Citation Nr: 21067811 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 12-30 592 DATE: November 5, 2021 ORDER Entitlement to service connection for a bilateral hip disability, to include as secondary service connection to service-connected bilateral knee disability is denied. Entitlement to service connection for a back disability, to include as secondary service connection to service-connected bilateral knee disability and bilateral hip disability is denied. FINDINGS OF FACT The weight of the evidence is against a finding that the Veteran's back and/or bilateral hip disorders had onset in service, arthritis of the spine or hips did not manifest to a compensable degree within one year of discharge, and the back and bilateral hip disabilities are not shown to be causally or etiologically related to any disease, injury, or incident in service, or a service connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hip disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the United States Navy from June 1959 to January 1962. The appellant in this case is the Veteran's surviving spouse. She has been properly substituted as the Appellant. The Appellant testified before the Board at a hearing in November 2014. A transcript of that hearing has been associated with the claims file. Since then, the Veterans Law Judge (VLJ) who held the hearing has retired. The Appellant was provided the opportunity to testify at a new hearing before a VLJ who would decide the claims by way of an April 2021 letter. As no response was received, the Board will proceed with readjudication. These matters were remanded by the Board in April 2014, April 2016, November 2019 and July 2021, for additional development, which has been completed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a bilateral hip disability 2. Entitlement to service connection for a back disability The appellant contends that the Veteran was entitled to service connection for a bilateral hip disability and a back disorder, to include as secondary to the service-connected bilateral knee disabilities. Specifically, the appellant asserts that as a result of the service-connected bilateral knee disorders the Veteran developed an altered gait which caused him to develop bilateral hip and back disabilities. The service treatment records contain no complaints, history or findings consistent with a hip or back disorder. After service, private and VA treatment records since 2004 show complaints of chronic back and bilateral hip pain. The Veteran's gait was normal. VA treatment records noted lumbar spondylosis at L4-S1 with spondylolisthesis at L4 in October 2005. A VA examiner in March 2007, noted a limping gait reportedly due to a back, and bilateral knee and hip conditions. On VA examination in May 2008, the Veteran complained of constant bilateral hip pain which he attributed to gait changes due to his service connected left knee condition. Reportedly, his hips initially became symptomatic in the mid 1970's. The Veteran denied any hip injury or surgeries for the hips. X-rays, in October 2005 showed mild degenerative changes of both hips. Here, the Veteran was not shown to have arthritis of the back or hips in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Based on the above, the Board must conclude both that chronic back and/or bilateral hip disabilities did not have its onset during service and has not been continuous since that time. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the appellant is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records, which fail to document any related complaints until more than 40 years after discharge from service. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with the back or hips in and since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (b). It is important for the appellant to understand that the post-service record provides significant evidence against the claims. On the question of a nexus between the post-service bilateral hip and back disorders and service or a service-connected disability, the evidence is against the claims. A VA examiner in November 2020, noted that in 2008 the Veteran was diagnosed with degenerative joint disease of both hips. Degenerative joint disease of the hips was considered an aging process disease, due to normal wear and tear. There was also a genetic predilection. Following a review of the claims file, the examiner opined that the Veteran's bilateral hip disability was not caused or aggravated by any other joint condition, to include the bilateral knee disability. In support of the opinion, the examiner cited to the medical literature noting that accepted medical knowledge and practice failed to support a finding that degenerative joint disease transferred from one joint to another. Simple gate accommodation for the bilateral knee disability did not cause degenerative joint disease of the hips. The natural history of degenerative joint disease was a progressive, worsening over time and commonly leading to medical and surgical intervention. Therefore, the Veteran's bilateral hip degenerative joint disease was more likely than not age-related and unrelated to any other condition. Concerning the back, the examiner found that the back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that there was no evidence of a back condition in service or until 2005. To the extent that the on VA examination in 2005 the Veteran reported onset of back symptoms in the 1970s, that would have been at least eight years post-service discharge. Therefore, the Veteran clearly did not have a back condition while in service. Additionally, the onset of degenerative joint disease was initially documented on x-rays in 2005 and reconfirmed in 2007. Degenerative spine disease was considered a natural aging process disease. The imaging study findings of 2005 were age-appropriate at that time. Greater than 50% of men over the age of 50 had evidence of degenerative spine disease, the prevalence increasing substantially per decade thereafter. Therefore, the most likely etiology of the Veteran's degenerative changes of the spine disease, including degenerative joint disease and spondylolisthesis, was wear and tear over time as part of the natural process of aging. Moreover, the examiner noted that it was unlikely that the Veteran had any degenerative changes of the spine in the 70s, given the x-ray findings 30 years later. Therefore, it was less likely than not that the Veteran's degenerative spine disease was due to or incurred as a result of service. The examiner further opined that the back disability was less likely than not caused or aggravated by the Veteran's bilateral knee disability. In support of the opinion, the examiner cited to the medical literature noting that accepted medical knowledge and practice failed to support a finding that degenerative joint disease transferred from one joint to another. Simple gate accommodation for the bilateral knee disability did not cause degenerative joint disease of the spine. The natural history of degenerative joint disease was a progressive, worsening over time and commonly leading to medical and surgical intervention. Degenerative arthritis was not even diagnosed until 40+ years post-service and was age-appropriate at the time of diagnosis. Therefore, the Veteran's bilateral hip degenerative joint disease was more likely than not age-related and unrelated to any other condition. A VA examiner in September 2021, following a review of the claims file, opined that it was less likely than not that the Veteran's back and bilateral hip disabilities were caused or aggravated by Veteran's service connected bilateral knee disorders. In support of the opinion, the examiner cited to the medical literature which found that there was no evidence to suggest that an injury to one joint would have any significant impact or aggravation on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. Use of associated body components as a result of avoiding use of a painful or limited component was a natural compensation. Whether the associated body part was capable of the increased load was a property of the associated part. It was not unusual for two joints to share properties in the same person, but one joint's disease did not "spread" to another or cause damage to it. The condition of the bilateral hips was due to something intrinsic to the bilateral hips and not the bilateral knees. Similarly, the examiner found that the condition of the lumbar spine was due to something intrinsic to the lumbar spine and not the bilateral hips. The Board finds the opinion of the November 2020 and September 2021 VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred back or bilateral hip disabilities as a result of service or the service connected bilateral knee disorders. The examiners' findings were based on a review of the evidence, including the service and post treatment records, and examination reports, which did not substantiate a finding that the Veteran sustained a chronic back and/or hip disabilities in service or as due to the service-connected bilateral knee disorders. The examiners considered the complete record and the contentions from the Veteran and the appellant, and provided an explanation as to why the evidence does not support a finding that his back or bilateral hip disabilities were due to service or a service-connected disability. Additionally, the VA examiners provided reasoning that is supported by the record and the opinions are internally consistent and consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinions are of significant probative value. Significantly, there is no competent medical evidence that supports the claims on a direct or secondary basis. Although the appellant believes that the Veteran acquired his back and bilateral hip disorders in service or as due to his service connected bilateral knee disabilities, and they are certainly competent to report as to the observable symptoms and their history, they cannot self-diagnose because of the medically complex nature of such diagnoses. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. In summary, there is no competent evidence of arthritis of the spine or either hip in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b). Moreover, the most probative and persuasive evidence is against a finding that the Veteran's back and bilateral hip disabilities are related to service or a service-connected disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claims for service connection for back and bilateral hip disabilities. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.