Citation Nr: 21067986 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-48 266 DATE: November 8, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to a total rating based on individual unemployability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back disability had its onset during active service; resulted from a disease during active duty; or is a result of an injury incurred or aggravated during active duty. 2. The preponderance of the evidence is against finding that a right hip disability had its onset during active service; resulted from a disease during active duty; or is a result of an injury incurred or aggravated during active duty. 3. The preponderance of the evidence is against finding that a left hip disability had its onset during active service; resulted from a disease during active duty; or is a result of an injury incurred or aggravated during active duty. 4. The preponderance of the evidence is against finding that a neck disability had its onset during active service; resulted from a disease during active duty; or is a result of an injury incurred or aggravated during active duty. 5. The Veteran is not service connected for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for a total rating based on individual unemployability have not been met. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in April 2019 to obtain additional VA treatment records which are now on file. It was also remanded for medical opinions as to whether any of the claimed disabilities were related to inservice injuries even if there was evidence of lack of treatment for many years after service, whether there was a diagnosed disability of the neck, and the significance of possible hip pain being related to a back disability. As will be explained, the Veteran was afforded VA examinations in December 2019 and the examiner rendered opinions which adequately addressed the queries posed, such that the Board's evaluation of the claims is a fully informed one. See generally Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion should be based on a consideration of prior history, examinations, and contain a clear conclusion based on supporting data, and set forth a reasoned medical explanation connecting the two). Moreover, there has been no challenge as to the adequacy of the 2019 examinations or the medical opinions which were rendered. Accordingly, the Board finds that there has been substantial compliance with the 2019 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). 1. Entitlement to service connection for a back disability The Veteran contends that he has chronic disabling residuals of injuries of his cervical spine, low back, and each hip due to injuries sustained during service in a motorcycle accident in August 1975 because when treated at a private hospital he was told that the injuries would cause issues later in life. Alternatively, the disabilities stem from injuries sustained when he was thrown overboard during a surf rescue operation in August 1976. He states the was treated at the Curry General Hospital on each occasion. See Statement in Support of Claim of December 2016. The RO requested postservice treatment records from the Curry General Hospital but was informed that no records were found. The only contemporary records are the Veteran's service personnel records and service treatment records (STRs). Service personnel records include an Abstract of Medical History which notes that the Veteran was treated from August 15, 1975 to August 25, 1975 for injuries sustained in a "motorcycle accident." An August 18, 1975 record shows that he was hospitalized overnight for observation at the Curry County General Hospital for a badly sprained right ankle and knee, and for minor lacerations and bruises. An August 19, 1975 STR stated that following the accident he was hospitalized until August 17, 1975, for abrasions, sprained right ankle and right wrist, and a possible hairline fracture of the right hip. It was noted that his right hip bothered him the most. On examination his hip was somewhat painful. Another August 19, 1975, STR reflects that X-rays on August 15, 1975 of the Veteran's right femur, right leg, pelvis, right elbow, and right wrist were all negative for any fracture. On August 29, 1975 it was noted that he was doing well but his "left" hip bothered him somewhat. He was given light duty and to return to the clinic in one week. Service personnel records show that in July 1976 there was a response to a disabled pleasure craft during which one member of the Coast Guard crew was washed overboard and rescued but there were no serious injuries. None of these service records make any reference to a back injury. In fact, a November 1976 periodic examination as well as the March 1977 examination for discharge from service were negative for any relevant disability. Although the Veteran claimed VA education benefits as early as August 1977, there is no contemporary evidence of any of the claimed disabilities prior to 2014 and he did not claim VA compensation the disabilities until 2017, four decades after service. He was seen at the Alpine Orthopaedics Specialists beginning in 2012 neurologic problems of his wrists and hands. An initial consultation of February 23, 2012, noted his history of labor-intensive work. When seen in April 2014 for left hip pain, his inservice 1975 motorcycle accident was noted. Imaging studies revealed foraminal stenosis at L5 and mild degenerative disc disease at L1-2, and L4-5, and at the thoracolumbar junction. The assessment was left leg radiculopathy. In December 2014 it was that his low back pain and radicular symptoms were due to Grade 1 anterolisthesis of L4 to L5. On VA examination of the Veteran's hips in June 2017 the Veteran's records were reviewed and he reported currently having right hip pain in the setting of significant lumbar spine disease which his orthopedic physician had advised had precipitated his hip pain. Because no medical opinion was rendered in 2017 at to the Veteran's low back, he underwent further examination in December 2019, when he records were reviewed. At that time, he reported that after the motorcycle accident he had continued to have back pain during military service. After spinal stenosis and degenerative disc disease (DDD) were documented he had postservice back surgery. After a physical examination the relevant diagnosis was lumbar degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) with spinal stenosis, and right lower extremity radiculopathy. The examiner opined that the thoracolumbar disability was less likely as not incurred in or caused by inservice injury, event, or illness. The rationale was that although the inservice trauma was documented, there was no mention of back pain until over 20 years later. The inservice periodic examination in 1976 and separation examination in 1977 made no mention of back issues. Also, a SSA 3369 Form filled out in June 2014 indicated that the Veteran had had multiple jobs requiring manual labor, with complaints of back pain. The examiner stated he could not conclude that the inservice trauma caused a permanent injury resulting in disc herniation. Rather, this was more likely associated with aging and, so, not incurred during military service. With respect to continuity, it is not continuity of treatment which is required but continuity of symptomatology. As to this, competent lay evidence must be weighed to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Here, there is no evidence of continuity of treatment by clinical sources. As to the Veteran's recently related reports of continuity of symptoms, i.e., back pain, lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran lacks the education, training, and expertise to opine that a chronic low back disorder had its origin during active service. A lay person is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. § 3.159(a)(1). Likewise, he has not reported having been diagnosed as having a chronic low back disorder during service and, also, there is no diagnosis or opinion of a medical professional that he developed chronic back disability which is of service origin. To the contrary, the only medical opinions as to the etiology of the Veteran's current back disability weighs against his claim. Among other factors that opinion noted that following both inservice accidents subsequent inservice examinations were negative. The Board finds that the unfavorable medical opinion in this case outweighs the Veteran's lay statements of continuity of symptomatology and his lay opinion as to the etiology of his current back disorder. The medical opinion was rendered after a review of the evidence by a medical professional, is consistent with the factual background in this case, and established that the current low back disability is due to aging and years of postservice intensive physical labor. Accordingly, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a back disorder. Thus, there is no doubt to be resolved. 2. Entitlement to service connection for a right hip disability STRs show that following the August 1975 motorcycle accident it was suspected that the Veteran might have a hairline fracture of the right hip because his right hip bothered him the most, and on examination that hip was somewhat painful. However, X-rays of his right femur, right leg, and pelvis were all negative for any fracture. The record does not show that he sustained a right hip injury when he was washed overboard in July 1976. In fact, a November 1976 periodic examination as well as the March 1977 examination for discharge from service were negative for any relevant disability. The Veteran lacks the expertise to opine that a chronic right hip disorder had its origin during active service. Woehlaert, Id. Likewise, he has not reported having been diagnosed as having a chronic right hip disorder during service and, also, there is no diagnosis or opinion of a medical professional that he developed chronic right hip disability which is of service origin. To the contrary, the only medical opinions as to the etiology of the Veteran's current right hip disability weigh against his claim. The opinions noted that following both inservice accidents subsequent inservice examinations were negative. The earliest postservice evidence, lay or clinical, of right hip disability are the records of the Alpine Orthopaedics Specialist in 2014 when X-rays reportedly revealed mild posttraumatic arthritis of the right hip. On VA examination of the Veteran's hips in June 2017 the Veteran's records were reviewed. Current X-rays revealed mild bilateral degenerative changes of the hips, and the diagnosis was osteoarthritis of both hips. At the examination the Veteran reported currently having right hip pain in the setting of significant lumbar spine disease which his orthopedic physician had advised had precipitated his hip pain (in addition to radicular pain involving the right leg). Epidural injections for the lumbar spine disease initially helped but the most recent injection did not help. The examiner opined that it was less likely as not that the current degenerative arthritis of the hips was incurred or caused by the inservice 1975 motorcycle accident. The rationale was that although STRs revealed that the motorcycle accident caused injuries, including a possible hairline right hip fracture, inservice X-rays were negative for any fracture of the right femur and pelvis. Thereafter, the STRs were negative and no abnormality was noted on a November 1976 periodic examination or the March 1977 separation examination. The VA examiner further addressed the postservice private clinical records, noting that a December 2014 record from Alpine Orthopaedic Specialists which demonstrated only radiating low back pain but no hip condition or diagnosis was reported by the private provider and treatment was for lumbar spine disease, not a hip disorder. The VA examiner further stated that the Veteran's report of having been advised that his "hip" symptoms were actually not related to the hip, but rather were a result of his lumbar spine disease, was consistent with the medical records reviewed and the fact that the Veteran reported that his "hip" symptoms resolved subsequent to treatment with epidural injections of the lumbar spine. With respect to the private clinical record indicating posttraumatic arthritis of the right hip, the VA examiner observed that the actual radiology reports in regard to these X-rays were not available for review by the VA examiner. However, the bilateral hip X-rays done in conjunction with the current VA examination showed only mild, bilateral degenerative joint disease, which would not be the etiology of his "hip" symptoms, nor his pain with motion the right hip. Rather, the symptoms and pain appear to be secondary to his lumbar spine disease. The examiner concluded that from all the information available the Veteran's current diagnosis involving his hips was mild, age related arthritis. The examiner explained that "degenerative joint disease/osteoarthritis" most commonly resulted from chronic "wear and tear" which occurred over time as a result of normal physical activities. As noted in "UptoDate", these radiographic changes were frequently found in adults over the age of 30, and here the Veteran was 62 years of age. In fact, advanced age was one of the strongest risk factors associated with osteoarthritis, with studies consistently finding the prevalence of this disease to be less than 0.1 percent in those aged 25 to 34 years old, versus a rate of over 80 percent in people over age 55. There was no clinical evidence to suggest that the Veteran's mild osteoarthritis was causally related to his motorcycle accident of 40+ years ago. Thus, it was less likely than not that the Veteran's current hip condition was incurred in or caused by his active military service. On official examination in December 2019 the Veteran's records were reviewed. The examiner opined that the claimed disabilities of the hips were less likely at not incurred in or caused by inservice injury, event, or illness. The rationale as to the claimed right hip disability was that although a hairline right hip fracture was suspected, i.e., having been noted to be "possible" and there was an inservice complaint of the right hip, the actual X-rays in 1975 did not find DJD of the right hip and the 1977 separation examination was negative. Reference was again made to the 2017 examination which had included the Veteran's having been advised that his "hip" symptoms were not related to his hip but to his lumbar spine disease. The examiner concluded that the right hip problem and pain were associated DJD that manifested after service and was not incurred in service. The 2019 examiner also rendered opinions as to secondary service connection, i.e., as to any relationship, either by causation or aggravation, between the claimed low back disorder and the other claimed disabilities. However, because service connection is not warranted for the claimed low back disability any such relationship is not a basis for granting service connection. The Board finds that the unfavorable medical opinion in this case outweighs the Veteran's lay statements of continuity of symptomatology and his lay opinion as to the etiology of his current right hip disorder. The medical opinion was rendered after a review of the evidence by a medical professional, is consistent with the factual background in this case, and established that the current right hip disability is due to aging and years of postservice intensive physical labor. Accordingly, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a right hip disorder. Thus, there is no doubt to be resolved. 3. Entitlement to service connection for a left hip disability The STRs show that at one point during treatment after his 1975 motorcycle accident the Veteran reported that his "left" hip bothered him somewhat. He is not shown to have sustained a left hip injury when washed overboard in July 1976. Also, the November 1976 periodic examination as well as the March 1977 examination for discharge from service were negative for any relevant disability. The earliest postservice evidence, lay or clinical, of left hip disability are the records of the Alpine Orthopaedics Specialist which show that when seen in 2014 for his left hip his inservice motorcycle accident was noted. However, X-rays found no abnormality of the left hip, and it was found that he had left leg radicular pain from lumbar radiculopathy. Although X-rays at the 2017 VA examination confirmed osteoarthritis of both hips, the examiner stated that the earlier private treatment was not for hip pathology but for radicular low back pain. The VA examiner further stated that the Veteran's report of having been advised that his "hip" symptoms were actually not related to the hip, but rather were a result of his lumbar spine disease, was consistent with the medical records reviewed and the fact that the Veteran reported that his "hip" symptoms resolved subsequent to treatment with epidural injections of the lumbar spine. Moreover, the examiner opined that the mild degenerative joint disease would not be the etiology of his "hip" symptoms. Rather, the symptoms and pain appear to be secondary to his lumbar spine disease. As with the right hip, the examiner concluded that from all the information available the Veteran's current diagnosis of the left hip was mild, age related arthritis. The 2019 examiner similarly rendered a diagnosis of left hip osteoarthritis and opined that it was less likely at not incurred in or caused by inservice injury, event, or illness. The rationale was that consistent with private medical records, the hip symptoms were actually due to lumbar disease, having shown some improvement after lumbar epidural injections. Also, the radiologically documented mild degenerative arthritis would not be the etiology of his hip symptoms. The examiner also observed that the Veteran had multiple postservice jobs which all resulted in progressive trauma and would eventually result in arthritis, which was not documented until 2014. The Board finds that the unfavorable medical opinions in this case outweigh the Veteran's lay statements of continuity of symptomatology and his lay opinion as to the etiology of his current left hip disorder. The medical opinions were rendered after a review of the evidence by a medical professional, are consistent with the factual background in this case, and establish that the current left hip disability is due to aging and years of postservice intensive physical labor. The 2019 examiner also rendered opinions as to secondary service connection, i.e., as to any relationship, either by causation or aggravation, between the claimed low back disorder and the other claimed disabilities. However, because service connection is not warranted for the claimed low back disability any such relationship is not a basis for granting service connection. Accordingly, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a left hip disorder. Thus, there is no doubt to be resolved. 4. Entitlement to service connection for a neck disability The service records are negative for any disability of the neck, including as stemming from any of the two reported inservice injuries, and the November 1976 periodic examination and the March 1977 examination for discharge from service were negative for any neck disability. Even the private clinical records, beginning in 2012 are negative for any neck disability. On official examination in 2019 of the Veteran's cervical spine, when the Veteran's records were reviewed, he related having had neck pain after he left military service. The diagnoses were a cervical strain and cervical degenerative arthritis. Cervical spine X-rays in February 2020 confirmed the diagnoses because they revealed degenerative changes at the C5-6 and C6-7 levels. The examiner opined that the claimed cervical spine disabilities were less likely at not incurred in or caused by inservice injury, event, or illness. The rationale was there was no indication in the STRs of a permanent neck injury. The neck conditions of a cervical strain, degenerative arthritis of the spine, and radiculopathy of the upper right extremity were more likely than not a result of the aging process and not incurred in military service. Therefore, these cervical spine conditions were less likely than not incurred in or caused by the motorcycle accident and/or surf rescue injury during service. The Board finds that the unfavorable medical opinion in this case outweighs the Veteran's lay statements of continuity of symptomatology and his lay opinion as to the etiology of his current cervical spine disorders. The medical opinion was rendered after a review of the evidence by a medical professional, is consistent with the factual background in this case, and establish that the current cervical spine disabilities are due to aging and years of postservice intensive physical labor. As noted, the 2019 examiner also rendered opinions as to secondary service connection, i.e., as to any relationship, either by causation or aggravation, between the claimed low back disorder and the other claimed disabilities. However, because service connection is not warranted for the claimed low back disability any such relationship is not a basis for granting service connection. Accordingly, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a neck disorder. Thus, there is no doubt to be resolved. 5. Entitlement to a TDIU rating Records of the Social Security Administration (SSA) show that the Veteran claimed disability benefits on the basis of carpal tunnel syndrome, pain, and impairment of the hips. He was awarded SSA disability Social Security disability benefits on the basis of primary diagnosis of carpal tunnel syndrome and secondary diagnoses of other and unspecified arthropathies. However, service connection is not in effect for any disability. 38 C.F.R. § 4.16(a) provides, as follows: Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. As can be seen, a prerequisite for a TDIU rating is that a Veteran must be service connected for one or more disabilities. In this case the Veteran is not service connected for any disability. Thus, as a matter of law, a TDIU rating may not be assigned. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.