Citation Nr: 21071679 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-26 472 DATE: December 1, 2021 ORDER The claim for service connection for a right hip disability is denied. The claim for service connection for a low back disability, to include as secondary to a service-connected left knee disability, is denied. The claim for service connection for a right knee disability, to include as secondary to a service-connected left knee disability, is denied. FINDINGS OF FACT 1. The Veteran does not have a chronic disability of the right hip. 2. A chronic disability of the lumbar spine, to include degenerative disc disease and spondylolisthesis, was not present in service or until years thereafter and is not etiologically related to any incident of active service and is not caused or aggravated by a service-connected disability. 3. A chronic disability of the right knee was not present in service or until years thereafter and is not etiologically related to any incident of active service and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A chronic low back disability was not incurred in or aggravated by active service and was not proximately due to or the result of a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. A chronic right knee disability was not incurred in or aggravated by active service and was not proximately due to or the result of a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1985 to November 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is associated with the claims file. This case was previously before the Board when it was remanded for additional development in February 2020. At that time, the issues on appeal included entitlement to service connection for a bilateral hearing loss disability. Service connection for bilateral hearing loss was granted in a July 2021 rating decision effective from July 30, 2015. The award of service connection represents a full grant of the benefits sought on appeal. Thus, while the case has returned to the Board for further appellate action, the claim for service connection for bilateral hearing loss is no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of an established service-connected disability. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. 1. Entitlement to service connection for a right hip disability. The Veteran contends that service connection is warranted for a right hip disability as it was incurred secondary to a service-connected left knee disability or the claimed low back disability. The Board concludes that the Veteran does not have a current right hip disability. Service treatment records are entirely negative for any complaints or abnormalities pertaining to the Veteran's right hip. The Veteran testified in October 2019 that he incurred several injuries to his low back and knees during service but did not describe any injuries specific to the right hip. The Board acknowledges that the Veteran engaged in strenuous activities during service related to his duties as a firefighter, to include carrying heavy gear, but there is no lay or medical evidence of a right hip disability during service. The post-service medical evidence is similarly silent for a diagnosis of a chronic disability affecting the right hip, to include arthritis. The Veteran testified that he was seen by a private chiropractor after service for complaints of right hip pain, but recent records and a January 2016 letter from the chiropractor make no mention of right hip complaints. The Veteran has also not received any VA medical treatment for a right hip disability and acknowledged during a December 2016 informal conference with the RO that no healthcare provider had diagnosed a right hip disability. Furthermore, VA examiners in September 2015 and April 2021 concluded that the Veteran did not have a chronic right hip disability. This finding was based on a physical examination of the Veteran, review of the claims file, and in the case of the April 2021 VA examiner, an X-ray of the right hip that was negative for any abnormalities including arthritis. To the extent the Veteran contends that his claimed "right hip" disability is in fact radiculopathy (i.e. neurological impairment of the right lower extremity) associated with a low back disability, as discussed below, service connection is not warranted for a low back disability and service connection on a secondary basis for a disability of the right hip is not possible. 38 C.F.R. § 3.310. Moreover, the record contains no showing of a functional impairment of earning capacity related to the Veteran's claimed right hip disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran has reported experiencing pain in the right hip and difficulty with prolonged sitting or standing. These symptoms were reported to the September 2015 and April 2021 VA examiners, but the examiners did not diagnose a right hip disability, identify any chronic impairment or disability of the hip, or provide any additional detail beyond noting the Veteran's report. The April 2021 VA examiner also concluded that the Veteran's right hip would not result in any functional impairment of earning capacity. In addition, the Veteran has provided no specific testimony or statements further describing the type of impairment he claims to experience beyond these vague reports. He has offered no evidence tending to show that his claimed symptoms rise to a level to affect earning capacity, no statements regarding the severity, frequency, and duration of his symptoms, or any other information with which to establish that his symptoms would cause impaired earning capacity or affect his ability to function under the ordinary conditions of life. Wait v. Wilkie, 33 Vet. App. 8 (2020). The Board has considered the Veteran's statements that he manifests a chronic right hip disability. Although the Veteran is competent to report his symptoms and impairment, as a layperson, he lacks the competency to provide such a diagnosis as this would require medical expertise such as interpretation of diagnostic test results. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record contains no indication, nor has the Veteran contended, that he is relaying a diagnosis of the right hip as provided to him by a medical professional. In summary, the Board finds that the most probative evidence establishes that a chronic right hip disability was not present at any time during the pendency of this appeal. Accordingly, the Board finds that the elements of service connection are not met, and the claim is denied. 2. Entitlement to service connection for a low back disability, to include as secondary to a service-connected left knee disability. The Veteran contends that service connection is warranted for a low back disability as it was incurred due to injuries during active duty service. In the alternative, the Veteran contends that service connection is warranted for his low back disability as secondary to a service-connected left knee disability. The Board finds that while a current disability and in-service injury are present, the preponderance of the evidence weighs against a conclusion that the Veteran's low back disability began during service or is otherwise related to an in-service injury or service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board will first address the Veteran's contentions regarding direct service connection before turning to whether service connection is appropriate on a secondary basis. A current disability and in-service injury are established. The Veteran was diagnosed with degenerative disc disease and spondylolisthesis upon VA examination in April 2021 based on X-ray testing and physical examination. An October 2014 X-ray associated with the Veteran's claim for Social Security Administration (SSA) benefits in October 2014 also demonstrated degenerative changes throughout the lumbar spine. A current disability is therefore present. Service records document several complaints of low back pain beginning in July 1986. A separation examination was not performed at the time of the Veteran's discharge from active duty, presumably as he was granted a hardship discharge, but the Board finds that an in-service injury is also clearly demonstrated. Regarding the third element of service connection, a nexus between the Veteran's lumbar disabilities and active duty, the Board notes that service and post-service records do not indicate such a link. Service records, while documenting some complaints of low back pain, are negative for findings of a lumbar spine disability. The Veteran complained of low back pain in July 1986 after playing ball with a friend's child but was only diagnosed with a lumbosacral strain. The Veteran's spine was later examined in March 1987 as part of an occupational hazard examination; his spine was normal, and he specifically denied any history of recurrent back pain. This evidence therefore indicates the Veteran's July 1986 injury was acute and resolved. The Veteran was seen two months later in May 1987 with new complaints of low back pain following an incident where he moved some furniture. He was diagnosed with mild mechanical low back pain. There is no other reference to low back pain in the Veteran's service records, no radiographs, and no indication that he incurred a chronic lumbar disability. Thus, service records do not document the presence of a chronic lumbar spine disability during service and do not support the claim. There is also no post-service medical evidence of a lumbar spine disability until October 2014, more than 25 years after active duty, when the Veteran's spine was X-rayed in connection with his claim for SSA compensation. At that time, an X-ray of the spine established the presence of lumbar spondylosis, scoliosis, and degenerative changes, i.e. arthritis, throughout the spine. The Veteran testified in October 2019 that he began to see a chiropractor soon after his discharge from active duty and X-rays at that time demonstrated "a crack on each side" of his vertebra. These X-rays are not available for procurement, but the Veteran's chiropractor provided a letter in January 2016 stating that he had been treating the Veteran since the "early 1990s." No reference was made to X-rays and a chronic disability is not mentioned. Thus, while the Veteran maintains that a chronic lumbar spine was identified soon after service, the post-service medical record does not actually demonstrate a chronic lumbar spine disability until several decades after discharge. Similarly, based on the lack of evidence of arthritis for decades after service, the Board cannot conclude that arthritis was present to a compensable degree within one year from the date of separation. Thus, service connection on a presumptive basis for arthritis as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309. The weight of the other competent medical evidence is also against the claim for service connection on a direct basis. No medical professional has provided a medical opinion in support of the claim. In fact, the only medical opinion of record weighs against the claim for service connection. After physically examining the Veteran and reviewing the claims file, the April 2021 VA examiner concluded that the Veteran's lumbar spine disability is not etiologically related to his in-service injuries. The examiner noted the contents of the service records, including the negative examination of the spine in March 1987 and further observed that the in-service injuries were essentially muscle strains. According to the examiner, "[w]hile a muscle strain may cause paraspinal myofascial pain, there is no research or data to support an etiopathogenic relationship between muscle strains and the development of degenerative disc disease or spondylolisthesis. Lastly, current data and research demonstrates that disc degeneration is directly correlated with increasing patient age." The examiner also concluded that the Veteran's scoliosis was not due to active service but was instead due to his other lumbar spine disabilities. This opinion was based on the contents of the service records and the nature of the Veteran's specific lumbar spine disabilities. The Board finds that this medical opinion is supported by a full and well-reasoned rationale and therefore weighs significantly against the claim for service connection. The Board notes that the Veteran submitted the January 2016 letter from his private chiropractor to support his claim for direct service connection. However, the chiropractor does not actually provide an opinion as to the cause of the Veteran's low back disability; rather, the chiropractor notes that the Veteran himself states that his low back problems originated from a military injury in 1986. The Veteran's chiropractor merely recorded this reported history, unenhanced with any medical conclusion, and the January 2016 letter is therefore not considered competent medical evidence in support of the claim. See LeShore v. Brown, 8 Vet. App. 406 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence). Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disability under 38 C.F.R. § 3.309(a). The Veteran testified in October 2019 that he has experienced back pain since service and has therefore reported a continuity of symptoms since active duty. However, the Board finds that this continuity of symptoms is of reduced credibility as it is inconsistent with the contents of the service and post-service records and the Veteran's own post-service activities. The medical evidence of record is not consistent with the Veteran's recent reports of back pain since service. Service records, while documenting two episodes of acute back pain, do not indicate that a chronic disability was incurred during service. After discharge, there is no medical evidence of a chronic back condition until 2014, when the Veteran applied for SSA compensation and an X-ray demonstrated lumbar spondylosis, scoliosis, and degenerative changes of the spine. The Veteran stated that he began chiropractic treatment for back pain soon after service, but the January 2016 letter from his chiropractor only notes treatment beginning sometime in the early 1990s, indicating several years passed before the Veteran was seen for back pain. Additionally, the Veteran has stated that he continued to work as a firefighter after service until 2014 when he retired. The Board finds that this employment history is inconsistent with the Veteran's statements that he experienced chronic back pain since service, particularly as the Veteran wrote in December 2016, January 2017, and May 2017 that firefighting was "extremely grueling" and "physically demanding." In short, the Board finds that the Veteran's reports history of back pain since service is not credible in light of the contents of the service records, the post-service records, and the Veteran's post-service employment history where he continued to work in a physically demanding position for decades. The Board also finds that the objective evidence, including the contents of the various medical records, are more probative than the Veteran's statements provided within the context of a claim for compensation more than 30 years after the events in question. The Board therefore finds that the reports of a continuity of symptoms since service are of reduced credibility and are outweighed by the competent evidence weighing against direct service connection. The Board has also considered the Veteran's contentions regarding direct service connection, but notes that as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of back pain, but finds that his opinion as to the cause of these symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Additionally, as noted above, the Board has found that the Veteran's reports of back pain dating from active service lack credibility. Turning to the Veteran's contentions regarding secondary service connection, the competent evidence of record also weighs against a finding that the Veteran's low back disability was caused or aggravated by his service-connected left knee disability. The Veteran has not provided any evidence in support of the secondary service connection claim, aside from a September 2021 correspondence from his representative citing various studies indicating that an altered gait from the service-connected left knee disability could result in back pain. The Board notes that the information provided by the Veteran's representative is stated in the broadest of terms, is not specific to the Veteran's case (or even his specific lumbar spine conditions) and is focused on the relationship between an altered gait and the development of additional disability. In this case, there is no evidence that the Veteran's left knee is productive of an altered gait. A VA examiner in September 2015 noted that the Veteran had a "mild broad based gait," but this condition was not specifically attributed to the Veteran's service-connected left knee disability. Furthermore, none of the other VA examiners or medical providers have identified any other problems or abnormalities with the Veteran's gait. The argument and citations provided by the Veteran's representative in September 2021 (which appear to be nothing more than standard boilerplate language, not specific to the Veteran's case) are not of a sufficient degree of certainty to support a claim for secondary service connection. Mattern v. West, 12 Vet. App. 222 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). Additionally, as noted above, the Veteran is not competent to provide an opinion linking his low back disability to the service-connected left knee condition. See Barr, supra. The competent evidence of record is therefore against a nexus between the Veteran's low back disability and active duty service. Furthermore, the evidence is against service connection for the claimed disability on a secondary basis. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 3. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. The Veteran contends that service connection is warranted for a right knee disability as it was incurred secondary to the service-connected left knee meniscus tear. In the alternative, the Veteran contends that his right knee disability was incurred directly due to an injury during active service. The question for the Board is whether the Veteran has the current disability claimed, and if so, whether it is proximately due to, the result of, or aggravated beyond its natural progress by the service-connected left knee disability or directly due to service. There is some question as to whether the Veteran has a current right knee disability. VA examinations in September 2015 and April 2017 indicated a diagnosis of a resolved right knee contusion. Similarly, the April 2021 VA examiner diagnosed "right knee arthralgia of undetermined etiology" based on a physical examination and normal X-rays of the right knee. However, as the April 2021 VA examiner was able to provide a diagnosis encompassing the Veteran's consistent complaints of right knee pain and associated loss of function, the Board will resolve any doubt in the Veteran's favor and finds that a current disability is present. Although the Veteran has a current right knee disability, the competent medical evidence of record does not support a link between the condition and the service-connected left knee disability. None of the Veteran's treating physicians has identified a relationship between the Veteran's right knee condition and the service-connected residuals of a left knee meniscus tear. The only evidence in support of the claim originates from a September 2021 correspondence from the Veteran's representative. In its September 2021 written brief presentation, the Veteran's representative cites to several studies noting generally that osteoarthritis in one knee with resulting gait changes can have a negative effect on the oppositive knee. As noted above, the treatise evidence referenced by the representative is not specific to any of the facts of the current case, to include the absence of a finding of arthritis in the service-connected left knee (which is service-connected and rated for a meniscus tear and loss of motion) and the lack of evidence the left knee disability results in abnormal gait. A September 2015 VA examiner noted the Veteran had a mild broad-based gait but did not associate this gait problem with the Veteran's service-connected left knee disability. In any event, the Board finds that the treatise evidence referenced by the Veteran's representative is clearly outweighed by the medical opinion against secondary service connection. The April 2021 VA examiner considered the Veteran's contentions but concluded that the left knee meniscal tear did not cause or aggravate the current right knee disability. The examiner noted that studies indicate some mechanical alternations can occur in ipsilateral adjacent joints due to severe or endstage osteoarthritis. However, there is no data or research to support a causal relationship of chronic contralateral knee pain associated with a previous knee injury, nor would the Veteran's history of left knee trauma have hastened any degenerative process in his right knee. The Board also notes that the Veteran does not have arthritis in the right knee, nor does he manifest endstage or severe arthritis in the service-connected left knee. The April 2021 VA examiner's opinion was accompanied by a well-reasoned and fully explained rationale and is entitled to significant probative weight. It clearly outweighs the vague and generic treatise evidence cited by the Veteran's representative in September 2021. Thus, the competent evidence weighs against service connection on a secondary basis. The Board has also considered whether service connection is warranted for the Veteran's right knee disability on a direct basis due to active service. Service records document one complaint of right knee pain in March 1986 when the Veteran sustained a contusion of the knee. There are no other complaints or treatment related to the right knee in the service records. There is also no evidence of right knee complaints or symptoms after service until July 2015, more than 25 years after discharge, when the Veteran filed his claim for service connection for a right knee disability. The Veteran's treating healthcare providers have never attributed his right knee disability to any incident of active duty service and there is no competent medical evidence in support of the claim for direct service connection. The only medical opinions addressing direct service connection are those of the September 2015 and April 2017 VA examiners who provided opinions against a link between the Veteran's claimed right knee disability and active service. The Veteran has also not reported a clear continuity of symptoms with respect to the right knee since active duty. The competent evidence of record therefore clearly weighs against service connection on a direct basis. (Continued on next page) Finally, the Board has considered the Veteran's statements in support of his claim. The Veteran maintains that his left knee disability caused a right knee disability due to overcompensation and overuse. The Veteran is competent to report the symptoms he experiences but is not competent to provide a nexus opinion regarding the etiology of his disability. The issue in this case is medically complex and requires knowledge of the interaction between multiple joints in the body. The Veteran is similarly not competent to provide an opinion linking his current disability to a singly injury in service. Therefore, it is outside the competence of the Veteran in this case as the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board must therefore conclude that the preponderance of the evidence is against the claim for service connection on a secondary and/or direct basis and the claim is denied. 38 U.S.C. § 5107(b). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.