Citation Nr: 21012690 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-12 282 DATE: March 5, 2021 ORDER Entitlement to service connection for a hip disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. FINDINGS OF FACT 1. The Veteran has left hip osteoarthritis that was not incurred during service and that did not result from an in-service injury, illness, or event, to include repetitive impact and strain from duties as a paratrooper during active duty. 2. The Veteran has right knee osteoarthritis that was not incurred during service and that did not result from an in-service injury, illness, or event, to include repetitive impact and strain from duties as a paratrooper during active duty. 3. The Veteran has left knee osteoarthritis that was not incurred during service and that did not result from an in-service injury, illness, or event, to include repetitive impact and strain from duties as a paratrooper during active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for a hip disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1977 through December 1984. The issues on appeal arise from the Veteran’s March 2013 claim and a January 2014 rating decision issued by the agency of original jurisdiction (AOJ). The Board denied the Veteran’s claims in December 2018. That decision was subsequently appealed by the Veteran to the United States Court of Appeals for Veterans Claims (CAVC). In March 2020, CAVC granted a Joint Motion for Partial Remand (JMPR), vacated the Board’s December 2018 decision, and remanded the issues to the Board for further development and adjudication consistent with the JMPR. The matter was remanded by the Board for further development in September 2020. The AOJ has undertaken the ordered development and the matter now returns to the Board again for review. Service Connection 1. Entitlement to service connection for a hip disorder. The Veteran claims entitlement to service connection for an unspecified hip disorder. He theorized in his Notice of Disagreement that the claimed disorder resulted from repetitive impact and strain from his activities as a paratrooper during active duty. During a November 2020 hip examination, the Veteran reported that he began experiencing left hip pain approximately 10 years before the examination. Consistent with the reported history, the Veteran’s service treatment records are silent for any hip-related complaints, treatment, diagnoses, or findings during active duty. Likewise, the post-service treatment records indicate no hip-related complaints or treatment prior to October 2010. At that time, the Veteran reported that he was having left hip pain that he believed radiated from his low back. There is no indication in the records that the Veteran sought any further treatment or evaluation for his hip until the November 2020 examination. Further, there is no indication that there exist any additional outstanding VA or private treatment records related to the Veteran’s hips. The November 2020 examination revealed objective findings of pain and decreased motion as well as radiological findings that were consistent with osteoarthritis. An examination of the right hip was normal, and indeed, the Veteran reported no history of any problems in his right hip. Indeed, right hip motion was found to be within normal limits with no evidence of pain on weight bearing, no evidence of crepitus, and no localized tenderness or pain on palpation. The examiner opined that it is less likely as not that the Veteran’s left hip osteoarthritis was incurred during service or caused by an in-service injury, illness, or event. As rationale, the examiner explained that there is simply no evidence in the record that the Veteran has had a left hip disorder prior to the findings from the examination. Given the same, the examiner appears to conclude that the evidence does not support the finding that the hip disorder was initially incurred during service or that it resulted from an in-service event. Notably, the Veteran’s attorney argued in an April 2020 filing with CAVC that the Veteran has explained that the reason why he did not report or seek treatment for his hip during service was because it was “customary in the infantry not to complain about anything. So it was fround (sic) upon to go to sick call.” The Board is sensitive to this line of argument; nonetheless finds it unavailing in this case. First, the Board notes that the service treatment records show that the Veteran was in fact treated during service for various complaints and conditions including ankle sprain, ear infections, multiple upper respiratory infections, a skin rash, abdominal pain, eye problems, and an elective vasectomy. The Board does not comment upon the Veteran’s treatment for those conditions, however, does note that the Veteran was not unable to seek treatment as needed for symptoms and disorders. As a corollary, the Board observes also that the service treatment records pertaining to those symptoms and conditions contain no reference to any hip-related problems. Second, the Board notes also that multiple flight examinations conducted over the course of the Veteran’s active duty and the Veteran’s active duty revealed no abnormalities in the Veteran’s hips or lower extremities. Indeed, no history of any hip-related problems were reported by the Veteran during any of those examinations. Third, the Board sees no indication that the assembled service department records are incomplete. Finally, to the extent that the Veteran’s attorney seems to be suggesting that the Veteran may have sought treatment during service for hip-related complaints, such an assertion would be wholly inconsistent with the Veteran’s own reported history that he first began experiencing hip-related symptoms 10 years before the 2020 examination. Under the circumstances, the evidence simply does not support any assertion that the Veteran incurred a hip injury during service. The Veteran is also not competent to provide a probative opinion as to the complex medical question of whether his left hip osteoarthritis, for which he reportedly began experiencing related symptoms decades after his separation from service, is related etiologically to impact and strain from activities performed during his active duty service. In contrast, the examiner’s negative opinion is not contradicted by any contrary opinion in the record, and moreover, is consistent with the other evidence in the record, to include the Veteran’s own self-reported history. For these reasons, the Board is persuaded by the examiner’s opinion. The evidence shows that the Veteran has left hip osteoarthritis that was not incurred during service and did not result from an in-service injury, illness, or event, to include repetitive impact and strain from paratrooper duties. The Veteran is not entitled to service connection for a hip disorder. To that extent, this appeal is denied. 2. Entitlement to service connection for right and left knee disorders. The Veteran also claims entitlement to service connection for disorders in his right and left knee. Those claims are also supported by the Veteran’s assertion that the disorders in his knees resulted from repetitive impact and strain from performing duties as a paratrooper during active duty. Like his hip condition, the Veteran reported during a November 2020 knee examination that he began experiencing symptoms in his knees approximately 10 years before the examination. The examination revealed various objective findings including pain, decreased motion in both knees, and radiological findings that were consistent with osteoarthritis. The examiner opined, however, that it is less likely as not that the disorder in either knee was incurred during service or caused by an in-service injury, illness, or event. The examiner noted that there is simply no evidence in the record showing any complaints, treatment, or diagnoses for either of the Veteran’s knees prior to the examination. On that basis, the examiner apparently concluded that the arthritis in the Veteran’s knees was not likely related to the Veteran’s active duty. As noted above in the Board’s analysis concerning the Veteran’s claimed hip disorder, the Veteran has explained that the reason why he did not report or seek treatment during service was because it was “customary in the infantry not to complain about anything. So it was fround (sic) upon to go to sick call.” The Veteran’s attorney apparently applied this line of argument in relation to the Veteran’s knee claims as well as the hip claim. The Board finds it unavailing under similar analysis as that undertaken above. As mentioned, the service treatment records show that the Veteran was able and willing to seek treatment for various complaints and conditions as needed during service, and therefore, his argument that he was hesitant to seek treatment for any knee-related complaints during service is inconsistent with the contemporaneous evidence which outlines treatment for various conditions. The Veteran’s statements in this regard do not seem credible. Even to the extent that the Veteran did seek treatment for various other conditions during service, the records pertaining to such treatment do not reflect even an incidental reference or findings related to the Veteran’s knees. The Board notes also that multiple flight examinations conducted over the course of the Veteran’s active duty and the Veteran’s active duty revealed no abnormalities in the Veteran’s knees or lower extremities. No history of any knee-related problems were reported by the Veteran during any of those examinations. Also, to the extent that the Veteran’s attorney seems to be suggesting that the Veteran may have been treated during service for in-service knee complaints, such an assertion is contradicted by the Veteran’s own medical history as reported during the 2020 knee examination. Again, there is no indication in the assembled service department records that additional records are outstanding. Overall, the evidence does not support the conclusion that the Veteran incurred an injury to either of his knees during service. The Board is sympathetic to the Veteran’s belief that his present knee conditions are related to his active duty service. Nonetheless, the Veteran is not competent to provide a probative opinion as to the complex medical question of whether the arthritis in his knees, for which he reportedly began experiencing symptoms decades after his separation from service, is related etiologically to impact and strain from activities performed during his active duty service. For this reason, the Veteran’s bare assertion of the existence of such an etiological relationship is not entitled to significant probative weight. In contrast, the examiner’s negative opinion is not contradicted by any contrary opinion, and also, is supported by the other evidence in the record, to include the Veteran’s own self-reported history. The examiner’s negative etiology opinion is therefore persuasive. The evidence shows that the Veteran has osteoarthritis in his knees that was not incurred during service and did not result from an in-service injury, illness, or event, to include repetitive impact and strain from duties as a paratrooper. The Veteran is not entitled to service connection for disorders in his right or left knee. To that extent also, this appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran claims that he is entitled to service connection for a left shoulder disorder. In support of his claim, he has asserted that he sustained a left shoulder injury during service, and indeed, the Board determined previously in the vacated December 2018 decision that the Veteran was competent to report the occurrence of an injury. On that basis, the Board apparently conceded the occurrence of an in-service left shoulder injury. Additionally, the Board observes that the service treatment records show that the Veteran was evaluated and treated during service in June 1980 for reported left shoulder pain. No specific diagnosis was rendered at that time. As part of the development ordered by the Board in the September 2020 remand, the Veteran was afforded a left shoulder examination in November 2020. The examination revealed various findings that were diagnosed as left shoulder acromioclavicular joint osteoarthritis, rotator cuff tendonitis, and impingement syndrome. The examiner opined that it is less likely as not that the Veteran’s disorders were incurred during service or that they were caused by an in-service injury, illness, or event. The examiner’s rationale, however, appears to be based entirely on the examiner’s belief that the service treatment records note no in-service left shoulder injuries. Accordingly, the examiner’s opinion and rationale is based on an incorrect factual premise and therefore does not assist the Board in its review of the issue. As such, VA should obtain a new medical opinion as to whether the conditions in the Veteran’s left shoulder were incurred during service, or alternatively, were caused by an in-service injury, illness, or event, to include the left shoulder complaints documented in the June 1980 service treatment record. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his claim on appeal. Records for VA treatment received by the Veteran since December 2020 and any relevant private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. After the development ordered in Paragraph 1 is complete, obtain a medical opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s left shoulder acromioclavicular joint osteoarthritis, rotator cuff tendinitis, and/or impingement syndrome were incurred during his active duty service or were caused by an in-service injury, illness, or event, to include the left shoulder complaints documented in the Veteran’s June 1980 service treatment records. The claims file should be made available to the reviewing clinician and the reviewing clinician should review the claims file in forming the requested opinion. The reviewing clinician should provide a detailed rationale that explains fully all of the reasons for the given opinions. If the reviewing clinician determines that a full examination of the Veteran’s left shoulder is necessary in order to render the requested opinions, then such an examination should be afforded to the Veteran. (Continued on the next page)   3. After completion of the above development, the issue on appeal should be readjudicated. If the determination remains averse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Lee 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.