Citation Nr: 21077277 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-60 109 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral knee disability is denied. Entitlement to service connection for bilateral hip disability is denied. FINDINGS OF FACT 1. The Veteran has no disability of either knee which is related to active service. Arthritis in either knee was not present within the first post-service year. 2. The Veteran has no disability of either hip which is related to active service. Arthritis in either hip was not present within the first post-service year. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for bilateral hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to December 1975. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in September 2019, a transcript of which is of record. The Board remanded the appealed issues in November 2019, June 2020, and June 2021. They now return to the Board for further review. Service Connection 1. Entitlement to service connection for bilateral knee disability 2. Entitlement to service connection for bilateral hip disability The Veteran seeks service connection for disabilities of the bilateral hips and knees, contending that current disability including arthritis was the result of injuries during service, including a motorcycle accident. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337(Fed. Cir. 2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). At his September 2019 hearing, the Veteran testified about medical care he received in service, "I complained constantly, a lot about my back injury, my neck hurting. I have always complained about it and I complained about getting headaches from time to time, and they used to give me aspirin, sent me on my way." (Hearing transcript (Ht), pg. 5.) But then with regard to his knees, he testified, "My legs hurt too. My knees did, they did hurt. I didn't complain a lot about it because back then you just kind of sucked it up and took it in or you'd be called a wimp, you know." (Ht, pg. 5.) These two statements are contradictory and serve to undermine the credibility of the Veteran's self-reported histories of pain in the knees and hips from service. It is inconsistent that he would have been constantly complaining about his back and neck and then not complaining about his knees because he did not complain about things out of concern about being called a wimp. The contradictory positions point to falsity of one position or the other. Because service treatment records do reflect some complaints about the Veteran's back and neck, the Board concludes that his testimony that he had knee symptoms in service about which he did not complain in order to 'suck it up' and avoid 'being called a wimp' lack credibility based on these inconsistent statements. Caluza, 7 Vet. App. at 511, 512. Further, the Veteran testified in reference to his knees that his injuries were "[n]ot noticeable to me until later on in my life I find it a little more pain and of course I couldn't follow-up any further than that either simply because I couldn't afford insurance when I did get out of service." (Ht., pg. 5.) This self-reported history of knee pain is incoherent in its inconsistency. Either he did not notice knee pain until later in life or he did not seek treatment for his knees upon getting out of service because he did not have insurance. Both positions cannot be true. These unaccountably contradictory narratives further undermine any credibility in the Veteran's self-reported histories of his knee and hip disabilities. Similarly, the Veteran's statement upon VA examination (addressed further below) that he had hip symptoms from service for which he did not seek treatment are not credible since he did report or seek treatment for neck and back pain but did not mention his hips, and it is not credible that he would have had hip pains in service about which he did not complain in service in light of his self-reported constant complaining about his neck and back. The Veteran's statements upon examination of hip symptoms from service are also not credible based on the Veteran's undermined credibility as a result of the above-discussed contradictory statements about in-service complaints about his neck, back, and knees and post-service treatment for his knees. The Veteran testified, in effect, that VA and private doctors stated that his arthritis in joints, including the knees and hips, were attributable to his falling and tumbling in a motorcycle accident in service. (Ht., pg. 6.) However, these statements by his doctors (if they were made at all, since the Veteran's credibility as a historian of what his doctors said is also impaired, based on the Veteran's impaired credibility generally as a historian due to the above-discussed contradictory statements), would have been based on the Veteran's self-reported narrative of events in service and associated symptoms thereafter. Because, as discussed, the Veteran's self-reported histories of symptoms of his knees and hips in service are not credible, the statements by the Veteran's treating doctors relying on those self-reported histories would be of essentially no probative value. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). The Veteran testified to not seeking care for his neck, his back, and multiple joints until approximately "10 or 11" years prior to the hearing. (Ht., pg. 15.) Accepting those statements about treatment initiation years after service as statements against interest and thus of greater credibility, treating physicians would not have had first-hand knowledge of the status of his knees or hips in years proximate to service. There is no post-service record of treatment for the knees or hips until over 30 years after service. Hence, absent credible supporting evidence, treating medical records do not support knee or hip disability proximate to service. Also at the hearing, the Veteran's spouse testified to the Veteran complaining about pain from the time she met him. She also testified that this complained-of pain had grown worse as the Veteran aged. However, she acknowledged that they had not met until three or four years after service, and hence she could not provide first-hand knowledge about any complaints of pain or observed impairments either in service or in the two years immediately after service. Regarding the Veteran's expressed belief that he developed arthritis in his joints, including his hips and knees, as a result of his suffering a fall from a motorcycle in service, the Board finds that the Veteran's lay opinion about etiology of his arthritis is not competent evidence to support his claims, since questions of etiology of complex medical disorders such as arthritis are beyond the ambit of lay knowledge, rather requiring medical professional knowledge and expertise. Although the Veteran's duties in service are listed to include "medical specialist" and "ward attendant," there is no indication that the rudimentary training the Veteran may have received for these roles would have afforded him expertise in addressing complex medical questions involved in the diagnosis or etiology of joints including arthritis. The Veteran's reported post-service work in oil fields is also not shown to have involved medical training or practice. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Serviced treatment records reflect that the Veteran was treated following a motorcycle accident in June 1974, though treatment records from that accident reflect no complaints, findings, diagnoses, or treatment for conditions of the knees or hips. June 1974 treatment records document injuries consisting of abrasion over the right elbow; sunburns to the back, shoulders, and arms; and multiple superficial lacerations. The Veteran was seen in November 1975 for a reported episode of his leg giving out causing him to fall. However, the Veteran did not then report any difficulties with a hip or knee, and medical findings did not reflect any condition of the hips or knees. X-rays were then obtained based on reported injury to the head and back with associated tenderness and pain, but there was no mention of symptoms or findings of the hips or knees. The sole service treatment record noting a knee condition is an April 1973 treatment in which the Veteran complained of pain in the knees present for two weeks which was not of traumatic origin. He also complained of shortness of breath and weight loss. The Veteran then reported that he had been ambulating, and the examiner found no evident effusion and no ligament derangement, but noted the pain was present on the lateral epicondyl to the right of the tibia. Service treatment records include no follow-up treatment or other service record reflecting complaints, findings, diagnoses, or treatment for a knee condition. There are no service records reflecting any complaints, findings, diagnoses, or treatment for a hip condition. There is also no service separation examination of record. Service personnel records reflect that the Veteran was stationed overseas in Germany, not Vietnam. They inform that his service assignments included ward attendant, medical specialist, ambulance driver, and record clerk, none of which duties are notable as being particularly likely to have resulted in injuries including overuse injuries to the knees or hips, and the Veteran has not alleged any such work-related injuries in service. Post-service records provide no record of complaints, findings, diagnosis, or treatment for any condition of the knees or hips for decades following service. Among medical treatment records associated with the claims file on February 12, 2020, private chiropractor J.Q.A. provides an opinion that the Veteran's in-service motorcycle accident and the wear and tear of his military duties contributed to his chronic pain and limited range of motion. However, because this opinion does not speak to any specific disability of the knees or hips, this opinion cannot be based on any evidence of knee or hip symptoms or disability following the motorcycle accident in service independent of the Veteran's non-credible self-reported history because there is no such service record evidence of knee or hip symptoms or disability following a motorcycle accident in service, and this opinion is based on wear-and-tear from duties in service without consideration of the Veteran's reported 12 12 years of work in an oilfield following service, the Board finds this opinion by J.Q.A. to be non-probative for purposes of supporting the Veteran's claims for service connection for disabilities of the hips or knees. There is not sufficient factual predicate evidence for the opinion by J.Q.A. to serve to support a link between service and claimed disabilities of the knees or hips. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). Upon VA examination of the lower extremities in September 2019, the examiner found that the Veteran did not have a current diagnosed condition associated with his claim for bilateral knee disability. However, upon VA examination in February 2020, bilateral degenerative arthritis of the knees was noted. Upon VA records-based examination in September 2021 addressing the knees, the examiner noted service treatment records following an in-service motorcycle accident in June 1974. The examiner also noted the record of a complaint of bilateral knee pain in April 1973 with assessed left benign cortical defect and x-rays negative at that time. The examiner also noted that the Veteran had reported a past jeep roll-over accident and falling from a scaffold, which the Veteran reported both occurred in service. The examiner also noted a November 1975 record of the Veteran reporting that he fell and hit his head and neck two days ago, that his legs gave out, and that he felt bad. The examiner noted the absence of a service separation examination. The examiner also reviewed the opinion of chiropractor J.Q.A. that the Veteran's in-service motorcycle accident and the wear and tear of his military duties contributed to his chronic pain and limited range of motion. The examiner noted that a January 2021 x-ray report identified bilateral knee arthritis. The examiner reviewed the Veteran's September 2019 testimony including the Veteran's statements about not complaining too much in service for fear of being called a wimp, of the Veteran's reports of not seeking care after service because he did not have insurance and was unaware of the availability of VA care, and of his knee condition not being noticeable until later in life. The examiner also noted the Veteran's report of having worked in an oilfield for 12 12 years. The examiner considered the Veteran's self-report of having bilateral knee pain since service and being unable to seek care following service due to absence of insurance and unawareness of VA care services, and contrasted this with "zero documented complaints or treatment, either in-service or post service to support subjective claims." The examiner reported medical knowledge that risk factors of osteoarthritis included joint injury or overuse, age, gender, obesity, genetics, and race. The examiner observed that the Veteran worked in oilfields following service for 12 12 years prior to owning a water softener business, and that he had a history of obesity with a BMI of 35. The examiner noted that the Veteran (as a layperson) was credible to address symptoms but not to attribute symptoms to a diagnosis. Based on all of this, and the fact that bilateral knee arthritis was not diagnosed until 2020, over 40 years following service, the examiner concluded that it was not at least as likely as not (less than 50 percent probability) that the Veteran's claimed knee disabilities were incurred in service or caused by an in-service injury, event, or illness. The Board finds the weight of competent and credible evidence to be consistent with and supportive of the opinion of the September 2021 examiner. As discussed, the Board does not find the Veteran's self-reported history of symptoms of knee disability developing in service or continuing from service to be credible, and the Board does not find the opinion of chiropractor J.Q.A. to be probative evidence supporting a link between service and claimed knee disabilities. In contrast, identified risk factors unrelated to service are present, including obesity and age. Post-service work in oil fields over 12 12 years would also appear more likely to have resulted in overuse of the knees contributing to arthritis than would the likely less strenuous in-service work identified in service personnel records - ward attendant, medical specialist, ambulance driver, and record clerk over the considerably shorter three-year service interval. (While the Board could remand the case to ask the Veteran whether his post-service work in oil fields was more or less strenuous and placed more or less strain on his knees and hips than his in-service duties as a ward attendant, medical specialist, ambulance driver, and record clerk, the Veteran's responses would not be credible, for the above-discussed reasons. Hence, remand to ask these questions would be a waste of scarce resources which would add no support for the appealed claims. It is well-settled that development merely for its own sake, without a reasonable possibility of substantiating a claim, "cause[s] unnecessary delay, waste[s] scarce resources, and [is] harmful to the entire system, including to the Court, VA, and, most importantly, the [V]eteran." Carter v. Shinseki, 26 Vet. App. 535, 547 (2014).) While there was a single complaint of knee pain early in service in April 1973 associated with running, there were no service records of complaints of knee pain thereafter, the VA examiner did not associate this April 1973 complaint with the Veteran's current disability, and there is not competent, credible evidence supporting onset in service of knee disability present during the claim period, or of a causal link between service and such a knee disability. There is also not competent or credible evidence support the presence of arthritis of the knees to a compensable degree within the first post-service year. Accordingly, the Board finds the preponderance of the evidence against the claim for bilateral knee disability on direct and first-year-post-service presumptive bases. 38 C.F.R. §§ 3.303, 3.307, 3.309. While the Veteran was found to have bilateral hip arthritis upon VA examination in January 2020, the examiner provided no etiology opinion, and at that examination the Veteran denied injury to the hips. The private opinion letter by chiropractor J.Q.A. also did not mention the hips, though he did provide the noted general opinion about contribution of the Veteran's in-service motorcycle accident and wear and tear in military duties to the Veteran's chronic pain and limited range of motion, which could potentially include impairment of the hips. However, as discussed, the Board finds that the opinion of J.Q.A. is non-probative for purposes of supporting the Veteran's claims for service connection for disabilities of the hips or knees. The Board nonetheless remanded the hips claim in June 2021 for an examination nexus opinion. Upon VA records-based examination in September 2021 addressing the hips, the examiner noted service treatment records following an in-service motorcycle accident in June 1974. The examiner also noted that the Veteran had reported a past jeep roll-over accident and falling from a scaffold, which the Veteran reported both occurred in service. The examiner also noted a November 1975 record of the Veteran reporting that he fell and hit his head and neck two days ago, that his legs gave out, and that he felt bad. The examiner noted the absence of a service separation examination. The examiner also reviewed the opinion of chiropractor J.Q.A. that that the Veteran's in-service motorcycle accident and the wear and tear of his military duties contributed to his chronic pain and limited range of motion. The September 2021 VA examiner opined that it was not at least as likely as not (less than 50 percent probability) that the Veteran's claimed bilateral hip disability was incurred in service or caused by an in-service injury, event, or illness. The examiner supported this opinion by the absence of service records reflecting any complaints or diagnosis of a condition of the hips, no documentation of lower extremity complaints in service records of treatment following the motorcycle accident in June 1974, and no documented complaints or treatment to support the Veteran's self-report of hip pain in the years following service, and his self-report of inability to seek care due to lack of insurance and unawareness of VA care services. The examiner noted the above-noted risk factors of osteoarthritis, including obesity and age, and observed the Veteran's history of obesity and no diagnosis of arthritis of the hips until 2014, over 30 years after service. The Board finds the weight of competent and credible evidence to be consistent with and supportive of the opinions of the September 2021 examiner against onset of a hip disability in service and against a hip disability being causally related to service. As discussed, the Board does not find the Veteran's self-reported history of symptoms of hip disability developing in service or continuing from service to be credible, and the Board does not find the opinion of chiropractor J.Q.A. to be probative evidence supporting a link between service and claimed hip disabilities. In contrast, identified risk factors unrelated to service are present, including obesity and age. The Board also notes that the post-service work in oil fields over 12 12 years could have resulted in overuse of the hips contributing to arthritis rather than the likely less strenuous in-service work identified in service personnel records - ward attendant, medical specialist, ambulance driver, and record clerk over the considerably shorter three-year service interval. There is also no record of complaint of any condition or symptoms of the hips in service, and there is not competent, credible evidence supporting onset in service of hip disability present during the claim period, or of a causal link between service and such a hip disability. There is also no competent or credible evidence supporting the presence of arthritis of the hips to a compensable degree within the first post-service year. Accordingly, the Board finds the preponderance of the evidence against the claim (Continued next page) for bilateral hip disability on direct or first-year-post-service presumptive bases. 38 C.F.R. §§ 3.303, 3.307, 3.309. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.