Citation Nr: 21068634 Decision Date: 11/11/21 Archive Date: 11/11/21 DOCKET NO. 15-40 993 DATE: November 11, 2021 ORDER Entitlement to service connection for a left hand 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. FINDINGS OF FACT 1. In-service injury to the left hand resolved without residual disability, other than scarring; arthritis of the left hand did not manifest to a compensable degree within one year of discharge, and the current left hand symptoms are not shown to be causally or etiologically related to the in-service left hand injury. 2. The weight of the evidence is against a finding that the Veteran's bilateral hip disorders had onset in service, arthritis of the hip did not manifest to a compensable degree within one year of discharge, and the right and left 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 left hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1983 to May 2009. These matters were remanded by the Board in October 2018 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, 381 F.3d at 1167; 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. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. 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 left hand disability The Veteran seeks service connection for a left hand disability as residuals of a dog bite. Initially, the Board notes that an October 2020 rating decision granted service connection for scars of left hand as residuals of an in-service left hand dog bite, and scarring of left lower chest and assigned a noncompensable disability rating. The Veteran has not appealed the disability rating for his left hand scars. As such, this issue will not be addressed in this decision. The service treatment records show that in the Veteran was treated for a puncture wound on his left due to a dog bite in August 1985. His wound was sutured and he was given limited duty for use of his left hand. A few days later sutures were removed and the wound was debrided and cleansed, it was noted that the condition was resolving. The condition appears to have resolved with treatment and the remainder of the service and post-service treatment records fail to document any additional complaints or treatment for residuals of a left hand dog bite. Here, the Veteran was not shown to have arthritis of the left hand 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 left hand disability 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 Veteran 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 a year 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 left hand in and since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (b). It is important for the Veteran to understand that the post-service record provides significant evidence against the claim. On the question of a nexus between the claimed left hand disability and service, the evidence is against the claim. A VA examiner in February 2020, noted an assessment of degenerative arthritis, noting that during military service while working as a dog handler he was bitten on the left hand. He had multiple puncture wounds and a laceration that required 13 sutures in the dorsum of the left hand at the base of his 4th digit. The Veteran denied any residuals. Although he occasionally experienced numbness, he did not attribute these symptoms to his in-service injury. The examiner found no functional disability of the hand other than the residual scarring. A VA examiner in September 2021, noted that the Veteran was bitten by dog on left hand during service and the injury required 13 stitches. The Veteran reported numbness, pain and intolerance to cold temperature. He reported that his hand strength was weakened due to numbness. There was pain with repeated use over time and reduced motion. He denied any flare-ups. The examiner noted decreased sensation to all fingers of the left hand. The Veteran reported that the condition interfered with his work in security forces due to weakened grasp at times due to pain and numbness. He also experienced difficulty in more forceful activities like fixing car. Examination failed to show any evidence of weakened grip. Following a review of the claims file and an examination of the Veteran, the examiner opined that the claimed left hand disability was less likely than not caused or incurred in service. The examiner based the opinion on the fact that there was no evidence of a chronic diagnosis associated with the in-service dog bite and there was no radiographic evidence of arthritis. The examiner indicated that the Veteran's left hand symptoms were related to neuropathy of left hand. The Board finds the opinion of the September 2021 VA examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran currently suffers from residuals of a left hand dog bite, other than the service-connected scarring. The examiner's findings were based on a review of the evidence, including the service and post treatment records, and examination reports. The examiner considered the complete record and the contentions from the Veteran, and provided an explanation as to why the evidence does not support a finding that his claimed left hand disability was due to service or a service-connected disability. Additionally, the VA examiner provided reasoning that is supported by the record and the opinion is 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 opinion is of significant probative value. Significantly, the examiner in 2021 attributed the Veteran's reported left hand weakness, pain and numbness to neuropathy unrelated to the in-service dog bite. Notably, there is no competent medical evidence that supports the claim. Although the Veteran is certainly competent to report as to the observable symptoms and their history, he cannot self-diagnose because of the medically complex nature of such diagnosis. 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 left hand 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 claimed left hand disability is related to service, to include the dog bite documented in the service treatment records. 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 claim, it must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56. 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left hip disability The Veteran seeks service connection for bilateral hip disorders. The service treatment records show that in May 2008, the Veteran was seen for chronic lateral 1eft hip pain worse after running. No trauma was reported. A July 2008 treatment report noted right hip sprain, hamstring insertion. The clinician reported SI joint pain some hip pain with films showing problems with SI joint. No bony abnormalities were noted. Subsequent treatment records documents complaints of hip pain. In January 2009, the Veteran's hip was examined and the clinician noted no gross abnormalities. There was no redness, warmth, swelling, ecchymosis, overlying skin changes or tenderness to palpation. He exhibited good range of motion with full abduction, adduction, internal rotation, external rotation, flexion and extension. Strength was 5/5 with no objective evidence of pain with movement. Imaging studies of the right hip showed no acute bony process. Treatment notes in 2009, noted lower back pain with radicular symptoms. In April 2009, the Veteran was seen for reportedly having injured his right hip and back. After service, April 2019 bilateral hip imaging studies were unremarkable for both hips. Based on the evidence noted above, the Board finds that a chronic right or left hip disability was not shown in service, and arthritis was not shown in service or within one year following discharge from service. Accordingly, competent evidence linking the current disabilities to service or a service-connected disability is needed to substantiate the claims. On VA examination in May 2013, the Veteran reported injuring his back in 2006. He endorsed back pain with radiation to right hip and right lower extremity. The Veteran had normal objective findings of both hips. Abduction was to 45 degrees, adduction was to 20 degrees, and external rotation was to 60 degrees. There was no additional limitation in motion of the hip and thigh following repetitive-use testing, any functional loss and/or functional impairment. His right hip discomfort was determined to be secondary to his right L5/S1 radiculopathy. There was no evidence of significant flare-ups, symptoms, fatigue, or change in objective findings after repetitive activity. The Veteran's hip and/or thigh condition had no impact on his ability to work. On VA examination in February 2020, the Veteran reported pain in the right buttock region. He stated that it extended from the lower back to the right ankle. The hip on the left side was not painful. He denied stiffness or limited motion. The right hip was painful to lay on. He had some difficulty with walking quickly. While the examiner noted an assessment of osteoarthritis of both hips with right trochanteric pain syndrome, he also reported that imaging studies failed to document degenerative or traumatic arthritis. The Veteran's hip pain was radicular pain from his back and trochanteric bursitis, likely due to positioning. The examiner's findings regarding the presence of arthritis of either hip are contradictory. In an addendum opinion report in November 2020, a VA examiner opined that it was less likely than not that the Veteran had a left hip disability and right hip osteoarthritis that were incurred in or caused by hip strain during service. The examiner indicated that a right hip radiograph in 2008 likely incorrectly noted, likely due to a voice transcription error, where it states, that the right hip demonstrated increased sclerosis of the superolateral joint without spurring or narrowing, as this statement lacked sound construct. Specifically, the "without and is spurring or narrowing" was illogical, and likely should have been "without any spurring or narrowing". This was further supported by the fact that 2019 imaging studies of both hips were unremarkable and specifically noted no bony findings. There was also contradiction in February 2020 VA examination report in that in item 1b the examiner recorded a diagnosis of bilateral hip osteoarthritis, but in the report also noted no evidence of degenerative or traumatic arthritis. Accordingly, the examiner opined that the diagnosis of bilateral hip osteoarthritis was inadequate and therefore causation could not be entertained. Moreover, no left hip disability was noted on examination. With respect to hip trochanteric bursitis, the examiner opined that it was less likely than not that the condition was caused by the hip strain during service. The examiner noted that right hip pain was reported repeatedly from 2006 through separation, but the etiology was radicular, and not associated with the hip itself. There was no objective evidence to support an in-service trauma resulting in trochanteric bursitis. In August 2021, a VA examiner, following a review of the claims file, opined that the right and left hip disabilities were less likely than not caused or aggravated by the Veteran's service connected back disability. The Veteran's bilateral hip pain and limited motion was intrinsic to the hip and not secondary to the lumbar spine. There was no documented evidence to support service connected lumbar spine degenerative disc disease of sufficient severity to result in significant altered gait or other anatomical changes to result in hip pain, including limited motion. There were multiple references in the claims folder of normal gait, stance and posture. While the most recent back DBQ noted muscle spasms and guarding with abnormal gait, there was no description of the abnormal gait and no further evidence in claims file to substantiate altered gait. There was no documented evidence of significant or prolonged periods of altered gait related to the lumbar spine condition, or flare ups, exacerbations or increased treatment of the hip due to the back disability. There was no evidence of aggravation beyond natural progression identified. The Board finds the opinion of the November 2020 and August 2021 VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred bilateral hip disabilities as a result of service or the service connected back disorder. 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 right or left hip disability in service or as due to the service-connected back disability. The examiners considered the complete record and the contentions from the Veteran, and provided an explanation as to why the evidence does not support a finding that his 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, 22 Vet. App. at 295. Accordingly, the opinion is of significant probative value. Significantly, there is no competent medical evidence that supports the claims on a direct or secondary basis. Although the Veteran sincerely believes that he acquired his right and left hip disorders in service or as due to his service connected back disability, and he is certainly competent to report as to the observable symptoms he experiences and their history, he cannot self-diagnose because of the medically complex nature of such a diagnosis. See Layno, supra; Buchanan, supra; Jandreau, supra. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to service or his service-connected back disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). While the Board acknowledges the Veteran's right and left hip complaints since service, such symptoms have been attributed to the already service-connected radiculopathy of the right and left lower extremities. In summary, there is no competent evidence of arthritis of either hip in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, supra. Moreover, the most probative and persuasive evidence is against a finding that the Veteran's 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 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.