Citation Nr: 21014987 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-03 356A DATE: March 16, 2021 ORDER Entitlement to service connection for a left hip disability, to include arthritis, is denied. Entitlement to service connection for a left leg disability is denied. FINDINGS OF FACT 1. The Veteran’s left hip disability, to include arthritis, clearly and unmistakably preexisted service and was not permanently aggravated by his active service. 2. The Veteran’s left leg disability clearly and unmistakably preexisted service and was not permanently aggravated by his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disability, to include arthritis, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a left leg disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1967 to April 1969, to include service in the Republic of Vietnam. This case comes before the Board of Veterans Appeals (Board) on appeal of a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2015, October 2017 and December 2019, at which time the issues on appeal were remanded for additional development. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Additionally, In January 2015, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of that hearing is associated with the claims file. In a January 2021 letter, the Veteran was notified that he had the option of requesting another hearing before a VLJ who would ultimately decide his claims. The Veteran did not respond, as requested, thus the Board will proceed with adjudication of the claims on appeal. See 38 C.F.R. § 20.707 (2019). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.303 (2019). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111 (2018); 38 C.F.R. § 3.304 (2019). Only conditions recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such a condition. 38 C.F.R. § 3.304(b)(1) (2019). When a condition is not noted on entry into service, the burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Such a rebuttal is required under circumstances where, for instance, childhood treatment records or a medical opinion notes that a condition pre-existed service. A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153 (2018). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (2019). Under 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to incurrent causes. Continuity of symptomatology is required only where the condition noted during service is not in fact shown to be chronic or the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (2013). Left Hi and Left Leg Disabilities The Veteran asserts that his left hip disorder, to include arthritis, is related to his active service. Specifically, the Veteran asserts that he seriously injured his leg as a result of a fall in Vietnam. The Veteran’s service treatment records (STRs) reveal that his pre-induction examination report reflected a physical profile of “1” for the lower extremities. As such, the Board finds that the Veteran is presumed sound at the time of his entrance into service. 38 C.F.R. § 3.304(b) (2019). Therefore, the question before the Board is whether the presumption of soundness is rebutted. The Veteran’s April 1969 separation examination report reflected a physical profile of “3” for the lower extremities. The Veteran’s separation examination also revealed a diagnosis of calcific bursitis of the left hip secondary to a pin in the left femur following an auto accident in 1964, and that he was placed on profile in May 1968, during his time in Vietnam. In April 2013, the Veteran was afforded a VA examination for hip and thigh conditions. At that time, the Veteran reported that the screws located in his left femur intramedullary (IM) rod became loose during his active service and the rod was removed after service. The Veteran also stated that he had pain, aching, and frequent cramps in his thigh area. The VA examiner reported that the Veteran did not have a current diagnosis of a hip or thigh condition. However, the VA examiner assessed that the Veteran’s claimed condition was less likely than not caused by his active service. The VA examiner reasoned that the diagnosed disorder was more likely than not the result of a preexisting femur fracture and repair over time and that the femur disorder was neither reported on the Veteran’s entrance examination or being considered as a preexisting disorder. During the Veteran’s January 2015 Board hearing, he testified that he informed the medical examiner that he had a pin from his knee to his hip upon being drafted. The Veteran also testified that his leg began to bother him after a fall in Vietnam and that the screws in his leg became loose during his time in the service. Further, the Veteran testified that he guessed his left leg was three-quarters of an inch shorter than his right leg due to his pin. In January 2016, the Veteran was afforded a VA examination for hip and thigh conditions. At that time, the Veteran reported that he suffered a left femur fracture due to a motor vehicle accident prior to the military. The Veteran also reported that he the pins in his leg began to come out after being ambushed in Vietnam, came out more while playing basketball in 1970, and were eventually removed post-service. The VA examiner noted that the Veteran had degenerative arthritis in his left hip. However, the VA examiner opined that the Veteran’s left hip disability was less likely than not incurred in or caused by his active service. The VA examiner reasoned that there was no objective evidence of a military injury or fall; that the Veteran had temporary aggravation of a preexisting condition, as he was not receiving medical care for a current left hip condition; and, that he had to have hardware removal post-military. The VA examiner also opined that the Veteran’s left hip disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by his active service. The VA examiner primarily reasoned that the Veteran’s records documented that the Veteran suffered a comminuted fracture of his left femur prior to active duty, that he had temporary aggravation during his time in Vietnam, his post-service hardware removal was due to an incident while playing basketball, and his post-military employment was as a truck driver for which he had documented workmen’s compensation for a back condition. The VA examiner also reasoned that the Veteran’s mild degenerative joint disease (DJD) of the left hip was consistent with age and that his records, at the time, reflected treatment for chronic back condition and not chronic hip condition. In January 2016, the Veteran was afforded a VA examination for knee and lower leg conditions. At that time, the Veteran reported that the onset of his condition was two to three years prior to the examination and that he had intermittent moderately severe pain every few months. The VA examiner noted that the Veteran had a left knee strain. However, the VA examiner opined that the Veteran’s leg disability was less likely than not incurred in or caused by his active service. The VA examiner reasoned that there was no objective evidence of a military injury or fall. The VA examiner also opined that the Veteran’s leg disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by his active service. The VA examiner reasoned that the Veteran did not have problems with his leg until he reached Vietnam, that the current left leg symptoms were more than likely a combination of his pre-military left leg fracture and his post-military back condition, and that there was no evidence of left knee arthritis. In a June 2018 addendum opinion, a VA examiner opined that the Veteran’s left hip and left knee disabilities clearly and unmistakably existed prior to, and were not aggravated beyond their natural progression by, his active service. The VA examiner primarily reasoned that the Veteran’s military records documented that he had an injury to his left femur prior to his active service. The VA examiner also noted the Veteran’s complaints of minor discomfort with running and being accommodated with light duty status represented a temporary aggravation. Additionally, the VA examiner noted that the August 2012 magnetic resonance imaging (MRI) of the Veteran’s lower joint and knee documented a history of a crush injury 15 years prior. Ultimately, the VA examiner concluded that the Veteran’s left hip and leg conditions were more likely due to a direct injury or overuse because the Veteran only had minor symptoms consistent with the normal progression of the pre-existing condition until the time of a crush injury and/or work injury following active military duty. In a July 2018 statement, a former fellow soldier stated that the Veteran fell and injured himself while carrying him to safety in Vietnam. In a July 2019 VA addendum opinion, a VA examiner opined that the Veteran’s left hip condition was less likely than not incurred in or caused by his active service. The VA examiner reasoned that the Veteran’s military records documented that he was status post intramedullary rod to his left femur prior to his active service. The VA examiner also reasoned that the Veteran’s diagnosis of left hip arthritis, many years following active duty, was likely due to his pre-military femur fracture and his post-military years of dump truck driving. The VA examiner noted that the Veteran’s orthopedic system was within normal limits for his age. Additionally, the VA examiner assessed that the Veteran’s claimed conditions clearly and unmistakably existed prior to, and were not aggravated beyond their normal progression by, his active service. The VA examiner reasoned that the Veteran’s diagnosis of pain was due to the intramedullary rod in the left femur and noted the May 1968 diagnosis of calcified bursitis. The VA examiner also found that there was no separate and distinct hip injury during active duty. Ultimately, the VA examiner explained that those notations represented temporary, and not permanent, aggravation at best as there was no further sequela. The VA examiner also noted that there were no left knee problems during active duty nor did the Veteran’s separation examination document knee problems. Further, the VA examiner assessed that the Veteran’s left lower extremity radiculopathy likely resulted from a post-military lumbar spine condition and noted his post-service employment as a truck driver. In March 2020, the Veteran was afforded VA examinations for hip and thigh, and peripheral nerve conditions. At that time, the Veteran reported that he had left hip and left upper leg cramping and pain that had worsened since his time in service. The Veteran also reported that he noticed intermittent burning and stinging to his bilateral lower extremities approximately 10 years prior to the examination. The VA examiner noted the Veteran’s diagnoses of status post intramedullary rod to the left femur with removal, calcific bursitis, and degenerative arthritis. However, the VA examiner opined that the Veteran’s hip and leg disabilities were less likely than not incurred in or caused by his active service. The VA examiner reasoned that the Veteran’s in-service documentation indicated that his condition was from an injury prior to service. The VA examiner also assessed that the Veteran’s hip disorder was related to the pre-service intermedullary rod placement. The VA examiner further assessed that the Veteran’s left leg condition, diagnosed as lumbar radiculopathy, was related to a lumbar condition as evidenced by an August 2017 clinical evaluation. The March 2020 VA examiner also opined that the Veteran’s hip and leg disabilities clearly and unmistakably existed prior to, and were clearly and unmistakably not aggravated beyond their natural progression by, his active service. The VA examiner reasoned that the Veteran’s continued suffering due to his left rod placement was typical of the condition. The VA examiner also stated that the Veteran’s diagnosis of calcific bursitis likely represented natural progression and temporary aggravation, as there was no documented hip injury or further evaluation during his service. The VA examiner noted that the removal of the Veteran’s pin was performed in approximately 1970 after a documented basketball injury. The VA examiner also noted that the Veteran’s diagnosis of hip arthritis was many years after his active service and more likely related to age, wear and tear. Additionally, the VA examiner assessed that the Veteran’s left leg disorder was clearly related to his lumbar condition, as documented by his August 2017 abnormal NCS and MRI. Initially, the Board notes that the April 2013, January 2016, June 2018 and June 2019 VA examinations and opinions are inadequate for adjudication purposes. In that regard, these examinations and opinions collectively failed to unambiguously state whether the Veteran’s left hip and left leg disabilities preexisted and/or were permanently aggravated by his period of service, failed to incorporate the Veteran’s lay statements of worsening pain and further injury during his time in Vietnam, failed to accurately report the increased severity, documented by the Veteran’s physical profile, during his time in service, and used speculative language without additional accompanying rationale. See Winsett v. West, 11 Vet. App. 420, 424 (1998). As those examinations and opinions are inadequate, they cannot serve as the basis for a denial. In contrast, the Board finds that the March 2020 VA examination is adequate for adjudication purposes. In that regard, the VA examiner incorporated the Veteran’s lay statements pertaining to continued pain during service, discussed relevant evidence from the claim file, referenced pertinent medical literature, and provided supporting rationale for the conclusions reached. Moreover, there is no evidence to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that the March 2020 VA opinion is the most probative evidence of record. Based on the foregoing, the Board finds that the evidence of record reveals that the presumption of soundness has been rebutted. Additionally, the most probative evidence of record reveals that the Veteran’s left hip and knee disabilities were clearly and unmistakably not aggravated by his active service. In that regard, the March 2020 VA examiner opined that the Veteran’s in-service complaints of pain were typical of his rod placement, there was no documented in-service treatment for a chronic hip condition, there was a documented post-service injury that resulted in removal of the Veteran’s left hip hardware, and the Veteran’s leg injury was clearly the result of his lumbar disability. See Harris v. West, 11 Vet. App. 456, 461 (1998). Further, the Board notes that this finding is consistent with the Veteran’s own admission his lower extremity numbness and stinging did not begin until approximately 2010, over 40 years after his separation from active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board finds that the VA has met its high burden of showing by clear and unmistakable evidence that the Veteran’s left hip disability, to include arthritis, and left leg disability preexisted service and were not aggravated by such. As service connection cannot be established for a condition when the presumptions of soundness and aggravation are rebutted, service connection for a left hip disability, to include arthritis, and a left leg disability, are not warranted. 38 U.S.C. § 5107(b) (2018); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.