Citation Nr: 21011596 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-01 359 DATE: March 2, 2021 ORDER Entitlement to service connection for left leg condition, to include claimed as secondary to a service-connected low back disability is denied. Entitlement to service connection for left hip condition, to include claimed as secondary to a service-connected low back disability is denied. FINDINGS OF FACT 1. The most credible evidence does not show the Veteran has a current left leg condition attributable to any incident of service or caused or aggravated by his service-connected low back disability. 2. The most credible evidence does not show the Veteran has a current left hip condition attributable to any incident of service or caused or aggravated by his service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left leg condition due to service or secondary to a service-connected low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for left hip condition due to service or secondary to a service-connected low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1991 through March 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims for left leg condition and left hip condition were originally remanded in September 2012 when a low back disability was remanded after the Board determined that the left leg and left hip conditions could not be decided without further clarification on the low back disability. In June 2015, the Board again remanded for execution of a VA examination after good cause was shown by the Veteran for not attending a previously schedule VA examination. Finally, in August 2020, the Board granted service-connection for a low back condition and remanded the left leg and left hip conditions for further development. The low back grant is considered a full grant of benefits and the issue is therefore no longer on appeal here. The Board finds there was substantial compliance with the August 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 552 (2008). Service Connection The Veteran claims during his brief, one-month service, he suffered an injury during basic training. Specifically, he indicates that his drill Sargent stepped on his back during a training exercise, which ruptured 3 discs and caused leg and hip problems. Alternatively, he contends his left leg and left hip problems are secondary to his already service-connected low back disability. The Board finds that neither a left leg condition nor a left hip condition are entitled to service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. To establish entitlement on a secondary basis, the claimant must show that (1) there is evidence of a current disability; (2) there is a different service connected disability; and (3) there is a causal connection, or “nexus” between the service-connected disability and the current disability, showing either a causation or an aggravation of the current disability. See Allen v. Brown, 7 Vet. App, 439 (1995). 1. Entitlement to service connection for left leg condition, to include claimed as secondary to a service-connected low back disability is denied. 2. Entitlement to service connection for left hip condition, to include claimed as secondary to a service-connected low back disability is denied Again, the Veteran claims his left leg and left hip problems started in service as a result of a training exercise injury where his drill Sargant stepped on his back allegedly rupturing 3 discs, or alternatively are secondary to his service-connected low back condition. The Veteran’s service treatment records, however, show no complaints, treatment, or diagnoses related to his left hip or left leg. Rather, the Veteran entered service with a noted history of scoliosis, and on March 1991 he was seen complaining of mid to lower back pain from basic training. X-rays at that time did not show ruptured discs, but rather showed degenerative arthritis of the thoracic and lumbar spine. The Veteran was deemed unfit for military service and was not recommended for retention. After service, the Board finds noteworthy that the Veteran continued to contend he had suffered an “injury” in service at the hands of his Drill Sargant stepping on his back. In contrast, and for the first time, a September 2008 private treatment record shows the Veteran told his private physician that he fell 30 feet during a military training session in 1991, which caused an L5-S1 disk herniation and required immediate surgery. Despite this reported history, none of the Veteran’s private or VA medical records include surgical records or, significantly, show a surgical scar. Indeed, X-rays from 1991 do not show disk herniation, they only show degenerative arthritis. The first showing of a disk herniation is an April 2009 MRI, nearly two decades after service. While it is not the purview of the Board’s decision here to challenge his service-connected back disability, the Board points out the Veteran’s medical and procedural history in this case because with regard to the left hip and left leg conditions, the Board finds the Veteran’s contentions regarding the extent and severity of an in-service injury simply not credible. It is the responsibility of the Board to consider and assign probative value to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (it is the responsibility of the Board to assess the probative weight of the evidence). Where the evidence at issue is a lay statement or testimony, the Board may find that it lacks probative value if it finds such statement or testimony to be mistaken incorrect, untrustworthy, or otherwise not credible. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). In assessing the credibility of evidence, the Board may consider any number of factors, to include conflicting statements or evidence, and the potential bias of the declarant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345 (1999). Here, the Veteran’s claim in statements to VA that he injured his left leg and left hip when his Drill Sargant jumped on his back during a training exercise is in conflict with what he told his private physician in 2008, that he fell 30 feet during a training exercise in the military in 1991 causing an L5-S1 disc herniation. In truth, both of these statements are in conflict with the service treatment records, which merely indicate the Veteran went to sick call complaining of generic back pain in the mid to lower back. Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (affirming rejection of lay evidence based, in part, on fact that it was inconsistent with the record). The 2008 private physician record also indicates the Veteran had surgery in 1991 to repair the disc herniation, but no such surgical records are in the claims file and, indeed, VA examiners have consistently noted that there is no surgical scar. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding the Board’s finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). In light of these inconsistencies, the Board will give the objective medical evidence in this case more probative value than the Veteran’s subjective statements, to include his statements describing left leg pain and left hip pain. In this case, the objective medical evidence does not show that the Veteran has a current left hip or left leg disability or that his subjective pain causes any functional impairment in earning capacity and, thus, service connection is simply not warranted on a direct or secondary basis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In particular, the Veteran was afforded VA examinations in December 2015, April 2019, and December 2020. At these times the only relevant abnormality mentioned was a history of a left hip sprain in 2015, which has since resolved, with no residuals. At the time of the December 2020 VA examination, the Veteran had no diagnoses, no pathology, and no concerns relevant to the left hip or left leg. Again, while there are times when a disability can be service-connected based on pain alone, there is no indication in the Veteran’s claims file that there has been consistent treatment or consistent pain in the left leg or the left hip to warrant functional impairment of earning capacity. Saunders, 886 F.3d 1356. The Board concludes that the Veteran does not have a current diagnosis of a left leg condition or a left hip condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, there is no basis for service connection and both claims must be denied. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.