Citation Nr: A21020568 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 190820-26452 DATE: December 27, 2021 ORDER Service connection for a right hip disability is denied. Service connection for a right knee disability, to include claimed secondary to a service-connected disability is denied. FINDINGS OF FACT 1. The Veteran's preexisting right hip disability was not aggravated by disease or injury sustained during his period of service. 2. The Veteran does not have a current right knee disability that was caused by or worsened by a service-connected disease or injury; a right knee disability did not onset due to disease or injury sustained during a period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303,3.304, 3.306. 2. The criteria for service connection for a right knee disability, to include claimed secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154 (2012); 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 1981 to July 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or his/her representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the undersigned in a September 2021 virtual hearing. A transcript of the hearing is included in the electronic claims file. The August 2019 rating decision found that new and relevant evidence had been received to readjudicate the claim of service connection for right hip and right knee disabilities. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disability. Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and after service. 38 C.F.R. § 3.306(b). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a right hip disability The Veteran contends that he had a preexisting right hip disability that was aggravated during service. Because there was no increase in the right hip disability during service, the Board will deny this claim for service connection. The March 1981 Report of Medical History completed at the time of the Veteran's enlistment into the Active Reserves reflects that he sustained a disjointed hip at age 17. However, the corresponding March 1981 Active Reserves Enlistment Examination documents that musculoskeletal clinical evaluation was normal. Thus, the presumption of soundness is applicable as there is no documentation of a right hip disability on the enlistment examination. There were otherwise no complaints of, treatment for, or diagnosis of a right hip disability documented in the service treatment records. After service, a July 1995 private treatment record reflects that the Veteran received treatment for complaints of progressive right hip pain. He reported that he was involved in a motor vehicle accident (MVA) approximately 10 years previously (or, approximately in 1985, which is three years after his military service) and sustained a fracture dislocation of the right hip. He reported that he made a full recovery and was able to return to normal activities. He complained that two years earlier he began developing mild pain in the hip, especially with activity. He complained that he currently had constant right hip pain, especially with activity. On examination, the diagnosis was trauma, osteoarthrosis of the right hip. A March 1997 private treatment record reflects that the Veteran received treatment for a history of severe degenerative arthritis after a motor vehicle accident (MVA). On examination, the diagnosis was post-traumatic, degenerative hip arthritis. A March 1998 private treatment record reflects that the Veteran was approximately 20 years status post (s/p) a MVA in which he sustained a right hip dislocation. He reported that he was treated with closed reduction and bedrest. He did well after that initial injury until approximately 5 years earlier when he had progressive right hip pain in the lateral and posterior hip. X-ray findings showed severe joint space narrowing with subchondral sclerosis and osteophyte formation. The diagnosis was post-traumatic arthrosis of the right hip. An August 2002 private treatment record reflects that the Veteran had a history of degenerative joint disease (DJD) in the right hip. He reported that he was involved in a MVA when he was approximately 19 years old. He complained that he had gradually worsening right hip pain beginning six years earlier. On examination, the diagnosis was right hip traumatic arthritis s/p injury. The physician reported that the Veteran needs hip replacement. A January 2006 private treatment record documents diagnosis of right hip DJD. The physician reported that the Veteran had right hip DJD since approximately 1983 when he was involved in an MVA. An August 2009 private treatment record reflects that Veteran has a history of degenerative arthritis of the right hip that onset due to a MVA the Veteran was involved in when he was approximately 19 years old. The Veteran underwent total hip arthroplasty (THA) in 2007. The December 2014 private x-ray findings showed loosening of the right hip prosthesis acetabular component. No fractures were identified. There was periosteal thickening, more so along the inferior margin of the acetabulum. The May 2017 VA hip and thigh conditions examination report reflects that the Veteran sustained a fracture dislocation of his right hip in a car accident prior to service. He reported that he experienced aggravation of his preexisting right hip disability during service. However, he denied any specific right hip injury. He underwent right hip THA in 2007 but still experienced pain and stiffness in his right hip. The examining orthopedic specialist, opined that the Veteran's right hip disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service injury, event, or illness. The physician noted that the Veteran sustained a fracture dislocation of his hip prior to service, and explained that post-traumatic DJD and the need for THA following such a high energy injury was inevitable and it was much more likely that the Veteran's current right hip disability was due solely to his pre-service injury and unlikely aggravated by service. In a June 2017 statement, the Veteran's treating orthopedist noted that he had reviewed pertinent parts of the Veteran's military record "that documents his injury, disease, and clinical conditions related to the events that occurred." The orthopedist reported that he was aware that the Veteran aggravated a preexisting hip dislocation during his active-duty military service on or about February 18, 1982. The orthopedist concluded the natural progression of the preexisting hip injury more likely than not was increased and worsened more by the Veteran's military service than if he had lived a normal lifestyle. The Board finds that there is clear and unmistakable evidence that a right hip disability preexisted service. The evidence documented above reflects the Veteran's consistent report that he was involved in a MVA prior to service and sustained a dislocated right hip. In the Report of Medical history completed at the time of enlistment into the Active Reserves, the Veteran reported that he had a dislocated right hip prior to service. Moreover, the May 2017 VA hip and thigh conditions examination report and the June 2017 statement from the Veteran's treating orthopedist acknowledge that the Veteran had a preexisting right hip disability (hip dislocation from an MVA). Thus, the Board concludes that there is clear and unmistakable evidence that a right hip disability preexisted service. Further, during active service there were no complaints of, treatment for, or diagnosis of a right hip disability. The July 1995 private treatment record reflects the Veteran's report that he made an initial full recovery of the preservice injury and was able to return to normal activities. However, 2 years earlier (approximately 1993) he began having mild pain in the hip, especially with activity. A March 1998 private treatment record reflects that the Veteran did well after his initial injury until 5 years earlier (approximately 1993) when he began having progressive right hip pain in the lateral and posterior hip. The May 2017 VA hip and thigh conditions examination report documents the physician's opinion that the right hip disability was not aggravated beyond its natural progression by an in-service injury, event, or illness. The physician explained that post-traumatic DJD and the need for THA following such a high energy injury (pre-service right hip dislocation s/p MVA) was inevitable and it was much more likely that the Veteran's current right hip disability was due solely to his pre-service injury and unlikely aggravated by service. Thus, there is clear and unmistakable evidence that there was no increase in severity of the right hip disability during service and that the post-traumatic DJD and the need for THA was an inevitable occurrence following a high energy injury (i.e., the change was due to natural progress of the disability). The June 2017 statement reflects the Veteran's treating orthopedist's conclusion that the natural progression of the preexisting hip injury more likely than not was increased and worsened more by the Veteran's military service than if he had lived a normal lifestyle. The orthopedist's conclusion was based on his "awareness" that the Veteran had aggravated a preexisting hip dislocation during his active-duty military service on or about February 18, 1982. The treating orthopedist's opinion has no probative value. The explicit or implicit opinion of the physician that the appellant is truthful is not necessarily probative as to the facts of the account. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Moreover, while a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). Aside from the March 1981 Report of Medical History completed at the time of the Veteran's enlistment into the Active Reserves documenting notation of a disjointed hip at age 17, there were otherwise no complaints of, treatment for, or diagnosis of a right hip disability documented in the service treatment records. Simply stated, the orthopedist provided no support, i.e., no link to a specific incident or injury that aggravated the preexisting right hip disability for this bare conclusion. The Board affords this opinion no probative value. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (finding in part that the Board had properly discounted the probative value of a physician's opinion that had overlooked key pertinent medical evidence, and that the lack of a reasoned medical explanation is a significant factor in assessing the value of a medical opinion). Here, the more probative opinion is that of the VA physician in May 2017. The VA orthopedic specialist considered the Veteran's assertions, accurately reviewed the Veteran's entire claims file, and concluded that that there was no increase in severity of the right hip disability during service and that the post-traumatic DJD and the need for THA was an inevitable occurrence following the pre-service injury. The Board has the authority to and affords more probative weight to the opinion of the VA examiner physician in May 2017. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is not competent to link his current right hip disability to a period of service. 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). The Veteran is a lay person and is not competent to establish that his current right hip disability was aggravated during service or offer an opinion as to etiology of any current right hip disability. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a right knee disability, to include claimed secondary to a service-connected disability The Veteran contends that he has a right knee disability that was caused or aggravated by a service-connected disability (i.e., right hip disability). Because he does not have a service-connected disability and a current right knee disability is not otherwise shown to have been caused by service, the Board will deny this claim for service connection. A January 1982 service treatment record documents the Veteran's complaint of increased pain with strenuous exercise in the right knee. He denied having any trauma. On examination, the assessment was knee pain of questionable etiology/patellofemoral pain syndrome (PFPS). January 1982 x-ray findings showed no significant radiologic abnormalities. A February 1982 service treatment record reflects the Veteran's complaint of a painful right knee. He reported his knee gave out when he ran. On examination the assessment was PFPS. A subsequent February 1982 service treatment record reflects the Veteran received treatment for recurrent complaints involving the right knee. X-ray findings were negative. The provisional diagnosis was PFPS. The May 2017 VA knee and lower leg conditions examination report reflects that the Veteran does not have a current right knee disability. The physician opined that the Veteran's claimed right knee disability was less likely than not proximately due to or the result of a service-connected disability because the Veteran's current right hip disability was an inevitable result of his preservice injury and was due solely to his preservice injury and unlikely aggravated by service. Thus, because the Veteran's preexisting right hip disability was not service connected, there was no nexus to support his claim for the right knee. In a May 2017 VA examination addendum, the physician again found that the Veteran did not have a current right knee disability. The physician acknowledged that the Veteran did have PFPS during service but explained that he did not have a present right knee disability. A June 2017 from the Veteran's treating orthopedist noted that he had reviewed pertinent parts of the Veteran's military record "that documents his injury, disease, and clinical conditions related to the events that occurred." The orthopedist reported, in pertinent part, that he was aware that the Veteran "reported a knee injury during his active-duty military service on or about February 18, 1982. The orthopedist explained that the Veteran had osteoarthritis of the right hip which affected both knee and leg length. The orthopedist stated that the Veteran has constant pain, muscle control difficulty, tingling, numbness, and weakness in the legs and knees likely due to his hip. The orthopedist concluded, in pertinent part, that there were multiple other clinical conditions diagnosed that are more likely than not secondary to or aggravated by the primary hip condition, such as knee and back. June 2017 private MRI findings of the right knee showed questionable mild central radial ear of the medial meniscus. There was normal appearance of the lateral meniscus and no meniscal extrusion. Ligaments and tendons were intact and there was no joint effusion or bone contusion. The April 2019 VA knee and lower leg conditions examination report reflects that the Veteran does not have a current right knee disability. He reported that he developed right knee pain during his period of service and had right knee give way, locking, weakness and intermittent pain over the past 37 years since service. The examiner found no evidence of a right knee disability and concluded an opinion (as to etiology was moot). The examiner explained that physical examination of the right knee was normal. The examiner concluded that there were no service treatment records indicating a chronic right knee condition and it had been 37 years since the Veteran separated from service. The Veteran has presented no evidence of, and the May 2017 and April 2019 VA examinations (and addendum) establish that the Veteran does not have a current intrinsic right knee disability. Thus, there can be no valid claim for service connection for a right knee disability of the musculoskeletal system. The Board has considered the June 2017 opinion from the Veteran's treating orthopedist that there were multiple other clinical conditions diagnosed that are more likely than not secondary to or aggravated by the primary hip condition, such as knee and back. However, the Board reiterates that as service connection is not established for a right hip disability, the claim of service connection for a right knee disability, claimed secondary to a service-connected disability must be denied. Congress has specifically limited entitlement to service connection for disabilities that are proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Without a service-connected right hip disability, award of service connection for a secondary disability (i.e., right knee) predicated on an underlying service-connected disability is simply not established. Thus, the Board affords this opinion little probative value. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. at 305 (2008) (finding in part that the Board had properly discounted the probative value of a physician's opinion that had overlooked key pertinent medical evidence, and that the lack of a reasoned medical explanation is a significant factor in assessing the value of a medical opinion). The more probative opinions are those of the VA examiners in May 2017 and April 2019. The VA examiners considered the Veteran's assertions, accurately reviewed the Veteran's entire claims file, and concluded that though the Veteran had patellofemoral pain syndrome during his period of service, he does not have a current right knee disability. There was no evidence of a right knee disability and physical examination of the right knee was normal. The Board has the authority to and affords more probative weight to the opinions of the VA examiner examiners in May 2017 and April 2019. See Madden v. Gober, 125 F.3d at 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. at 470-71 (1993); Owens v. Brown, 7 Vet. App. at 433 (1995); Wensch v. Principi, 15 Vet. App. at 367 (2001). Reiterating, the Veteran is a lay person and is not competent to establish that his has a current right knee disability that onset because of service or service-connected disability. The Veteran is not competent to offer an opinion as to etiology of any current right knee disability. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. Jandreau, supra. (CONTINUED ON THE NEXT PAGE) Service connection for a right knee disability must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.