Citation Nr: 21014897 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-15 458 DATE: March 16, 2021 ORDER Entitlement to service connection for a lower back disability is denied. Entitlement to service connection for a left hip disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s lower back disability 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 otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s left hip disability 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 otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for lower back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left hip disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1979 to August 1983. The Board of Veterans’ Appeals (Board) previously remanded these issues in July 2020. The Board also remanded the issue of service connection for a jaw disability, but the agency of original jurisdiction granted this issue on remand, and it is not on appeal. The Board previously held a hearing on the jaw issue in March 2017, but the Veteran did not request a hearing as to the issues on appeal today. The Veteran was previously represented by attorney A.S. While on remand, the attorney notified VA that he was withdrawing from representation of the Veteran. As this withdrawal was after the Board had remanded, but prior to return of the issue to the Board, 38 C.F.R. § 20.6(b) permits the representative to withdraw by complying with the provisions of 38 C.F.R. § 14.631. Withdrawal under 38 C.F.R. § 14.631(c) is permitted if notice is given and the withdrawal does not adversely impact the client’s interests. As written notice was given to both the Veteran and VA, and there is no apparent adverse impact to the claimant’s interests, the withdrawal is effective and attorney A.S. no longer represents the Veteran.   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). 1. Entitlement to service connection for a lower back disability The Veteran contends that his degenerative joint disease of the lumbar spine was caused by the stress and strain of active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. VA most recently examined the Veteran in October 2020. The Veteran was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. The examiner reported a date of onset of 1989 and recorded the Veteran’s statement that the pain started after service. In a separate opinion, the examiner opined that the Veteran’s back was less likely than not related to service. She explained that the Veteran’s role in service performing operations of the retail space in ships would not require heavy strenuous activities that could be associated with the early onset of arthritis. Together with the Veteran’s lack of traumatic injury and post-service onset, the examiner found his case more closely aligned with an onset due to post-service occupational and recreational activities. The examiner’s opinion is entitled to substantial weight. In addition to being a trained medical professional, the examiner took into account the specific nature of the Veteran’s circumstances and explained why those circumstances made it less likely than not that his back was caused by service. The Veteran believes that his back condition is related to service and opined that it was possibly due to the stress and strain of being on a ship. The issue is medically complex, however, as it requires knowledge of pathology of a chronic disease. The record does not show that the Veteran has medical training or experience and such an opinion is therefore outside the competence of Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the to the VA examiner. VA previously examined the Veteran in March 2020. The examiner wrote that the Veteran reported the onset of back pain after the military. The examiner also wrote, however, that the date of onset was in 1982. This is inconsistent with the statement that symptoms began after service as the Veteran was in service in 1982. As the Veteran consistently has stated that his back symptoms began after service, the Board concludes that the 1982 date identified was in error and that the onset was, in fact, after service. The later onset of the Veteran’s back disorder is further evidenced by his medical records. In several VA medical records dated from September 2011, the Veteran reported that he had injured his back approximately 20 years prior (or around 1991). This is further supported by a May 1995 note that he had lower back pain that started prior to admission. These records indicate a start to the Veteran’s lower back pain in the 1990s, well after service. Because the weight of the evidence is against a finding that the Veteran’s back condition began during service or is related to service, direct service connection must be denied. In addition to direct service connection, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of arthritis, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, as discussed above, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Accordingly, presumptive service connection must also be denied. 2. Entitlement to service connection for a left hip disability The Veteran contends that his left hip disability was caused by the stresses and strains of active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the left hip the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. VA most recently examined the Veteran in October 2020. The Veteran reported that the onset of his bilateral hip pain began after his time on active duty and wasn’t specific to any injury or trauma. In a contemporaneous opinion, the examiner opined that the Veteran’s time in service did not cause his hip pain. In particular, the examiner opined that the Veteran’s position (activities related to his duty station) did not require extensive strenuous physical activity and there was nothing in the Veteran’s history or records that indicated a hip injury in service. The examiner’s opinion is entitled to weight as it is the opinion of a trained medical provider with specific consideration of the Veteran’s circumstances and claim. It weighs against service connection as the examiner opined against nexus. The Veteran believes that his left hip condition is related to service and opines that it was possibly due to the stress and strain of being on a ship. The issue is medically complex, however, as it requires knowledge of pathology of a chronic disease. The record does not show that the Veteran has medical training or experience and such an opinion is therefore outside the competence of Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the to the VA examiner. VA previously examined the Veteran in March 2020, but the examiner could not come to a conclusion stating that “more evidence was needed.” This opinion weighs neither for nor against service connection. Medical records from September 2011 stated that the Veteran complained of hip pain from an accident 20 years ago. This would both indicate a post-service onset and an intervening cause (an accident), which weighs against service connection. The records do not otherwise suggest the Veteran’s hip pain was attributable to service. As the weight of the evidence is against a finding that the Veteran’s left hip condition began during service or is related to service, direct service connection must be denied. In addition to direct service connection, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of arthritis, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, as discussed above, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Accordingly, presumptive service connection must also be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. In the Board’s prior July 2020 remand instructions, it required that the examiner “must address the Veteran’s specific contention that the stresses and strains of active service caused his . . . knee disabilities.” Although the hip and back examinations addressed this contention, the examination for the knees did not. The Veteran is entitled to substantial compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is necessary for a supplemental opinion to address the contentions. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral knee disability. The examiner must opine whether it is at least as likely as not that the disabilities had their initial onset in service or otherwise related to the Veteran’s active service. The examiner must address the Veteran’s contention that the stresses and strains of active service caused his knee disability. This may be accomplished by, for example, discussing the physical requirements of his role in active duty and whether they would impact his knees after service. The examiner is advised that service treatment records from January 1982 show that the Veteran complained of left knee pain and tendonitis was indicated, and in March 1983 he complained of knee pain and had an assessment of knee bruise. The examiner is also advised that post-service treatment records show that the Veteran has osteoarthritis of the knees. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.