Citation Nr: 21076631 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 13-30 638 DATE: December 27, 2021 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The Veteran's right hip disability did not manifest in service and arthritis of the right hip did not manifest within one year of separation from service. The disability is not otherwise related to service. 2. The Veteran's left hip disability did not manifest in service and arthritis of the left hip did not manifest within one year of separation from service. The disability is not otherwise related to service. 3. The Veteran's right knee disability did not manifest in service and arthritis of the right knee did not manifest within one year of separation from service. The disability is not otherwise related to service. 4. The Veteran's left knee disability did not manifest in service and arthritis of the left knee did not manifest within one year of separation from service. The disability is not otherwise related to service. 5. The Veteran's right ankle disability did not manifest in service and arthritis of the right ankle did not manifest within one year of separation from service. The disability is not otherwise related to service. 6. The Veteran's left ankle disability did not manifest in service and arthritis of the left ankle did not manifest within one year of separation from service. The disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who served on active duty from February 1971 to February 1973, appeals a January 2011 rating decision. The issues were remanded by the Board to the Agency of Original Jurisdiction (AOJ) in June 2015, March 2019 and February 2021, to obtain adequate examinations and treatment records and to notify the Veteran that he may submit additional evidence. It has been returned to the Board. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases such as arthritis will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 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). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996) Entitlement to service connection for bilateral hip, knee and ankle disabilities is denied. The Veteran urges that he has bilateral hip, knee and ankle disabilities as the result of lifting and carrying heavy equipment and munitions in service. See, e.g., Dr. Ortiz Valentin's June 2010 report. As there is current disability of bilateral degenerative joint disease of the hips, knees and ankles as well as bilateral Achilles tendon enthesopathy, as demonstrated in August 2021 VA examination reports, the question for the Board is whether any such disability manifested in service or within the applicable presumptive period or whether bilateral hip, knee or ankle disability is otherwise related to service. We find that the preponderance of the evidence is against finding in-service incurrence or aggravation of a disease or injury and is also against finding a nexus between the current disabilities and service. As explained herein, the current disabilities first manifested many years following service, beyond any applicable presumptive period, and the weight of the competent and credible evidence is against finding they are related to the alleged events in service. The matters were most recently remanded in February 2021 largely based on the Board's finding that the then-current VA examination record was inadequate. It was noted that there had not been compliance with prior Board remand directives to obtain a VA examination and opinion as to the etiology of these disabilities that comments on the positive 2010 nexus opinion from N. A. Ortiz Valentin, M.D. Also, a November 2010 VA joints examination provided no etiology opinion. Thus, the prior VA examinations of record, including those dated in November 2010 and February 2020, are not for consideration in terms of determining the etiology of these conditions. As observed in the 2015 Board remand, Dr. Ortiz noted in her June 2010 statement that the Veteran had a history of back problems. She related that his work during service involved lifting and carrying heavy equipment. She stated that the continuous bending and lifting put a lot of strain on his back and also caused degenerative changes, in pertinent part, in the hips, knees ankles and feet. Dr. Ortiz concluded it was more probable than not that the Veteran's leg problems and arthritis were service-connected secondary to his duties in service. The Board in 2015 noted that Dr. Ortiz failed to discuss the Veteran's post service history in construction or age upon diagnosis and failed to provide clinical treatment records, and noted there was no etiology opinion in the VA examination. Historically, the service treatment (STRs) records are silent for hip, knee or ankle complaints. The February 1973 separation examination disclosed that the musculoskeletal system, lower extremities and feet were normal. Dr. Ortiz's June 2010 report reflects the aforementioned problems with hips, knees and ankles. There is no indication of any treatment records or review of medical records. The November 2010 VA examination for joints reflects diagnoses of degenerative joint disease of the hips, feet and ankles, left patellar enthesopathy and normal right knee, and bilateral Achilles enthesopathy. The Veteran reported that his joints condition started insidiously with slow progression, not related to any trauma history. Treatment records do not reflect complaints or findings related to hip, knee or ankle conditions until many years following service. An August 17, 2021 VA contractor examination reflects the examiner's diagnoses of bilateral gout as to the ankles dating from 2021, bilateral hip arthritis dating from 2010, and right knee meniscal tear and patellofemoral pain syndrome dating from 2014, with no diagnosis as to the left knee. The examiner opined that that the Veteran's bilateral hip disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. They explained that degenerative changes in the pelvic joint is commonly found in people over 50 years or older, when the cartilage of the joint gradually begins to lose as has occurred in this Veteran. The medical records in this case do not report any injury, accident or treatment for a bilateral hip condition during service and there is no link between this medical condition and his military service. The right knee disability was also found to be less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the military medical record as well as the discharge letter and the military medical history is silent for an incident of the right knee or injury, and there is no history of difficulty walking or any immobilization during his military life because of said condition or disability. The VA contract examiner also found the bilateral ankle disability less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the evidence in this Veteran's record does not show an event, disease or injury in service related with or to a bilateral ankle disability. The military medical record does not reveal information on an ankle injury or immobilization or treatment for any of the ankles in this Veteran during his military life. Gout is a metabolic disorder not associated with the military service. There is no relation between the bilateral ankle disability and his military service. The VA contract examiner commented that the opinion of Dr. Ortiz Valentin was based exclusively on the current history of the Veteran, but she does not make any arguments, evaluation or consideration about the military medical records or the military discharge sheet. Her report was based entirely on the present account provided by the Veteran himself, with no corroboration of said information or medical history. After evaluating the opinion of Dr. Ortíz Valentín and reviewing the military medical records as well as the military discharge sheet, the VA contract examiner concluded that there is no evidence in this case that this Veteran suffered any of those injuries or disabilities during his military life or as a consequence of the same. The VA contract examiner stated that a medical impression or objective medical opinion must be supported not only by the military medical records but also by objective findings such as X-rays, diagnoses, treatment, and response to treatment. This opinion should compile the Veteran's past history as well as the military history and present history so that the final result is one that is supported by an objective and impartial judgment, which did not occur in this case. The Veteran was shortly thereafter afforded a VA examination by a VA physician who carefully reviewed the claims folder, the report of which is dated August 23, 2021. The diagnoses included bilateral knee degenerative arthritis, other than posttraumatic, dating from a 2012 bone scan, along with the 2014 right knee meniscal tear and patellofemoral pain syndrome, bilateral ankle degenerative arthritis by 2012 bone scan and bilateral achilles tendon enthesopathy dating from 2009, and bilateral hip degenerative arthritis, other than post-traumatic, diagnosed in 2010. The examiner found the conditions less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. As to the ankles, the examiner noted the February 1973 separation examination was negative for evidence of any bilateral ankle condition and that the Veteran's lay statement is that he began having bilateral ankle pain since approximately 35 years ago, which would be 1986 which is several years after service. The current bilateral ankle condition was diagnosed several years after active duty service, with degenerative arthritis of bilateral ankles diagnosed by bone scan done in 2012. The bone scan was noted to be consistent with bilateral ankle degenerative arthritis as seen in normal progression of aging process. As to bilateral Achilles tendon enthesopathy, this was diagnosed by X- ray done in year 2009, 36 years after active duty service. As to Dr. Ortiz Valentin's 2010 opinion, the VA physician noted that it was not indicated that she reviewed the STRs and she did not include a complete musculoskeletal examination in her report to support her opinion. As to her rationale regarding bilateral ankle condition, the VA physician noted that medical evidence does not support the fact that having bad posture can possibly cause degenerative arthritis of the ankle joints and also medical evidence does not support the fact that bad posture can cause bilateral Achilles tendon enthesopathy. As to the hips, it was again noted that STRs were silent for this condition and there is no objective evidence that the Veteran required treatment for the hips at least within 5 years after been released from service. As to Dr. Ortiz Valentin's opinion, it was also noted that osteoarthritis is one of the most common causes of joint pain that affects people over 50. Everyday wear and tear damages the joints (this age related change in the joints vary from one person to the other). Research suggests that 95% of people will develop osteoarthritis by the age of 65, but only some people will have problems with the condition. Dr. Ortiz's medical certificate does not give an explanation or rationale to suggest why she thinks that multiple joints with osteoarthritis are caused by military service. There is no evidence that he sought medical care for hip condition at least within 5 years after been released from service. Actual hip osteoarthritis was diagnosed in 2010 by imaging study (practically, more than 30 years after been released from service). This means that hip osteoarthritis was diagnosed after he retired from his civilian job. After reviewing all medical records, there is no evidence to suggest a direct nexus of causality between military service injuries to the present bilateral hip condition. The hip condition is a chronic condition that tends to get progressively worse over time with natural aging process and/or due to repetitive trauma. This is a long-standing process. The actual hip condition is more likely than not caused by age, obesity and occupational history, all of which predispose to developed degenerative joint disease. There is significant evidence in medical literature that supports the fact that the actual bilateral hip condition is part of normal aging process in patients older than 40 years old. It is worth mentioning that the current bilateral hip condition was diagnosed by imaging study, several years after active duty service. The findings of the hips are more likely than not related to the natural process of aging. Importantly, there is no evidence of continuity of treatment for condition claimed at least within 5 years after being released from active service. Thus, the bilateral hip condition is less likely than not caused by or the result of service, including pain and discomfort during service. As to the knees, it was again noted that STRs were silent for this condition and there is no objective evidence that the Veteran required treatment for the knees at least within 5 years after been released from service. Dr. Ortiz Valentin's opinion was noted but it was emphasized that the STRs were silent as to the knees and osteoarthritis is one of the most common causes of joint pain that affects people over 50's. Everyday wear and tear damages the joints (age related changes in the joint vary from one person to the other). Research suggest that 95% of people will develop osteoarthritis by the age of 65, but only some people will have problems with the condition. Dr. Ortiz does not give an explanation or a rationale to suggest why she thinks that multiple joints with osteoarthritis are caused by military service. There is no evidence that he sought medical care for knee condition at least within 5 years after been released from service. The actual bilateral knee conditions were diagnosed in 2012 and 2014 by imaging study (practically, more than 30 years after been released from service). This means that knee condition was diagnosed after he retired from his civilian job. After reviewing all medical records, the examiner found no evidence to suggest a direct nexus of causality between military service injuries to the present actual bilateral knee condition. The actual bilateral knee pathology is a chronic condition that tends to progressively worsen over time with natural aging process and/or due to repetitive trauma. This is a long-standing process. The actual bilateral knee conditions are more likely than not caused by age, obesity and occupational history, all of which predispose one to developed degenerative joint disease. There is significant evidence in medical literature that supports the fact that the actual bilateral knee condition is part of normal aging process in patients older than 40 years old. The examiner noted that the current bilateral knee condition was diagnosed by imaging study, several years after active duty service. As mentioned before, the findings of the knees are more likely than not related to the natural process of aging. Importantly, that there is no evidence of continuity of treatment for condition claimed at least within 5 years after being released from active service. Thus, the bilateral knee condition is less likely than not caused by or the result of service, including pain and discomfort during service. Throughout the appeal, which stems from a claim filed in 2010, the Veteran has made lay statements that the hip, knee and ankle conditions are related to the rigors of service. We note that in 2021, archive VA treatment records were obtained from VA facilities which include August 1986, May 1983, November 1976 and 1973 treatment for unrelated medical matters. We also note at this juncture that we find the August 23, 2021 VA examination and opinion to be consistent with the record and thorough, and that the August 17, 2021 VA contractor's opinion is not wholly consistent with the facts as to diagnosis. Ultimately, we find the August 17, 2021 opinion not fully adequate, but the August 23, 2021 opinion is wholly adequate. While hip, knee and ankle arthritis constitute chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), no such disease manifested in service or within a presumptive period, and continuity of symptomatology is not established. Again, STRs were negative for hip, knee and ankle complaints or problems, and the February 1973 separation examination was normal. There were no related complaints for many years following service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Here, we have documented complaints and findings not until many years following service. Thus, bilateral hip, knee and ankle disorders were first noted years following the Veteran's separation from active service in 1973 and outside the applicable presumptive period. While the Veteran is competent to report having experienced certain symptoms, to the extent that he alleges symptoms since service, the record of the normal examination at separation, and the lack of complaints for many years in post service records contradicts these assertions. Also relevant is the August 23, 2021 VA medical opinion that these hip, knee and ankle problems were not noted in service or for years later nor was the record consistent with such a finding. To that extent, the Veteran's assertions are not credible. Here, bilateral hip, knee or ankle pathology, to include arthritis, was not "noted" during service and he did not have characteristic manifestations of the disease process during service or within one year of separation. Rather, at separation the joints were normal and no complaints were recorded. The Board accords substantial probative weight to the competent medical evidence, the treatment record and the August 23, 2021 VA opinion, which establishes that the bilateral hip, knee and ankle disorders first manifested decades after service, and not during service or during a presumptive period. The medical record is contrary to his lay assertions and is more probative than the Veteran's assertions on these points. Also, Dr. Ortiz does not actually state that these conditions were noted within the first post service year, but to the extent that her opinion can be taken to suggest as such, it is outweighed by the comprehensive August 23, 2021 VA physician's opinion. The VA physician provided substantial reasons for rejecting Dr. Ortiz's unsupported opinion. We find the VA examiner's opinion more probative for this reason on this point. Further, the preponderance of the evidence is against finding that a nexus exists between the Veteran's bilateral hip, knee or bilateral ankle disorders and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Again, we find that the disorders began years after service and have not been related to service by any competent evidence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Again, we have negative clinical examinations and no complaints in service, initial recorded complaints and treatment not for decades, and diagnoses not before the 2000's. The lack of identification of complaints or findings in the post service treatment record for multiple decades following service is highly persuasive evidence against finding current bilateral hip, knee and ankle disabilities related to service. Ultimately, the Board gives more probative weight to the credible medical evidence, most notably the August 23, 2021 VA medical opinion which shows that the disorders first manifested decades after service and are unrelated to service. The opinion is based upon sufficient facts or data, is the product of reliable principles and methods and is the result of principles and methods reliably applied to the facts. The multi-year gap between discharge from active duty service and evidence of the conditions years later is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The August 23, 2021 VA medical examiner's opinion gives a well-supported rationale with a reasonable alternative as to the etiological cause of the Veteran's claimed disabilities, specifically age, wear and tear over time, and occupational history, in which slow progressive injuries may have developed over time. Prejean v. West, 13 Vet. App. 444 (2000). The examiner considered the Veteran's report of repeated lifting in service as well as Dr. Ortiz's opinion and explained why they found that the current conditions were not as likely as not related to incidents of service. The examiner has fairly considered the material evidence of record. Dr. Ortiz's opinion is outweighed by the August 23, 2021 opinion. The medical record is also more probative than the Veteran's assertions on these points. The Veteran's assertions of on-going symptoms since service are not credible. The preponderance of the evidence is against the claims. The evidence is not in approximate balance and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.