Citation Nr: 21011618 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-18 873 DATE: March 2, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to an evaluation in excess of 40 percent for residuals of right thigh femoral hernia is denied. FINDINGS OF FACT 1. The most competent and probative evidence of record demonstrates that the Veteran’s low back, neck, right knee, and right hip disabilities were causally related to service and/or aggravated by the service-connected right thigh disability. 2. A right shoulder disability, to include arthritis, was not shown as chronic in-service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not secondary to the service connected right thigh disability or otherwise etiologically related to an in-service injury or disease. 3. A right hand disability, to include arthritis, was not shown as chronic in-service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not secondary to the service connected right thigh disability or otherwise etiologically related to an in-service injury or disease. 4. The Veteran was not diagnosed with right arm disability during the pendency of this appeal. 5. Throughout the period on appeal, the Veteran's residuals of a right thigh femoral hernia, Muscle Group XIV, has been productive of severe injury; the Veteran's impairment of Muscle Group XIV is evaluated at the maximum schedular rating available for that disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 4. The criteria for service connection for a right hip disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 5. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 6. The criteria for service connection for a right arm disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 7. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 8. The criteria for a rating in excess of 40 percent for the Veteran's residuals of a right thigh femoral hernia, Muscle Group XIV, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.73, Diagnostic Code 5314 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to May 1976. He died in November 2017. The appellant is his surviving spouse who was properly substituted in these claims. See January 2021 VA Memorandum; see also 38 U.S.C. § 5121A. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript of that hearing is of record. During his hearing, the Veteran clarified that he intended to claim service connection for right arm and right hand disabilities, not bilateral. See Board Hearing Transcript, p.13. The Board has therefore recharacterized the issues on appeal to more accurately reflect the Veteran's contentions. Service Connection – Applicable Law and Regulations 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is considered a chronic disease under 38 C.F.R. § 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). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a low back disability. The Veteran essentially contended that his low back disability stemmed from a well-documented in-service injury/accident in which he was thrown against a stanchion (or rail) while at sea. He alternatively asserted that the service-connected right thigh femoral hernia disability altered his gait and posture and caused or aggravated his low back disability. As an initial matter, during the appeal period, the Veteran had been diagnosed with degenerative changes of the lumbar spine and intervertebral disc syndrome (IVDS). See, e.g., VA Treatment Records and November 2015 Examination Report from Dr. F.G. Thus, the currently disability requirement has been met here. With respect to in-service disease or injury, service treatment records (STRs) reflect that the Veteran was a victim of an accident at sea when he was thrown against a stanchion (or rail) on the deck of a ship. See August 1974 STRs and Personnel Records; see also Board Hearing Transcript. Although the initial injury was to the right thigh, the Veteran competently and credibly reported that he also injured the entire lower/back body and right side at that time. STRs do reflect complaints that his “right side from neck down to foot was injured” during the August 1974 accident. See April 30, 1976 STR. The Board thus finds that the in-service injury requirement has been met in this case. The remaining question for consideration here is whether the Veteran’s low back disability was related to service, or whether such was proximately due to or aggravated by the service-connected right thigh disability. On the issue of nexus, the record contains a January 2013 VA opinion in which the examiner opined that it was less likely than not that his current neck and back pain complaints were proximately due to or the result of his service-connected right thigh condition. He reasoned, “I cannot see any likely relations to his current complaints of: back pain…all of which occurred much more recently in different parts of his body.” To the extent that the examiner failed to address whether the Veteran’s low back disability was directly related to the documented in-service accident, and/or aggravated by the service-connected right thigh disability (to include by way of an altered gait), the Board does not find the VA opinion to be probative. The record also contains a November 2015 private opinion and examination from Dr. F.G., the Veteran’s orthopedic surgeon. After a thorough physical examination of the Veteran, as well as a review of the STRs and past medical history, Dr. F.G. diagnosed chronic lumbosacral pain “present by reason of gait pattern change; likely chronic low back symptoms overlapping direct impact right thigh injuries 1974 with chronic lumbosacral condition; loss of strength and right leg dominance residual to service incident of 1974.” Dr. F.G. then opined that the Veteran had a “causal nexus” to his service incident and the aforementioned diagnoses. He stated, “He sustained direct impact injuries to the right flank, right thigh with low back injuries in 1974…Subsequent to his service injury, he has had functional changes with diminished function of the right lower extremity. He has lost strength in the right leg. He has a chronic antalgic gait has contributed to the lumbosacral condition evident at this examination.” In essence, when Dr. F.G.’s opinion is read as a whole and in the light most favorable to the Veteran, he is saying that the Veteran's low back disability was both causally related to the 1974 in-service accident and aggravated by the service-connected right thigh disability (which causes right leg dominance and a gait pattern change). See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that medical reports "must be read as a whole" in determinations of adequacy). The Board finds Dr. F.G.’s opinion to be highly probative as he is a specialist in orthopedics and likely familiar with impact injury manifestations and gait mechanics; he also considered the Veteran’s statements as to onset, reviewed the STRs, and provided an adequate rationale for his opinion. Notably, there are no probative medical opinions of record to the contrary. In short, the Veteran had been diagnosed with a low back disability during the appeal period; he competently and credibly reported injury to his entire right side/back at the time of the in-service accident; and the most probative evidence of evidence of record, namely Dr. F.G.’s medical opinion, causally relates the low back disability to service and to the service-connected right thigh disability (by way of aggravation). Resolving any remaining reasonable doubt in the Veteran's favor, service connection for a low back disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d), 3.310. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a right knee disability. Again, the Veteran essentially contended that his claimed right hip, right knee, and neck disabilities were directly related to the well-documented in-service injury/accident in which he was thrown against a stanchion (or rail) while at sea in 1974. Alternatively, he asserted that such disabilities were proximately due to or aggravated by his service-connected right thigh disability, to include as a result of an altered gait pattern or posture. As an initial matter, during the appeal period, the Veteran had been diagnosed with degenerative arthritis of the right hip and degenerative arthritis of the cervical spine. See, e.g., December 2012 and January 2013 VA Examination Reports. With respect to the right knee, VA and private treatment records show right knee pain with functional limitations. Accordingly, the Veteran also had a right knee disability for service connection purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). With respect to in-service disease or injury, as noted above, STRs reflect that the Veteran was a victim of an accident at sea when he was thrown against a stanchion (or rail) on the deck of a ship. See August 1974 STRs and Personnel Records; see also Board Hearing Transcript. Although the initial injury was to the right thigh, the Veteran competently and credibly reported that he also injured the entire right side at that time. STRs do reflect complaints that his “right side from neck down to foot was injured” during the August 1974 accident. See April 30, 1976 STR. STRs also document right knee pain. The Board thus finds that the in-service injury requirement has been met in this case. The remaining question for consideration here is whether the Veteran’s neck/cervical spine, right hip, and right knee disabilities were related to service, or whether such were proximately due to or aggravated by the service-connected right thigh disability. With respect to the claimed neck/cervical spine disability, the record contains a November 2015 private opinion and examination from Dr. F.G., the Veteran’s orthopedic surgeon. After a thorough physical examination of the Veteran, as well as a review of the STRs and past medical history, Dr. F.G. essentially opined that the Veteran’s cervical spine disability was “present by reason of a gait pattern change.” Dr. F.G. then opined that the Veteran had a “causal nexus” to his service incident and the aforementioned diagnosis. In essence, when Dr. F.G.’s opinion is read as a whole and in the light most favorable to the Veteran, he is saying that the Veteran's neck disability was both causally related to the 1974 in-service accident and aggravated by the service-connected right thigh disability (which causes right leg dominance and a gait pattern change). See Acevedo, supra. The Board finds Dr. F.G.’s opinion to be highly probative as he is a specialist in orthopedics and likely familiar with impact injury manifestations and gait mechanics; he also considered the Veteran’s statements as to onset, reviewed the STRs, and provided an adequate rationale for his opinion. Significantly, there are no probative medical opinions of record to the contrary. As such, service connection for a cervical spine/neck disability is warranted. While Dr. F.G. did not directly address the right hip and right knee, based on his rationale, it is reasonable to assume that if Veteran’s altered gait mechanics and right leg weakness (resulting from his service-connected right thigh disability) contributed to his neck and low back disabilities, that such impairment(s) would also affect his right hip and right knee. Private treatment records note that the service-connected right thigh injury affected the right hip and right knee. During his lifetime, the Veteran consistently complained of right knee and right hip pain in association with his right thigh muscle injury; he also testified that his private orthopedic surgeon (presumably, Dr. F.G.) told him that he would have hip and knee problems because of right leg/thigh weakness, favoring the right side, and altered posture/gait. Based on the foregoing, and resolving all reasonable doubt in his favor, the Board finds that the Veteran’s right knee and right hip disabilities were, at the very least, aggravated by the service-connected right thigh muscle injury/hernia. In so finding, the Board notes that these claims could also arguably be granted on a direct incurrence and/or continuity of symptomatology (for the diagnosed right hip arthritis) basis given the well-documented in-service injury to the right lower extremity/side; the in-service complaints of right knee pain; the post-service documentation of lower right extremity/hip pain proximate to service (see, e.g., January 1976 VA examination, the Veteran reported “from hip down my whole [right] leg hurts.”); and the numerous, documented complaints of continued right knee and right hip symptomatology since service. See, e.g., 38 C.F.R. §§ 3.303(a),(b),(d), 3.307, 3.309(a). Regardless of the theory of entitlement, the criteria for service connection for right hip, right knee, and neck disabilities have been met. 5. Entitlement to service connection for a right shoulder disability. 6. Entitlement to service connection for a right hand disability. The Veteran primarily asserted that his right shoulder and right hand disabilities were proximately due to or aggravated by his service-connected right thigh disability, to include as a result of an altered gait pattern or posture. As an initial matter, during the appeal period, the Veteran had been diagnosed degenerative arthritis of the right shoulder and arthritis and fasciculations of the right hand. See January 2013 VA Examination Reports. Thus, the currently disability requirement has been met here. The remaining question for consideration here is whether the diagnosed right shoulder and right hand disabilities were proximately due to, or aggravated by the service-connected right thigh muscle hernia disability. On this question, the record contains a January 2013 VA opinion in which the examiner opined that the Veteran’s claimed conditions were less likely than not proximately due to or the result of the service-connected condition. The examiner reasoned that the shoulder and hand disabilities occurred much more recent and in different parts of the body. The Board recognizes that examiner did not provide an opinion as to aggravation and, to this extent, the opinion is not adequate. However, an addendum opinion regarding aggravation at this juncture would likely not provide any additional information as the Veteran cannot be physically examined. Further, there is no competent evidence of record of an association between (or aggravation of) the Veteran's right shoulder and right hand disabilities and his service-connected right thigh disability; for these reasons, a remand to accord a VA opinion is not necessary. Although the Veteran believed that his right shoulder and right hand disabilities were secondary to the service-connected right thigh disability, as a lay person, he had not shown that he had specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis, etiology, and causation/aggravation of arthritis are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his right shoulder and right hand disabilities is not competent medical evidence. Although not specifically raised by the Veteran, the Board has also considered whether the Veteran’s right shoulder and right hand disabilities began during service or were otherwise related to an in-service injury, event, or disease. In this case, the STRs are silent for complaints, treatment, or diagnoses related to the hand. While the Veteran did report intermittent right shoulder pain on separation examination in May 1976, objective examination of the shoulder was entirely normal. Immediately following separation from service, the Veteran filed a VA compensation claim for service connection. The Veteran’s May 1976 application for service connection made no mention of a right hand or right shoulder disability, nor did the subsequent September 1976 VA medical examination. In fact, the next mention of a right shoulder and/or right hand disability is not shown until approximately 2006, which is nearly 30 years after separation from service. See VA Treatment Records. Arthritis was diagnosed years later yet. See December 2012 and March 2013 VA Examination Reports. In short, the contemporaneous records establish that right hand and right shoulder disabilities were first manifest many years after separation. There is no medical opinion linking such disabilities to service. During his lifetime, the Veteran had not endorsed any continuity of right shoulder and right hand symptomatology during and/or since service. To the extent that any of the Veteran’s statements could be construed as such, the Board find the contemporaneous records to be far more probative and credible than any assertion of continuity and treatment. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claims of entitlement to service connection for right shoulder and right hand disabilities and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for a right arm disability. The Veteran contended that his claimed right arm disability was related to the service-connected right thigh disability. In this case, the evidence does not demonstrate that the Veteran was diagnosed with a right arm disability during the pendency of this appeal. Instead, the January 2013 VA examiner essentially concluded that the Veteran did not have a current diagnosis associated with his right arm (as opposed to the right shoulder for which there is a diagnosis); no functional impairment was noted. During the examination, the Veteran endorsed right shoulder, not right arm pain. A review of VA and private treatment records similarly reveals no right arm diagnosis offered during the pendency of this appeal. The Board has considered whether, in light of its grant of service connection for a neck/cervical spine disability, the Veteran had any associated cervical radiculopathy that would affect the right arm. However, the January 2013 VA cervical spine examination did not reveal any neurological deficits associated with the right upper extremity. In the absence of a current disability, further inquiry into the in-service event or nexus elements is rendered moot, and the appeal must be denied. In offering this conclusion, the Board has considered the Veteran's contention that he presents with a right arm disability; however, he lacks the requisite medical training and expertise to competently diagnose her observable symptoms. See Jandreau, supra. Instead, greater probative value is afforded to the medical evidence which again does not establish the existence of a right arm disability. The Board has also considered the Veteran's testimony/statements regarding right arm pain. However, the evidence of record shows that the pain does not impact his functional ability; in fact, the January 2013 VA examiner denied any such impact. Without a diagnosis or pain that impacts functional ability entitlement to service connection is denied. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 8. Entitlement to an evaluation in excess of 40 percent for residuals of right thigh femoral hernia. The Veteran sought a higher rating for residuals of a right thigh femoral hernia disability (hereinafter “right thigh disability”), currently assigned a 40 percent rating under Diagnostic Code 5314 as a disability of Muscle Group XIV. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Diagnostic Code 5314 provides evaluations for disability of Muscle Group XIV, consisting of the anterior thigh group: the sartorius, rectus femoris, vastus externus, vastus intermedius, vastus internus, and tensor vaginae femoris. The functions of these muscles is extension of the knee, simultaneous flexion of the hip and flexion of the knee, tension of the fascia lata and iliotibial (Maissiat's) band, acting with Muscle Group XVII in postural support of the body, and acting with the hamstrings in synchronizing the hip and knee. A slight disability warrants a noncompensable rating, a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 30 percent rating, and a severe disability warrants a 40 percent rating. See 38 C.F.R. § 4.73, Diagnostic Code 5314. Historically, the Veteran’s right thigh muscle injury has been noted to affect Muscle Group XIV. See June 2003 VA Examination (identifying hernial protrusion of the right vastus lateralis muscle); see also August 2007 VA Muscle Examination (identifying affected muscles as right lateral thigh vastus lateralis and tensor fascia lata). VA treatment records date through the appeal period document chronic right thigh pain and associated postural/gait problems. The Veteran underwent a VA hernia/muscle examination in April 2015; however, the Board does not find the examination report to be particularly probative as to the Veteran’s residuals. As an initial matter, the examiner entirely failed to discuss the Veteran’s primary muscle injury to the right upper thigh and erroneously indicated that the Veteran had never had an injury to a muscle of the pelvic girdle or thigh; he then referred to involvement of Muscle Group XII (which contemplates muscles of the foot and leg) without any explanation as to how foot or leg function would be affected by the upper thigh muscle herniation and without any reference to any specific foot or leg symptoms. Neither the Veteran nor the medical evidence has otherwise implicated involvement of the right foot/leg muscles. Rather, the evidence has consistently shown that the Veteran sustained herniation of the right thigh muscles, the function of which are expressly contemplated by Muscle Group XIV (DC 5314). In any event, the April 2015 examiner identified residual right thigh muscle hernia symptoms including minimal scar; some loss of the deep fascia; and some impairment of the muscle tonus. Muscle strength testing of the right lower extremity was normal (5/5) throughout. There was no atrophy. The Veteran did not use an assistive device. The Veteran reported that he was unable to climb ladders as much as he had in the past. The muscle injury was described as a fascia defect causing a herniation of muscle through the tear in the overlying fascia in his right thigh, with muscle going through the subcutaneous fascia covered by a well-healed scar (10 x 1 cm). Based on the foregoing, the Board finds that a rating in excess of 40 percent for a residuals of a right thigh femoral hernia is not warranted. The Veteran has been assigned the maximum evaluation available under Diagnostic Code 5314. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. See 38 C.F.R. § 4.56(c). All of these have been contemplated by the 40 percent rating currently assigned under Diagnostic Code 5314. The Board is unable to identify an additional or alternative Code for the symptoms, which warrants an additional compensable rating or a rating in excess of 40 percent for his right thigh disability. Notably, the Veteran is in receipt of a separate rating for an associated thigh scar, however, that rating is not currently under appeal. In reaching these determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher rating for residuals of a right thigh femoral hernia, the benefit of the doubt doctrine is not applicable, and the increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.