Citation Nr: 21072690 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-02 729 DATE: December 6, 2021 ORDER Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disorders, is denied. Entitlement to service connection for a right hip disability, to include as secondary to service-connected bilateral knee disorders, is denied. FINDINGS OF FACT 1. The Veteran's scoliosis is a congenital defect, and an additional disability was not superimposed on the Veteran's scoliosis during service. 2. The Veteran's right hip condition neither began during or was otherwise caused by her military service, to include any exposures therein, and was neither caused nor aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disorders, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 4.9; VAOPGCPREC 82-90 (July 18, 1990). 2. The criteria for entitlement to service connection for a right hip disability, to include as secondary to service-connected bilateral knee disorders, have not been met. 38 U.S.C. §§ 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 on active duty from September 1984 to October 1984 and from May 1985 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in March 2019, June 2020, and July 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). 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 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. 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; 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). 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disorders The Veteran contends that she has a current low back disorder, manifested by back pain, that is due to her active service, or was otherwise caused or aggravated by her service-connected knee disabilities. In this regard, she contends that her back disorder had its onset in service, and she contends that her knee disabilities caused extra stress on her back. The Board notes that congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O'Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395; VAOGC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty). Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O'Bryan, 771 F.3d at 1380; VAOPGCPREC 82-90 (July 1990) (holding that "service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin"). Congenital defects are by definition static in nature. O'Bryan, 771 F.3d at 1380 (observing that a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111); VAOPGCPREC 67-90 ("congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration"). By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O'Bryan, 771 F.3d at 1380 ("[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect," even if it ceases to progress); VAOPGCPREC 67-90 ("A disease... even one which is hereditary in origin, is usually capable of improvement or deterioration"). Thus, the litmus test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is capable of changing. See id. If the disorder may improve or deteriorate, then it is not a congenital defect, and consequently is eligible for service connection notwithstanding its congenital or hereditary nature. Id. If the congenital condition is a "defect" (i.e., a structural or inherent abnormality which is more or less static in nature), then service connection may not be awarded unless such a defect is subjected in service to a superimposed disease or injury that results in additional disability. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). The Veteran underwent an examination in September 2001, at which time she was diagnosed with a history of lumbosacral spondylitis. Further, a private pain consultation in March 2002 also noted her complaints of back pain since service, and after noting her 1994 work injury and the 1997 motor vehicle accident, opined that a leg length discrepancy needs to be evaluated because it may be contributing to low back pain. In an April 2005 examination, the Veteran complained of back pain, specifically stating that this developed during basic training. The examiner stated that because her lumbar spine problem is relatively mild, early in its development, and seemingly unrelated to gait abnormalities, there would appear to be no connection between the Veteran's knee disabilities and her back condition. In May 2003, the Veteran underwent another examination and was first diagnosed with mild scoliosis secondary to the left leg being slightly shorter than the right. In a July 2016 medical examination, the Veteran was diagnosed with minimal dextrorotoscoliosis with slight increased narrowing at L-5 and no subluxation, and she was noted to have congenital scoliosis curvature of the spine. The examiner opined it was less likely than not the Veteran's claimed back disability was secondary to her bilateral knee condition. The examiner stated that the Veteran's gait was consistently documented as normal on physical therapy and examinations dating back to 2003 in the records so there is no medical evidence of any unusual wear producing stressor due to the bilateral knee condition. The Veteran had an examination for her back condition in January 2020. The Veteran had a diagnosis of low back pain with radiologic evidence of congenital dextro-levo-rotoscoliosis cervical/lumbar. The Veteran reported that she hurt her back in basic training carrying her pack and a box of bullets that she was told to put at the bottom of her pack increasing the weight of the pack and that she only weighed about 115 lbs. during basic training. Additionally, the Veteran reported she was in a motor vehicle accident in 1997, which resulted in a pinched nerve in her neck, and she had headaches from then until she had surgery in 2018. The examiner opined that it was less likely than not that the Veteran's spine disorder was proximately due to or the result of her bilateral knee disabilities. The examiner stated that while there is documentation of treatment for thoracic back pain in June 1985, this was one month after being on active duty and there was no documented injury causing the back pain. The examiner noted that the only documented injury, which was significant trauma, is her injury at her workplace in 1994 and the motor vehicle accident in 1997, and that in between 1986 and 1997 there is no medical evidence of any ongoing chronic back pain. Furthermore, the examiner stated that the available medical evidence does not show that the Veteran had complaints or made any claims of chronic back pain until 1999, after her motor vehicle accident in 1997, and that although the Veteran claims that her back pain is due to her bilateral knee condition, the evidence does not show any significant damage that should lead to a gait abnormality, and even as such, still would not cause any significant back condition. The examiner concluded that the medical evidence clearly shows that the Veteran's back condition is more likely than not due to her motor vehicle accident in 1997. Additionally, the examiner noted that since the x-rays of her knees have always been normal except for a high riding patella noted in 2019 and the MRI of her left knee was normal in 2011, then her bilateral knee condition is not significant enough to have aggravated her back condition beyond its normal progression. In an addendum medical opinion from July 2020, the examiner opined that the Veteran's diagnosis of congenital scoliosis constitutes a congenital defect and is less likely than not incurred in service. The examiner stated that the contention that her knee conditions caused extra stress on her back is not supported by x-ray evidence as there has been no change in the mild to minimal scoliosis from the time it was detected in 1985 to the most recent x-ray in 2020. The examiner further stated that the Veteran's service treatment records note complaints for left side thoracic back pain in June 1985 and that the Veteran reported recurrent back pain during the Medical Evaluation Board in May 1986. However, the examiner stated that her back showed no abnormalities during clinical evaluation and the Veteran's enlistment examinations were silent for any back conditions. Additionally, the examiner stated that the "Veteran's scoliosis is relative to the lumbar spine and not the thoracic." The examiner further noted that the Veteran was diagnosed with mild scoliosis in May 2003 secondary to her left leg being slightly shorter than her right. However, the examiner stated that "a 9mm leg difference is thought to be functional rather than anatomical as a discrepancy this small does not usually contribute to back pain. A leg discrepancy less than 2cm is considered not clinically significant. There is no radiological evidence to support leg length discrepancy." An addendum medical opinion was obtained regarding the Veteran's claimed back disability in September 2021. The examiner stated that the Veteran's congenital scoliosis is a spinal deformity in which a sideways curvature of the spine is caused by a defect present at birth. The examiner further opined that after a review of the available medical evidence, the record is silent for supportive documentation of disease or injury superimposed on the Veteran's congenital scoliosis during service. The Board finds the September 2021 examiner's opinion to be probative. The September 2021 examiner's opinion is probative because the examiner provided an adequate rationale based on the evidence of record. Furthermore, there are no medical opinions of record contrary to that of the September 2021 examiner. While the Board finds that the Veteran is competent to describe her subjective symptoms, ascertaining whether she suffered from an additional disability due to aggravation of her scoliosis congenital defect during her active military service because of a superimposed disease or injury requires special medical training that the Veteran does not have. It is a determination that is complex and "medical in nature" and not capable of lay observation alone. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Accordingly, lay statements alone are not sufficient to determine whether the Veteran suffered from an additional disability due to aggravation of her scoliosis congenital defect during her active military service because of a superimposed disease or injury. Alternatively, the Board finds as competent and credible the opinion provided by the September 2021 examiner, including the finding that the Veteran's scoliosis is a congenital defect, and the Veteran does not suffer from an additional disability of this defect during her active military service because of a superimposed disease or injury. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Thus, the Board finds that the Veteran's scoliosis is a congenital defect, and the Veteran does not suffer from an additional disability of this defect during her active military service because of a superimposed disease or injury. Accordingly, service connection for scoliosis is not warranted and the claim is denied. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009). 2. Entitlement to service connection for a right hip disability, to include as secondary to service-connected bilateral knee disorders The Veteran contends that she has a right hip disorder that is caused or aggravated by her service-connected knee disorders. A comprehensive initial evaluation from the Paducah Pain Management Center from January 2010 noted that she complained of hip pain beginning in 1998, after her motor vehicle accident, and that her back pain radiated into her hips. The Veteran reported having hip pain and that her hip began "popping" while in service at a November 1999 examination. In an April 2005 examination, she reported hip pain, and the examiner stated her complaints were diffuse and poorly localized, but also that she reported that such pain was related to her back and knee disorders. The examiner stated that because there is no hip pathology specifically diagnosed, there is no apparent relation between the Veteran's knee conditions and the development of hip complaints. In a July 2016 examination, the examiner noted that the Veteran has congenital scoliosis curvature of the spine with a leg length discrepancy, which is the most likely cause of the Veteran's hip complaints. The Veteran had an examination for her right hip condition in January 2020. The examiner opined that it was less likely than not that the Veteran's right hip condition was proximately due to or the result of her bilateral knee disorder. The examiner stated that, after a review of the available medical evidence, the evidence does not support the claim that the Veteran's hip condition was incurred in or due to her military service. The examiner noted that without any specific injury then this would not explain the chronicity of the Veteran's hip pain, and that the only documented injury, which was significant trauma is her injury at her workplace in 1994 and a motor vehicle accident in 1997. The examiner noted that in between 1986 and 1997 there is no medical evidence of any ongoing chronic hip pain, and the available medical evidence does not show that the Veteran had made any claims of chronic hip pain until 1999, after her motor vehicle accident in 1997. The examiner stated that even though the Veteran claims that her hip pain is due to her bilateral knee conditions, the evidence on the Veteran's knee condition does not show any significant damage that should lead to a gait abnormality, whereas only severe gait abnormality would lead to any specific hip condition. Also, the examiner noted that since the x-rays of her bilateral knees have always been normal except for a high riding patella noted in 2019 and the MRI of her left knee was normal in 2011, then her bilateral knee condition is not significant enough to have aggravated her claimed hip condition beyond its normal progression. Additionally, the examiner stated that all available right hip and bilateral hip x-rays from April 1995 forward have been normal, and that in January 2016 a pelvic x-ray did indicate a slight acetabular rim sclerosis, which again, her bilateral knee condition is not significant enough to have aggravated her claimed hip condition beyond its normal progression. In an addendum medical opinion from July 2020, the examiner stated that the contention that the Veteran's purported hip disorder was not caused or aggravated by the Veteran's congenital scoliosis. An addendum medical opinion was obtained regarding the Veteran's claimed right hip disability in September 2021. The examiner opined that the Veteran's right hip condition was more likely than not due to normal wear and tear that appears with age, genetics, lifestyle, and prior injury and is not proximately due to or aggravated by the Veteran's scoliosis. The examiner stated that the Veteran reported in April 2020 that she did not hurt her hips during military service. The examiner noted that the Veteran purported her bilateral knee condition is causing extra work on her hips. However, the examiner noted that the Veteran's gait is steady with good mechanic, there is no favoring, she steps toes, heels in tandem and bilateral knee raises are with good mechanics. The examiner further noted that the Veteran was involved in a motor vehicle accident in 1997 which could have caused trauma to the right hip joint. The examiner stated that the Veteran had no complaints or claims, no medical evidence, no chronicity with right hip pain until complaints in 1999, and that an April 2015 right hip x-ray was negative, and a January 2016 pelvic x-ray noted slight rim sclerosis, most likely normal wear for age and physical use. Additionally, the examiner noted a March 2017 right hip x-ray, which indicated persistent mild acetabular rim sclerosis, and that this is a sign of osteoarthritis. The examiner stated that prior injury certainly plays a part in the development of arthritis, and the development of osteoarthritis is typically seen to begin between the ages of 40 and 50. Upon review of the record, the Board finds that service connection for a right hip condition is not warranted. The Board finds the January 2020, July 2020, and September 2021 examiner's medical opinions to be highly probative because they provided an adequate rationale based on the relevant evidence of record. The examiners indicated that the evidence did not indicate that the Veteran's right hip condition was caused by her active service or was caused or aggravated by her knee or back conditions. Specifically, the September 2021 examiner opined that the Veteran's right hip condition was more likely than not due to normal wear and tear. To the extent that the Veteran believes that her right hip condition is linked to her active service or was caused or aggravated by her service-connected disabilities, the Board notes that she is competent to provide testimony concerning factual matters of which she has fight-hand knowledge and experiences through her senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of her right hip condition 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, her 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 right hip condition and her military service and that it is less likely than not that her right hip condition was caused or aggravated by her service-connected disabilities. In sum, the evidence preponderates against the claim for service connection for a right hip disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a right hip disability must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.