Citation Nr: 21007220 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-37 351 DATE: February 9, 2021 ORDER Entitlement to service connection for left hip degenerative arthritis is denied. Entitlement to service connection for right ankle degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran’s left hip degenerative arthritis is not etiologically related to his active duty service, or due to aggravation by a preexisting condition. 2. The Veteran’s right ankle degenerative arthritis is not etiologically related to his active duty service, or due to aggravation by a preexisting condition. CONCLUSIONS OF LAW 1. The criteria for service connection for left hip degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for right ankle degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing in November 2017 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In August 2020, the Board remanded this claim to the RO for further development. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Under 38 U.S.C. § 7104 (2018), Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2018). A Veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for left hip degenerative arthritis The Veteran contends his left hip pain originated from service after jumping out of trucks while in the military. Additionally, the Veteran contends service connection is warranted due to aggravation by pre-existing polio. The record establishes that the Veteran has been diagnosed with degenerative arthritis within the appellate period. See October 2020 VA examination. Thus, the current disability prong of a service connection claim has been satisfied. The second element of a direct service connection claim, an in-service incurrence, has not been established by the evidence. The October 2020 VA examiner explained there is no documentation of any symptoms of, treatment for, or diagnosis of a left hip condition during service. The Veteran specifically stated that he did not have any issue or problems with his left hip during his time in the military. He further explained that he did not have left hip pain until 2011. As the second element (in-service incurrence) is not demonstrated with respect to left hip arthritis, the claim for service connection for left hip pain must be denied on a direct basis. Even if the second element could be established, the record still lacks a medical nexus. The examiner cited the lack of objective evidence for that 42-year period between separation of service and the onset of pain. This weighs against finding a continuity of symptoms sufficient to establish a nexus. Therefore, a causal relationship between the Veteran’s active duty service and his current left hip disorder could not be established because the large gap in treatment failed to establish a longitudinal trend of subjective complaints and objective findings. If the record showed treatment for the jump injury within one year of service separation and at least periodically thereafter, service connection may be granted based on continuity of symptomatology under § 3.303(a). Here, there were no complaints or treatment for residuals from jumping out of trucks, or from any other activity during service. Thus, service connection cannot be presumed under the provisions of 38 C.F.R. § 3.303(a). The Board has also considered whether service connection can be granted on a theory that his hip pain was aggravated beyond its natural progression by a pre-existing polio disease. 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran’s entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The October 2020 examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. It was noted that the Veteran had polio in 1952, and there is no evidence to suggest that the service treatment record for pain in 1962 is connected to the pre-service polio diagnosis. The examiner explained that it is unlikely that the Veteran’s history of polio significantly affected him since he was able to enter into and serve in the Army without a physical profile, and did not hinder his ability to pursue and retire from federal service with the Postal Service. Further, it was noted that the Veteran did not have a chronic left hip condition prior to entering the military. The August 1966 examiner noted “NCHD”, which stands for “No Current (or Chronic) Health Disease (or Disability).” This supports the examiner’s opinion that left hip degenerative arthritis could not have been aggravated by military service because it did not exist before service. This medical opinion is highly probative because it was based upon a thorough review of the claims file, medical literature, and a well-reasoned rationale. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that service connection is not warranted for left hip arthritis on a direct basis, or aggravated by a pre-existing polio diagnosis and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for right ankle degenerative arthritis Similar to the left hip injury, the Veteran believes the pain in his current right ankle pain is due to jumping from trucks while in service. See October 2020 VA examination. The October 2020 examiner provided a medical opinion as to whether the Veteran’s right ankle condition preexisted service and, if so, whether it was aggravated beyond the natural progression of the disease. If the injury did not preexist service or was aggravated, the examiner was to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle condition had its onset during, or is otherwise related to, his active service. Regarding whether the condition preexisted service, the examiner noted the Veteran’s self-report of a past history of a broken right ankle. This reportedly healed without any ongoing chronic residuals by the Veteran’s report. There were no abnormalities, limitations, or restrictions of the right ankle noted in service. The examiner concluded that the Veteran’s chronic right ankle arthritis was not a preexisting condition, and there is no plausible basis to suggest aggravation of the condition by polio or by military service. Regarding direct service connection, the examiner opined that the condition claimed was less likely than not (less than 50% probability) due to or otherwise related to the Veteran’s military service. The examiner referenced the fact that there are no complaints, treatment for, or diagnosis of any right ankle condition. The Veteran stated that he did not have right ankle pain until around 2011, i.e., more than 40 years after his discharge. Although not dispositive, this large gap between service and treatment tends to weigh against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection). Therefore, as the second element (in-service incurrence) is not demonstrated with respect to right ankle pain, the claim for service connection for right ankle degenerative arthritis, must be denied on a direct basis. As no in-service incurrence is shown, the Board need not address whether there is a causal relationship between the present disorder and service (third element), although the same analysis from the left hip condition applies. The October 2020 examiner also addressed inconsistencies with the November 2019 VA examination where the examiner noted that the Veteran fractured his right ankle as well as his left ankle in boot camp in 1966. The October 2020 examiner performed an extensive review of the records and an interview with the Veteran and determined that the notation of a right ankle fracture in service is factually inaccurate. The record states, and the Veteran confirmed that he fractured his right ankle before service, not during service. The examiner concluded that the right ankle fracture was an acute injury that resolved without any lasting residuals. The August 1966 entrance exam noted a normal right ankle, with no abnormalities, limitations, or restrictions. Like the left hip, there was not a physical profile on the Veteran’s record, or any complaints during service or for decades after separation. For the foregoing reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.