Citation Nr: 21070055 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-16 409 DATE: November 22, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a bilateral hip disability is granted. Entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a left knee disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has lumbar spine, bilateral hip, left knee and right ankle disabilities that are related to his service-connected right knee and left knee disabilities. CONCLUSIONS OF LAW 1. The Veteran's low back disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 2. The Veteran's bilateral hip disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 3. The Veteran's right ankle disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 4. The Veteran's left knee disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 1998 and April 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018 the Veteran testified at a hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. In March 2019, the Board remanded these issues and the issue of entitlement to service connection for bilateral hearing loss. In a subsequent September 2020 rating decision, the RO granted service connection for bilateral hearing loss. As a result, this issue is no longer before the Board. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that his current left knee, low back, right ankle and bilateral hip disabilities are secondary to this service-connected right knee and left ankle disabilities. Notably, the Veteran claimed that his service-connected right knee and left ankle disabilities impacted his body mechanics which resulted in his current left knee, low back, right ankle and bilateral hip disabilities. On VA general examination in January 1998, the VA examiner noted that the Veteran reported a medial collateral ligament tear which reportedly occurred in 1988. While the Veteran's service treatment records are negative for complaints or treatments related to a left knee injury, the January 1998 examiner also indicated that the Veteran had had persistent pain and functional impairment of the left knee. An August 2005 private treatment note reported that the Veteran's left knee had been "giving him trouble now for years". The Veteran underwent a VA examination for his left knee disability in February 2015. The examiner opined that it was less likely than not that the Veteran's left knee disability was a result of or aggravated beyond its natural progression by his service-connected right knee and left ankle disabilities as the Veteran's current left knee pathology was more likely than not caused by a twisting injury in the mid-2000's. The Board notes that while, the February 2015 VA examiner attributed the Veteran's current left knee disability to a twisting injury in the mid-2000's, this opinion did not address the January 1998 VA examination, conducted only a year after the Veteran's service separation, which indicated that the Veteran had had persistent pain and functional impairment of the left knee. Regarding the Veteran's claimed right ankle, bilateral hip and low back disabilities, the Board notes that the Veteran underwent a VA examination in December 2015. The VA examiner opined that it was less likely than not that the Veteran's low back, right ankle and bilateral hip disabilities were a result of or aggravated beyond their natural progression by his service-connected right knee and left ankle disabilities. The examiner noted that the Veteran had significantly externally rotated legs that were not caused by the right leg or left ankle disabilities. This would put the Veteran's hips in an awkward position which would put more stress over time on his back. The examiner also noted that the Veteran's foot rested in external rotation at rest and when walking that was not caused by the right leg or left ankle disabilities. The examiner found that this would put abnormal stress on the ankle joint and its ligaments which would cause right ankle pain over time. The examiner noted that both of the Veteran's legs were externally rotated on standing which was not caused by the right leg or left ankle disabilities. This would put more stress over time on his hip joint and was the more likely cause of his hip condition. The examiner also found that the right knee and left ankle disabilities would not be expected to cause any biomechanical abnormalities to cause aggravation of the bilateral hip strain, right ankle condition or low back disabilities. Notably, the VA examiner did not discuss the timing of these disabilities in regards to the Veteran's separation from his service. In a September 2018 correspondence, a private physician opined that the Veteran's service-connected right knee and left ankle disabilities precipitated the musculoskeletal realignment including an altered gait from the ankle up that had produced the Veteran's current low back, left knee, right ankle and bilateral hip disabilities. The physician noted that the Veteran had first sought medical treatment for these conditions "fairly shortly" after leaving the military service. The physician concluded that the Veteran's left knee, low back, right ankle and bilateral hip disabilities were consistent with the etiological progression of his musculoskeletal injuries (service-connected right knee and left ankle) which resulted in alignment issues. The Veteran underwent a VA examination in January 2020. The examiner opined that it was at least as likely as not that the Veteran's claimed conditions were proximately due to or the result of the Veteran's service-connected disability. The examiner noted that the Veteran had seen a significant decline in his physical ability due to his service-connected injuries and each year the physical activities had limitations. The examiner noted that although the Veteran had always had a hard time with his knees, ankles and hips and there was finding not of a hips injury but rather hips sclerosis in aggravation of the condition of the knees, ankles and lumbar spine. It was noted that the current severity of the disabilities was greater than their baselines. The Veteran also underwent a VA examination in March 2020. The examiner opined that it was less likely than not that the Veteran's left hip disability was proximately due to or the result of a service-connected disability. The Veteran's right hip was also less likely than not incurred in or caused by the claimed in-service event, injury or illness as there were no right hip issues during service and the earliest hip complaints occurred in July 2015. The examiner also opined that it was less likely than not that the Veteran's lumbar spine disability was aggravated beyond its natural progression by his right knee or left ankle disabilities as the examiner noted that the Veteran's records demonstrated that he had a normal gait. The examiner also found that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service event, injury or illness as there were no lumbar spine issues during service as there were no complaints during service. The examiner also found that the Veteran's right ankle and right ankle disabilities were also less likely than not incurred in or caused by the claimed in-service event, injury or illness as there were no right hip or right ankle issues during service as there were no complaints during service. The Veteran underwent a VA examination in August 2020. The examiner opined that it was less likely than not that the Veteran's lumbar spine, right ankle, bilateral hip and left knee disabilities were incurred in service as there was no evidence of lumbar spine, right ankle, bilateral hip and left knee disabilities problems in service. It was also less likely than not that the Veteran's lumbar spine, right ankle, bilateral hip and left knee disabilities were caused by his right knee or left ankle as there was no longstanding evidence of abnormal gait in the medical records. The examiner also found that the Veteran's lumbar spine, right ankle, bilateral hip and left knee disabilities were not aggravated beyond their normal progression. In a November 2021 correspondence, the private examiner who provided the September 2018 opinion again noted that after a review of the claims file which included recent orthopedic examinations, it was at least as likely as not that the onset of the Veteran's lumbar spine, bilateral hip, left knee and right ankle disabilities was connected to his military service as the Veteran again first received treatment for these disabilities shortly after his military service and there was no known contravening musculoskeletal insults in the Veteran's history to alter this opinion. The physician also noted that a VA examiner affirmed this perspective and then another VA examiner's opinion was relied upon. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for lumbar spine, bilateral hip, left knee and right ankle disabilities is warranted as the evidence demonstrates that the Veteran has current lumbar spine, bilateral hip, left knee and right ankle disabilities that are proximately due to and aggravated by his service-connected right knee and left ankle disabilities. Initially, the Board notes that there are current diagnoses of lumbar spine, bilateral hip, left knee and right ankle disabilities. Accordingly, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that there are conflicting opinions as to whether the Veteran's current lumbar spine, bilateral hip, left knee and right ankle disabilities are related to service or secondary to his service-connected right knee or left ankle disabilities. As noted above, a December 2015 VA examiner opined that it was less likely than not that the Veteran's low back, right ankle and bilateral hip disabilities were a result of or aggravated beyond their natural progression by his service-connected right knee and left ankle disabilities. However, the VA examiner did not discuss the timing of these disabilities in regards to the Veteran's separation from his service. Conversely, in a September 2018 correspondence, a private physician opined that the Veteran's service-connected right knee and left ankle precipitated the musculoskeletal realignment including an altered gait from the ankle up that had produced the Veteran's current low back, left knee, right ankle and bilateral hip disabilities. Again, the Board remanded these issues in May 2019 for an examination to specifically determine whether it was at least as likely as not that the Veteran's low back, left knee, right ankle and bilateral hip disabilities were related to any incident of the Veteran's active duty service or whether the Veteran had a current low back, left knee, right ankle or bilateral hip disability that is caused or aggravated by his service-connected right knee or left ankle disability. Subsequent to the May 2019 Board remand, a January 2020 VA examination provided positive medical opinions as the VA examiner found that the Veteran's low back, left knee, right ankle and bilateral hip disabilities were permanently aggravated beyond their natural progression by the Veteran's service-connected right knee and left ankle disabilities. However, additional VA examinations were provided in March 2020 and August 2020 provided negative medical opinions as the August 2020 VA examiner specifically found that it was less likely than not that the Veteran's lumbar spine, right ankle, bilateral hip and left knee disabilities were incurred in service and it was also less likely than not that the Veteran's lumbar spine, right ankle, bilateral hip and left knee disabilities were caused by or permanently aggravated by his right knee or left ankle disabilities. Additionally, the private physician who provided the September 2018 positive medical opinion again provided a positive medical opinion in November 2021 as he opined that it was at least as likely as not that the onset of the Veteran's lumbar spine, bilateral hip, left knee and right ankle disabilities was connected to his military service. The physician noted that this opinion was done after a review of the most recent orthopedic examinations. Notably, even after the May 2019 Board remanded these issues with specific instructions to determine the etiologies of the claimed disabilities, there continued to be conflicting medical opinions by multiple medical providers regarding whether it was at least as likely as not that the Veteran's low back, left knee, right ankle and bilateral hip disabilities were related to any incident of the Veteran's active duty service or were caused or aggravated by his service-connected right knee or left ankle disability. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has current lumbar spine, bilateral hip, left knee and right ankle disabilities that are related to service to include as secondary to his service-connected right knee and left ankle disabilities. Additionally, a remand for new VA examinations is not necessary because the evidence of record is sufficient to grant the Veteran's claims, and a remand would only serve to unnecessarily delay final adjudication of the claims. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for lumbar spine, bilateral hip, left knee and right ankle disabilities is granted. See 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.