Citation Nr: 21013844 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-06 285 DATE: March 10, 2021 ORDER Entitlement to service connection for a bilateral hip disability, including as due to a service-connected disability, is denied. Entitlement to service connection for bilateral knee instability, including as due to a service-connected disability, is denied. Entitlement to service connection for a lumbosacral spine disability, including as due to service-connected post-operative left knee arthroscopy, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not experience any current bilateral hip or bilateral knee disabilities which could be attributed to active service or any incident of service, including as due to a service-connected disability. 2. The record evidence shows that the Veteran’s current lumbosacral spine disability is not related to active service and was not caused or aggravated by his service-connected post-operative left knee arthroscopy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hip disability, including as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 2. The criteria for entitlement to service connection for bilateral knee instability, including as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 3. The criteria for entitlement to service connection for a lumbosacral spine disability, including as due to service-connected post-operative left knee arthroscopy, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from March 1964 to December 1976, including in the Republic of Vietnam from July 1969 to July 1970, and from March 1980 to February 1997. A virtual Board hearing was held in December 2020 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Veteran’s hearing testimony, the Board finds that the issues on appeal should be characterized as stated above. Service Connection 1. Entitlement to service connection for a bilateral hip disability and for bilateral knee instability, each including as due to a service-connected disability The Board finds that the preponderance of the evidence is against granting the Veteran’s claims of service connection for a bilateral hip disability and for bilateral knee instability, each including as due to a service-connected disability. The Veteran contends that he incurred a bilateral hip disability and bilateral knee instability during active service and experienced continuous post-service disability. He alternatively contends that his service-connected post-operative left knee arthroscopy caused or aggravated (permanently worsened) his claimed left hip and left knee disabilities. He also alternatively contends that his service-connected right knee retropatellar pain syndrome caused or aggravated his claimed right hip and right knee disabilities. The most probative evidence shows instead that he does not experience any current disability of his hips or knees that could be attributed to active service or any incident of service, including as due to a service-connected disability. The available service treatment records show that, on left knee x-rays taken in March 1985, there was a longitudinal line of thin calcification in medial compartment of knee joint, degenerative medial meniscus, and “a patchy calcification posteriorly.” On outpatient treatment in January 1995, the Veteran’s complaints included right knee pain of unknown injury origin. Objective examination of the right knee showed no deformity, no joint line tenderness, and no laxity. The diagnosis was resolving right knee pain. The Veteran’s service treatment records also show that he complained of and sought treatment for an anterior cruciate ligament (ACL) deficient left knee during active service. For example, on outpatient treatment in February 1995, he reported that he wanted to postpone undergoing left knee ACL reconstruction surgery but might consider doing it later. The Veteran had in-service left knee arthroscopy with debridement and chondral drilling in March 1996. At that time, the diagnoses were a torn ACL of the left knee, a torn medial meniscus of the left knee, and grade IV chondral defect of the medial femoral condyle of the left knee. Following surgery and post-surgery rehabilitation, on outpatient treatment in October 1996, the in-service clinician stated that the Veteran was doing relatively well. He denied increased pain or discomfort and complained of left knee instability. A 3-year history of left knee ACL tear was noted but surgery was discouraged due to the Veteran’s age. Objective examination showed a full range of motion in the left knee, no effusion, and mild tenderness at the anterior joint line. The diagnosis was status-post left knee arthroscopy. At his separation physical examination in January 1997, prior to his separation from service in February 1997, the Veteran reported an in-service medical history of knee arthritis. He wore an orthopedic brace on his left knee. The in-service clinician noted that the Veteran also reported a history of bilateral knee instability, left knee greater than right knee. Physical examination showed a torn left ACL for which he was on a P-3 profile. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a bilateral hip disability and for bilateral knee instability, each including as due to a service-connected disability. Contrary to the Veteran’s lay assertions and Board hearing testimony, the more probative evidence shows instead that he does not experience any current bilateral hip disability or bilateral knee instability which is related to active service or any incident of service, including as due to a service-connected disability. On VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in August 2018, the Veteran’s complaints included right knee pain and looseness. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran denied experiencing flare-ups of bilateral knee pain. Range of motion testing of the bilateral knees was normal with no additional limitation of motion on repetitive testing. Physical examination of the bilateral knees showed no pain, no tenderness to palpation, no evidence of pain with weight bearing, no objective evidence of crepitus, 5/5 muscle strength, no muscle atrophy or ankylosis, and no joint instability. X-rays showed no arthritis. There was no objective evidence of pain on non-weight bearing in both knees. Passive range of motion was the same as active range of motion in both knees. The VA examiner opined that it was less likely than not that the Veteran’s claimed bilateral knee instability is related to active service or any incident of service, including as due to a service-connected disability. The rationale for this opinion was, “There is no clinical evidence to support a diagnosis at this time of bilateral knee instability.” The rationale also was that the Veteran did not have bilateral knee instability “and none is suspected.” The rationale further was based on a review of the claims file. The diagnoses were right knee retropatellar pain syndrome and post-operative left knee arthroscopy. On VA hip and thigh conditions DBQ in August 2018, the Veteran denied experiencing any current bilateral hip symptoms. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. A history of bilateral hip pain during active service was noted. The Veteran denied experiencing any flare-ups of bilateral hip pain. Range of motion testing of the bilateral hips was normal with no additional limitation of motion on repetitive testing. Physical examination of the hips showed no pain, no tenderness to palpation, no pain on weight bearing or with crepitus, 5/5 muscle strength, and no muscle atrophy or ankylosis. There was no objective evidence of pain on non-weight bearing in either hip. Passive range of motion was the same as active range of motion in both hips. The VA examiner concluded, “There is no clinical evidence to support a diagnosis at this time for the claim of right or left hip condition.” This examiner also concluded that the Veteran did not have a current diagnosis of a bilateral hip disability. This examiner opined that it was less likely than not that the Veteran’s claimed bilateral hip disability is related to active service or any incident of service, including as due to a service-connected disability. The rationale for this opinion was based on a review of the claims file. The rationale also was that the “Veteran does not have a diagnosed left hip condition…[and] does not have a diagnosed right hip condition.” The Veteran and his service representative asserted in testimony at his virtual Board hearing in December 2020 that his complaints of hip pain constituted a disability under Saunders. See Board hearing transcript dated December 7, 2020, at pp. 10. The record evidence does not support these assertions because the August 2018 VA examiner specifically found no functional limitations imposed by the Veteran’s claimed bilateral hip disability. Additional private outpatient treatment records associated with the Veteran’s claims file following his Board hearing document ongoing complaints of hip pain. None of the private treating clinicians concluded that these complaints imposed functional limitations on the Veteran. Therefore, while the Veteran is certainly competent to report his symptomatology, the question of whether there is functional impairment is better answered by a medical professional with expertise. Therefore, the medical records, including VA examinations, are afforded more probative value than the Veteran’s lay assertions. Thus, the Board finds that service connection is not warranted even under the low threshold of Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a bilateral hip disability or bilateral knee instability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). The more probative evidence shows that the Veteran does not experience any current disability due to either his claimed bilateral hip disability or his claimed bilateral knee instability which could be attributed to active service or any incident of service, including as due to a service-connected disability. The August 2018 VA examiner specifically opined that it was less likely than not that the Veteran’s claimed bilateral hip disability and his claimed bilateral knee instability were related to active service. All of these opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran finally has not identified or submitted any equally probative evidence demonstrating his entitlement to service connection for a bilateral hip disability or for bilateral knee instability, each including as due to a service-connected disability. Thus, the Board finds that service connection for a bilateral hip disability and for bilateral knee instability, each including as due to a service-connected disability, is not warranted. 2. Entitlement to service connection for a lumbosacral spine disability, including as due to service-connected post-operative left knee arthroscopy The Board finally finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for a lumbosacral spine disability, including as due to service-connected post-operative left knee arthroscopy. The Veteran contends that he incurred a lumbosacral spine disability during active service and experienced continuous post-service disability. He alternatively contends that service-connected post-operative left knee arthroscopy caused or aggravated (permanently worsened) his current lumbosacral spine disability. The more probative evidence does not support his assertions of an etiological link between a lumbosacral spine disability and active service, including as due to service-connected post-operative left knee arthroscopy. It shows instead that, although the Veteran currently experiences a lumbosacral spine disability, it is not related to active service or any incident of service, including as due to service-connected left knee arthroscopy. The Veteran’s service treatment records show no complaints of or treatment for a lumbosacral spine disability during active service. These records also show that, at his separation physical examination in January 1997, he reported an in-service medical history of recurrent back pain. Physical examination showed a decreased range of motion in the spine. The Board notes here that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The post-service evidence also does not support granting service connection for a lumbosacral spine disability, including as due to service-connected post-operative left knee arthroscopy. The Board acknowledges that the Veteran has complained of and sought treatment for a lumbosacral spine disability in the decades since his service separation. The Board also acknowledges that service connection is in effect for post-operative left knee arthroscopy. However, the more probative evidence shows that the current lumbosacral spine disability is not related to active service or any incident of service, including as due to service-connected post-operative left knee arthroscopy. For example, on private outpatient treatment in November 2006, the Veteran complained of low back pain with radicular symptoms into the left hip and knee during ambulation. He rated his pain as 5/10 on a pain scale (with 10/10 being the worst imaginable pain). Range of motion testing of the lumbosacral spine was within normal limits with pain in the left knee on flexion. Physical examination showed deep tendon reflexes within normal limits, strength of the bilateral lower extremities within normal limits, bilateral straight leg raising to 65 degrees without pain, tightness in the bilateral hip external rotators, and no tenderness to palpation. The diagnosis was lumbago. A private outpatient magnetic resonance imaging (MRI) scan of the Veteran’s lumbosacral spine taken in October 2012 showed, among other things, multilevel degenerative disc disease and degenerative facet arthrosis at L3-S1. On VA back (thoracolumbar spine) conditions DBQ in August 2018, the Veteran’s complaints included low back pain with occasional numbness in the toes of the left foot. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported flare-ups of low back pain with occasional increased pain. He experienced functional loss or functional limitation of the lumbosacral spine by limiting long walks. Range of motion testing for the lumbosacral spine was normal for his age and body habitus with no pain and no additional limitation of motion on repetitive testing. Physical examination showed 5/5 muscle strength, no muscle atrophy, normal reflexes and sensation, negative straight leg raising bilaterally, and no radiculopathy, ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. X-rays showed arthritis. The Veteran’s 2012 MRI was reviewed. There was no objective evidence of pain on weight-bearing. Passive range of motion was the same as active range of motion. The VA examiner opined that it was less likely than not that the Veteran’s lumbosacral spine disability is related to active service or any incident of service, including as due to service-connected post-operative left knee arthroscopy. The rationale for this opinion was based on a review of the claims file. The rationale also was, “[T]he Veteran’s back condition is a result of age and not due to his knee condition.” The diagnoses were degenerative joint disease and degenerative facet arthrosis and degenerative disc disease. On VA back (thoracolumbar spine) conditions DBQ in December 2019, the Veteran’s complaints included low back pain with activity and radiating pain to the left leg with numbness in the toes. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran experienced flare-ups of low back pain which he described as worsening pain “and I have to sit down.” He also experienced functional loss or functional impairment. Physical examination showed 5/5 muscle strength, no muscle atrophy, normal reflexes in the right knee and ankle, hypoactive reflexes in the left knee, absent reflexes in the left ankle, normal sensation, negative straight leg raising bilaterally, mild numbness of the left lower extremity, and no ankylosis, neurologic abnormalities, or intervertebral disc syndrome. X-rays showed arthritis. The Veteran’s 2012 MRI was reviewed. There was no objective evidence of pain on weight-bearing. Passive range of motion was the same as active range of motion. The VA examiner opined that it was less likely than not that the Veteran’s lumbosacral spine disability is related directly to active service or any incident of service, to include his reported in-service medical history of low back problems noted at his January 1997 separation physical examination. The rationale for this opinion was based on a review of the claims file. The rationale also was that what the Veteran reported at his January 1997 separation physical examination was a separate back condition from the conditions which he currently experienced in his low back. The diagnoses were spinal stenosis, degenerative disc disease, and left lower extremity radiculopathy. The Veteran testified at his virtual Board hearing in December 2020 that he reported a medical history of low back problems at his retirement (or separation) physical examination. See Board hearing transcript dated December 7, 2020, at pp. 5. (Continued on the next page)   Despite the lay assertions and Board hearing testimony to the contrary, the most probative evidence shows that the Veteran’s current lumbosacral spine disability (variously diagnosed as spinal stenosis, degenerative disc disease, degenerative joint disease, and degenerative facet arthrosis) is not related to active service or any incident of service, including as due to service-connected post-operative left knee arthroscopy. VA examiners in August 2018 and in December 2019 both opined that it was less likely than not that the Veteran’s current lumbosacral spine disability is related to active service or any incident of service, including as due to service-connected post-operative left knee arthroscopy. The August 2018 VA examiner specifically found that the Veteran’s current lumbosacral spine is due to his age. The December 2019 VA examiner specifically found that the Veteran’s current lumbosacral spine disability was a separate condition from the medical history of in-service back problems which he reported at his separation physical examination several decades earlier in January 1997. All of these opinions were fully supported. See Stefl, 21 Vet. App. at 124. The opinions provided by medical professionals are more probative than the Veteran’s lay assertions. The Veteran finally has not identified or submitted any equally probative evidence demonstrating his entitlement to service connection for a lumbosacral spine disability, including as due to his service-connected post-operative left knee arthroscopy. Thus, the Board finds that service connection for a lumbosacral spine disability, including as due to service-connected post-operative left knee arthroscopy, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.