of service in the infantry and that the high level of physical activity and stress would have aggravated the back and hip joint. See October 29, 2010 Medical Treatment RecordNon-Government Facility, p. 11. In an August 2010 statement, the Veteran noted his understanding that Perthes disease does not heal on its own and that he was never told that he had one leg shorter than the other, suggesting that it was not noticeable by him during service, and that only recently he was told that his left leg was one inch shorter than the right. He called attention to the rigorous running and jumping in his airborne unit and was encouraged never to complain. In an October 2012 statement, the Veteran reported that he had a small limp as a child but also noted that had he had an abnormality, he would not have been selected for airborne training. In his October 2012 notice of disagreement (NOD), the Veteran conveyed that his Perthes-diseased hip was not incurred in service; however, the Veteran articulated that "activities" in the military aggravated his left hip disorder. The Veteran also reported the difference in length between his left Perthes hip and his right hip. Upon receipt of the Veteran's private medical records from FPN, in a September 12, 2017 progress note, Dr. M., a provider at FPN wrote: [The Veteran] could consider injections, right now I do recommend surgery [ The Veteran] certainly has hip arthritis, bursitis, and Perthes, some of which is congenital but some of which certainly could have been exacerbated by his service as a paratrooper. See May 26, 2020 Medical Treatment Recordon-Government Facility, p. 8. At the February 2020 Board hearing, the Veteran reiterated contentions advanced in his NOD. Additionally, the Veteran reported that he was required to perform extensive running and forced road marches as well as parachute jumps during service. Moreover, the Veteran testified that during these activities, he often lagged behind the rest of his unit and developed an abnormal gait. In April 2021 pursuant to a March 2021 Board remand directive, the Veteran reported for a VA hip and thigh conditions examination. As to the left hip, the clinician provided a current diagnosis of Legg-Calve-Perthes disease. The clinician indicated that the Veteran underwent a left hip total arthroplasty in January 2021. Following an examination, the clinician rendered several etiological opinions. The clinician posited that the Veteran's left hip disorder (Legg-Calve-Perthes disease) was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale, the clinician wrote that. [A]ccording to the medical literature, Legg-Calve-Perthes disease is a childhood disease and usually occurs between the ages of 4 to 10. With Legg-Calve-Perthes disease being a childhood disease, the Veteran's left hip Perthes disease did not occur during military service. Therefore, the Veteran's Legg-Calve-Perthes disease [of the left hip] is less likely than not incurred in or caused by [any incidence of] his military service. The clinician further opined that the Veteran's left hip disorder (Legg-Calve-Perthes disease), which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by in-service injury, event, or illness. As a rationale, the clinician wrote that, [A]ccording to medical literature, after Legg-Calve-Perthes disease has resolved, regular physical activities can be and should be resumed. The Veteran states that he was unaware that he had Legg-Calve-Perthes disease until he was an adult. Therefore, the Veteran's Legg-Calve-Perthes disease [of the left hip] is less likely than not incurred in or caused by any incidence of his military service. As to the reconciliation of the divergent opinions of record (Dr. M.'s opinion, Ms. S. opinion, and the March 2010 VA clinician), upon a recitation of each respective opinion (as articulated above) the clinician opined that, [I]t is not possible to reconcile the three differing opinions regarding the Veteran's left hip [disorder]. The Veteran's orthopedic surgeon and physical therapist [stated] that the Veteran's left hip [disorder] was aggravated by military service. Whereas the VA clinician's opinion from the [March 2010] examination [stated] that the Veteran's left hip [disorder] was not aggravated by his military service. In April 2021 pursuant to a March 2021 Board remand directive, the Veteran reported for a VA thoracolumbar spine conditions examination. The clinician provided a current diagnosis of degenerative disc disease (DDD). The clinician also reported that the Veteran underwent a microdiscectomy, L4-L5 and L5-S1 in 2010 and spinal fusion in 2015. Following an examination, the clinician rendered several etiological opinions. As to service connection on a direct basis, the clinician indicated that the Veteran's back disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale, the clinician noted that there is no documentation/evidence which discloses that the Veteran experience a back injury or back disorder while on active duty. Hence, current DDD was less likely than not incurred in, caused by, or otherwise attributable to any aspect of service. As to service connection on a secondary basis, the clinician indicated that the Veteran's back disorder was less likely than not proximately caused by, or aggravated beyond its natural progression by, Legg-Calve-Perthes disease (left hip disorder). As a rationale, the clinician opined that, [A]ccording to the medical literature, lumbar DDD refers to a condition in which age-related wear and tear on the discs of the lumbar spine cause symptoms of low back pain. The Veteran's lumbar DDD was more likely than not caused by aging. The Board notes that this clinician's opinion contains an obvious error, in which the clinician contradicts herself. In the last sentence, the clinician erroneously provided positive nexus language which sits in opposition to the above-cited negative nexus opinion as to service connection on a secondary basis andperhaps dispositivelyby the rationale itself, in which Legg-Calve-Perthes disease is not even mentioned. The clinician's rationale, which relies upon medical literature, leaves out any language or even suggestion that Veteran's DDD lies in either a causation or aggravation relationship with Legg-Calve-Perthes disease. In August 2021, the Veteran's representative submitted a brief. In pertinent part, this representative restated the Veteran's contentions for entitlement to service connection. Analysis The Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's examination of the patient, the examiner's knowledge, and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. See Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner's opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App, 140 (2003). Here, the Board assigns greater probative weight to the VA clinician's opinions, as discussed above extensively. These clinicians reviewed the entirety of the claims file; considered the Veteran's lay accounts of his medical history; and conducted comprehensive in-person evaluations of both the Veteran's left hip and back. And, with robust emphasis in April 2021, these clinicians supported their negative nexus opinion with evidence (herein lack thereof) and findings discerned medical literature. Unlike the VA clinicians, the physical therapist and the orthopedist's reports did not include discussion of the claims file; limited themselves to selected portions of the Veteran's lay account; and failed to provide either evidence or medical literature base rationales. As such, the Board assigns diminished probative weight. See Owens, 7 Vet. App. 429; Guerrieri, 7 Vet. App. 467; Gabrielson, 7 Vet. App. 36; Sklar, 5 Vet. App, 140. The Veteran is presumed sound at entry on active duty. There is evidence that he experienced Perthes disease as an adolescent but there was no orthopedic abnormality at entry. The Board finds that the Veteran's statement that he had a small limp prior to service warrants less weight because he acknowledged that he did not know that he had a leg length discrepancy until years later and would not have been accepted and accomplished military service and airborne training had he had a disability or functional abnormality. He reported having lagged behind his fellow soldiers during training, developed an abnormal gait, and just pressed on, but he did have the opportunity at the time of discharge to report orthopedic problems for investigation and he did not do so. There is no evidence of restricted duties or any failure to perform satisfactorily. He reported participating in many parachute jumps that is not consistent with an abnormal gait. The weight of evidence is that any feature of Perthes disease was not detected in service and no aggravation manifesting as a decrease in function, gait, or shortened leg was caused by this disorder until many years after service with additional activity and advancing age. The Veteran believes that his left hip disorder was incurred in or aggravated by service. The Veteran also believes that his back disorder was proximately caused by, or aggravated beyond its natural progression by, his left hip disorder. The Board has considered the Veteran's sincere beliefs; however, upon review of the evidence of record, the Veteran does not have the specialized medical knowledge to render an opinion as to etiology, proximate cause, or aggravation. While the physical therapist and orthopedist reflects that clinicians reported positive nexuses to the Veteran, for the reasons stated above, these opinions are of diminished probative value. Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. Therefore, the Veteran's lay contentions do not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). And, for reasons stated above, the Board assigns substantial probative weight to the VA clinicians of record. While the present disability requirement exists for left hip disorder and back disorder, the weight of evidence is against establishing an in-service incurrence or aggravation. As discussed above, the most competent clinical evidence of record fails to disclose that there was any incurrence of left hip disorder or back disorder in service. Saunders, 886 F. 3d 1356. Without a primary service-connected disability (here left hip disorder), secondary service connection cannot be established as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). Consequently, the weight of competent, credible, and consistent evidence is against granting the Veteran's service connection claim and there are no doubts to be resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.