Citation Nr: 21072482 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-10 010 DATE: December 3, 2021 ORDER Entitlement to service connection for low back strain with lumbar radiculopathy is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a bilateral hip disability is remanded. FINDINGS OF FACT 1. The Veteran's back condition first manifested many years after service and has not been medically related to his service, and was not caused or aggravated by the service-connected foot disability. 2. The preponderance of the evidence is against finding that the Veteran's current degenerative joint disease of the right knee began during active service, manifested within one year of separation, or is caused or aggravated by the Veteran's service-connected foot disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back strain with lumbar radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from December 1983 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in February 2020. A transcript of this hearing has been associated with the claims file. The Board notes that this matter was previously before the Board in March 2020, as well as May 2021, at which times the claims were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board finds that there has been substantial compliance with the May 2021 remand directives and as such will proceed with appellate review. 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. Generally, to grant service connection, there must be evidence of these three elements: (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). Additionally, certain chronic diseases, such as arthritis, will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within a presumptive period (usually one year) following active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). Service connection may also be established on a secondary basis for disability which is proximately due to or the result of 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for low back strain with lumbar radiculopathy is denied. The Veteran contends that his low back strain is a result of his service-connected right foot disabilities. In August 2013, the Veteran underwent a VA examination. At such time, the examiner noted that the Veteran had a diagnosis of low back strain with lumbar radiculopathy affecting the bilateral lower extremities. However, the examiner provided no opinion addressing the etiology of the Veteran's low back disability. An etiology opinion was obtained in October 2013. The VA examiner at that time opined that the Veteran's current low back condition was not caused by or a result of the Veteran's service-connected hammertoes of the 4th and 5th toes of the left foot. As rationale, the VA examiner stated that "[f]or an altered gait (from the foot) to affect the lower back would require a 30-degree sway. There is no evidence of this in physical exams." However, the October 2013 VA examiner did not address the aggravation prong of the theory of secondary service connection. As a result, pursuant to the Board's March 2020 remand, an additional VA examination and addendum opinion were obtained. The Veteran underwent another VA examination in August 2020. During the exam, the Veteran reported that he first began experiencing back pain in 2002, which at the time, he attributed to the heavy lifting and physical training of his previous military service. Separately, he noted that he had undergone multiple surgeries for his service-connected right foot condition, and following the surgeries, began walking with a limp that caused further aggravation of his low back pain and disability. The August 2020 VA examiner opined that the Veteran's low back condition was less likely than not proximately due to or the result of the Veteran's service-connected bilateral feet conditions, stating that the Veteran's current diagnosis of the low back is a separate entity from the service-connected hallux rigidus of the toes, and that they are not medically related. The examiner further stated that "medical literature does not support a causal relationship" between the two conditions. An addendum was obtained in June 2021, which addressed both the causation and aggravation prongs of the theory of secondary service connection. The VA examiner opined that "[t]here is no clear evidence from a review of orthopedic literature to suggest that an injury to one joint or the spine would have any significant impact or aggravation on another, opposite, uninjured, joint or limb, unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis, or a shortening of the limb resulting in an altered gait pattern. This level of severity is not supported based on the record review, medical history, or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. Therefore, the low back is less likely than not related to the right foot. Medical evidence does not show significant antalgic gait or nerve damage. The Veteran's lay testimony establishes a chronicity of symptoms, but he is not qualified to ascribe symptoms to a diagnosis or determine an etiology." Upon review of the record, the Board finds that service connection for Veteran's low back condition, to include radiculopathy to the lower extremities, is not warranted. The Board finds the August 2020 and June 2021 examiners' medical opinions to be highly probative because they provided an adequate rationale based on the relevant evidence of record. The examiners indicated that there is no medical evidence that the Veteran's service-connected right foot conditions could cause or aggravate his back condition, noting that the conditions are distinct. Further, the VA examiners both reported that while it is possible for a foot injury to be so severe that it does impact the lumbar spine, typically, an individual would display signs such as an antalgic gait and a sway, which have not been shown to be present in the Veteran. To the extent that the Veteran believes that his condition is linked to his active duty service or was caused or aggravated by his service connected disabilities, principally his right foot disability, the Board notes that he is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his spine conditions is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's low back conditions and his military service and that it is less likely than not that they were caused or aggravated by his service-connected disabilities. In sum, the evidence is against the claim for service connection for a low back disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection, to include as secondary to service-connected right foot hallux rigidus or the left foot hammertoes, must be denied. 38 C.F.R. §§ 3.303, 3.310. 2. Entitlement to service connection for a right knee disability is denied. The Veteran contends that his right knee is a result of his service-connected foot disabilities. Turning to the evidence of record, VA treatment records reflect a diagnosis of degenerative joint disease of the right knee. See August 24, 2020 VA examination report. As such, the first element of service connection, a current disability, has been met. The Veteran's STRs do not contain complaints or treatment for the right knee while in service. Notably, on the Veteran's August 1987 separation examination, the Veteran denied knee problems. See August 1987 separation examination, report of medical history. Post-service treatment records indicate that the Veteran sought treatment for pain and swelling in his right knee, beginning as early as 2005. See December 13, 2005 VA physician's assistant note (where the Veteran reported having "problems" with his right knee, indicating that it has been swelling and painful for the past three days). The Veteran was first afforded a VA examination in August 2020. Regarding the onset of his disability, the Veteran reported that in 1986 he suffered a right knee injury while playing intramural sports; specifically, he ran into a pole while attempting to catch a ball. The Veteran also indicated that he began experiencing increased pain in the right knee from walking with a limp following surgery on his service-connected right foot. The VA examiner opined that the Veteran's right knee degenerative arthritis was less likely than not proximately due to or the result of the Veteran's service-connected feet conditions, stated that the right knee diagnosis was a separate entity from the service-connected hallux rigidus of the right toes and the left foot hammertoes, and they are not medically related. The VA examiner asserted that the medical literature did not support a causal relationship between the disabilities. The VA examiner provided the same rationale for his opinion addressing aggravation of the right knee disability. A clarification opinion was requested from the VA examiner in October 2020. The VA examiner stated in October 2020 that "the current diagnosis of right knee degenerative arthritis is less likely as not aggravated by the service-connected hallux rigidus of the right foot and left foot hammertoes because they are a separate entity with no causal relationships that exist. The current diagnosis is more likely than not related to wear and tear of the right knee. The Veteran's altered gait that is secondary to service-connected conditions of the feet could produce increased pain on the right knee after prolonged activities or use, but it is less likely to provide any structural changes of the right knee." The May 2021 Board remand required an addendum opinion to be obtained to fully address the theory of secondary service connection. These addendum opinions were obtained in June 2021. Once again, the VA examiner stated that the Veteran's right knee condition is less likely than not due to or the result of the Veteran's service-connected condition, as well as that the Veteran's right knee condition was not aggravated beyond its natural progression by his service-connected feet conditions. As rationale for both opinions, the VA examiner stated that "there is 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 major muscle or nerve damage... This level of severity is not support based on the record review, history, or examination. Therefore, the right knee is less likely than not related to the bilateral feet. Medical evidence does not show significant antalgic gait nor muscle or nerve damage. The Veteran's lay testimony establishes a chronicity of symptoms, but he is not qualified to ascribe symptoms to a diagnosis or determine an etiology." The Board finds that the competent evidence of record does not support the conclusion that the Veteran's right knee condition began in service or was otherwise due to service, to include as a result of his service-connected foot disabilities. The Veteran's STRs reflect no injuries or complaints of a right knee condition during his active-duty service. The VA examiners of record also found against a relationship between the Veteran's current right knee disability and his service-connected feet disabilities. The Board finds that this conclusion is consistent with the other competent evidence of record, including the Veteran's competent lay evidence. The first post-service complaint of right knee pain was the December 2005 VA treatment records showing that the Veteran reported right knee pain and swelling. There is simply no competent evidence of record that establishes either an earlier onset of the Veteran's current right knee disability or a relationship between the disability and his active service. Degenerative arthritis is a chronic disease subject to presumptive service connection. As mentioned above, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were 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). In this case, as above, it was not shown or noted during service, and the first evidence of degenerative changes of the knee are long after the Veteran's 1987 separation from service. Therefore, presumptive service connection for a chronic disease is not warranted. The Board acknowledges the Veteran's contention that his right knee condition is related to his active-duty service. However, the Veteran did not present any lay or medical evidence of symptoms or diagnosis between separation from service and 2005, when he first reported onset of right knee pain. The Board notes that the Veteran is competent to report the onset of lay observable symptoms such as pain and accords his statement regarding onset of his current right knee condition significant probative weight. However, while the Veteran contends that his right knee degenerative joint disease is related to service, as a layperson, he does not possess the medical expertise required to provide a nexus opinion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board therefore finds that the preponderance of the evidence indicates that the Veteran's right knee condition was not caused by or incurred in service, nor as a result of his service-connected feet conditions. Service connection is therefore not warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability is remanded. The Veteran contends that his bilateral hip condition is related to his active-duty military service, to include from walking on the side of his feet as a result of an operation he received during service. As such, the Veteran asserts that his bilateral hip disabilities are secondary to his currently service-connected right foot disability. The record reflects that during an August 2013 VA examination, the Veteran's bilateral hip disabilities were diagnosed as bilateral hip bursitis. However, the August 2020, October 2020, and June 2021 VA examiners found that the Veteran does not have a current diagnosis associated with either hip. As a result, the examiners would not provide opinions addressing a nexus between the Veteran's claimed bilateral hip condition and his active-duty service. As a result, the Board finds that further clarification of the Veteran's diagnoses, if any, is necessary as well as an opinion regarding any diagnosed disability's etiology. As such, the claim is remanded to the AOJ for an additional VA examination and opinion to determine the nature and etiology of the Veteran's claimed bilateral hip disorders. (CONTINUED ON NEXT PAGE) The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the etiology of his claimed bilateral hip conditions. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. For each disability diagnosed, the examiner is asked to address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had onset in, or is otherwise related to the Veteran's active-duty military service? (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability was proximately due to or caused by his service-connected right and left foot conditions? (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the such disability was aggravated beyond its natural progression by his service-connected right and left foot conditions? Note that aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability. The VA examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, Associate 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.