Citation Nr: 21071440 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-06 899 DATE: November 30, 2021 ORDER Service connection for a low back disorder, to include as secondary to a left knee disorder is denied. Service connection for a bilateral hip disorder, status post-total hip arthroplasties (THP), to include as secondary to a left knee disorder is denied. Service connection for a right knee disorder, to include as secondary to a left knee disorder is denied. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence does not tend to show that the Veteran's current low back disorder manifested to a compensable degree within one year of service, had its onset and has continued since service, was incurred as a result of his service-connected disabilities, or is otherwise etiologically related to service. 2. The preponderance of the competent and probative evidence does not tend to show that the Veteran's current bilateral hip disorder manifested to a compensable degree within one year of service, had its onset and has continued since service, was incurred as a result of his service-connected disabilities, or is otherwise etiologically related to service. 3. The preponderance of the competent and probative evidence does not tend to show that the Veteran's current right knee disorder manifested to a compensable degree within one year of service, had its onset and has continued since service, was incurred as a result of his service-connected disabilities, or is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder due to service or secondary to a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 2. The criteria for service connection for a bilateral hip disorder due to service or secondary to a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 3. The criteria for service connection for a right knee disorder due to service or secondary to a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the claims file. A July 2019 Board decision denied claims for a right knee disorder, a low back disorder, and bilateral hip disorder. The Veteran appealed the 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an order granting a Joint Motion for Partial Remand (JMPR) and vacated the July 2019 decision. The Board remanded the issues in March 2021 and August 2021 for action consistent with the JMPR. It has now returned for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a 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). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for a low back disorder, to include as secondary to a left knee disorder 2. Service connection for a bilateral hip disorder, status post-total hip arthroplasties (THP), to include as secondary to a left knee disorder 3. Service connection for a right knee disorder, to include as secondary to a left knee disorder The Veteran contends that his low back disorder, bilateral hip disorder, right knee disorder are due to his left knee disorder. At his July 2011 DRO hearing, he testified that he began to have problems with his right knee, back, and bilateral hips about fifteen to twenty years after service. At his June 2016 hearing, he testified that he sought treatment for his back within two to three years after he returned to the U.S., and that he underwent hip joint replacements in 2013 and 2014. He asserted that once his left knee went, then the other claimed joints followed because of the impact on his gait. The Board concludes that the preponderance of the evidence is against finding that the Veteran's low back, bilateral hip, or right knee disorders are proximately due to or the result of, or aggravated beyond the natural progression by his now service-connected left knee disorder. 38 U.S.C. §§ 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. Service treatment records contain no entries related to complaints of or treatment for right knee, low back, or bilateral hip complaints. There are a couple of references to the "right" knee that are related to the treatment of the Veteran's left knee, but they were followed with discussion of the left knee, which indicates that reference to the right knee were more than likely erroneous. As noted earlier, the August 1968 Report of Medical Examination for Separation reflects that the spine and lower extremities were assessed as normal. VA records note that the Veteran underwent an Agent Orange Protocol review in May 1989. The examination report does not reflect any notation of complaints related to the right knee, low back, or hips. DJD of the left knee was noted. This is the earliest date documented for the presence of DJD of the left knee. All other extremities were assessed as normal. Post-service treatment records showed that the Veteran was treated for right knee pain in December 1999 by Dr. D.B. The Veteran reported that his work was fairly strenuous, involving climbing over logs much of the day. A physical examination revealed some edema and mild tenderness, but the Veteran had full range of motion. An X-ray of the right knee revealed that the bony structure of the right knee was normal. In a January 2000 treatment record, the Veteran reported that he did not have a history of any specific injury, yet he had experienced right knee pain within the last four to five weeks. A physical examination revealed tenderness over the lateral aspect of the knee, and the private physician opined a probable lateral meniscus tear in the right knee. An August 2003 X-ray of the right knee showed mild to moderate degenerative change and narrowing of the joint space but no bone to bone contact. The Veteran was diagnosed with degenerative changes within the right knee. A December 2005 X-ray of the pelvis and right hip showed no evidence of any significant degenerative arthritis, yet the examiner noted that the pain seemed to be primarily centered on the hip joint. A December 2014 VA examination reflected that x-rays showed degenerative disease of the lumbar spine and right knee. Hip x-rays revealed bilateral hip prosthesis that seemed normal, although the radiologist noted that the left hip appeared to have a small interruption in the normal curvilinear shape of the acetabular portion of the prosthetic device. It was also noted that the Veteran used a wheelchair at the time due to Guillain-Barre syndrome residuals and not primarily for his back disorder. The May 2015 VA examiner opined that the right knee disorder, low back disorder, and bilateral hip disorder were all less likely than not proximately due to or aggravated by the left knee disorder. The rationale was that the contention that one side of the body having pain causes a person to favor or "on load" on the other and therefore causes arthritis or other joint abnormalities on the contralateral sided is often cited. It is biomechanically incorrect and has been disproven in the orthopedic and occupation medicine literature. Arthritis formation would require increase speed and increase sheer forces across the joint, a situation only seen in the paralytic or waddling gait abnormality, which the Veteran does not have. Instead, the examiner opined that the DJD of the right knee, lumbar spine, and bilateral hips was due to the aging process. An April 2021 VA examiner opined that the right knee disorder, low back disorder, and bilateral hip disorder were not proximately due to the left knee disorder. It was explained that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact 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 5 centimeters so that the individuals gait pattern was altered to the extent that there was a clinically obvious Trendelenburg gait. Based on record review, history, or examination, the Veteran did not have this level of severity. It was also noted that 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. Additionally, the record did not document a significant antalgic gait, or severe muscle, or nerve damage that would lead to the left knee condition causing the disorders. A September 2021 VA clinician opined that while the Veteran's lay statements regarding secondary service connection were reviewed and considered, they were not consistent with symptoms of mild left knee degenerative joint disease. Mild DJD did not typically cause gait disturbance and weight shifting. In addition, the record did not document gait disturbance or weight shifting secondary to the left knee DJD. Moreover, there was no objective evidence that supported aggravation of the right knee, low back, and bilateral hip disorder. The evidence did not demonstrate that these disorders were permanently worsened beyond their natural progression, therefore, aggravation was not plausible. After review of the competent and probative evidence, the Board finds that the preponderance of the evidence is against service connection for a right knee, low back, and bilateral hip disorders. Regarding the Veteran's secondary service connection claims, the Board has carefully evaluated the evidence and finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current low back disability, right knee disorder, and bilateral hip disorders are due to or aggravated by his service-connected left knee disorder. The May 2015 and April 2021 VA examiners based their opinions on orthopedic literature and found that based on examination and the record, the Veteran's assertions were not supported. Rather, his disorders were due to aging. Additionally, the September 2021 clinician found that the evidence, including the severity of the left knee disorder, did not show that his low back, right knee, or bilateral hips were aggravated beyond their natural progression. Furthermore, although the Veteran has current chronic diseases of arthritis under 38 C.F.R. § 3.309(a), they were not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. As discussed above, service connection for arthritis may be established on a presumptive theory of entitlement for chronic diseases. However, the probative evidence of record here does not show that symptoms related to the right knee, low back, or bilateral hips manifested to a compensable degree during the year following service. In addition, the record does not support a continuity of symptomatology theory of entitlement as the first reported treatment was in approximately 1999, some 31 years after service. Moreover, the Veteran has not asserted symptomatology on a continual basis following active service. The Veteran's assertion of having received treatment within two to three years of his separation is still outside the one-year window. The evidence of record supports the examiners' findings and opinions and the Board places much weigh on this competent medical evidence. Given the above, the Board finds that the preponderance of the competent and probative evidence is against a finding the Veteran's current low back disorder, bilateral hip disorder, and right knee disorder are related to his active service or secondary to service-connected left knee. The VA opinions, when taken together, are probative evidence and worthy of weight because they are based on an accurate history and are accompanied by well-reasoned rationale as well as supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, there are no contrary medical opinions in the claims file. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). (Continued on the next page) In sum, service connection for right knee, low back, and bilateral hip disorders are not warranted on any basis. As the preponderance of the evidence is against the claims, reasonable doubt does not arise, and the claims are denied. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cruz, K. 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.