Citation Nr: 21015427 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-16 363 DATE: March 17, 2021 ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to a rating in excess of 30 percent for right total knee replacement (TKR) prior to October 15, 2020, and in excess of 60 percent thereafter. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right hip disability is denied. REMANDED Entitlement to a rating in excess of 30 percent for right TKR prior to October 15, 2020, and in excess of 60 percent thereafter is remanded. FINDINGS OF FACT 1. A back disability was not shown in service or for many years thereafter, and has not been shown to be related to service or a service-connected disability. 2. A left knee disability was not shown in service or for many years thereafter, and has not been shown to be related to service or a service-connected disability. 3. A right hip disability was not shown in service or for many years thereafter, and has not been shown to be related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met or approximated. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a left knee disability have not been met or approximated. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a right hip disability have not been met or approximated. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to November 1992. This case comes to the Board of Veterans’ Appeals (Board) on appeal from August 2014 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a February 2018 videoconference hearing. A copy of the transcript is of record. When this case was previously before the Board in August 2020, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. As to the issues decided below, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently, in a November 2020 rating decision, the evaluation of right TKR was increased to 60 percent disabling effective October 15, 2020. This did not satisfy the Veteran’s appeal. Service Connection Claims The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability. 38 C.F.R. § 3.310 (2017). Certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309. However, the disabilities on appeal manifested years after service. Therefore, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, VA treatment records show diagnoses of degenerative arthritis of thoracic and lumbar spine, osteoarthritis (OA) of the right hip status-post total hip arthroplasty, and OA of the left knee. Therefore, Hickson element (1) is met for the claims on appeal. With respect to Hickson element (2), in-service disease or injury, the Veteran asserts that her disabilities are related to the service-connected right TKR. Accordingly, Hickson element (2) is at least arguably met. As to the claimed left knee and right hip disabilities, the Veteran was afforded VA-contracted examinations in January and March 2013 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness; and that the claimed condition was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. However, the rationale for both opinions was that medical records revealed that the Veteran injured her left knee while lifting a heavy object from the trunk of her car in 1985; there was no prior history of treatment for left knee pain prior to this injury. As for the right hip, the examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the rationale was that review of civilian medical records revealed that the Veteran had a right total hip replacement due to arthritis of the hip; her surgeon did not directly correlate the right hip condition as related to the right knee condition, but the Veteran claimed that she had no prior hip condition until after her right knee injury. The examiner stated that there was no direct correlation between the right hip condition and the right knee chondromalacia patella. The examiner opined that service treatment records (STR) did not document a direct correlation of right hip condition due to the right knee condition. The examiner also stated that review of the STR showed no documentation to state that the left knee condition was due to right knee chondromalacia patella. The RO found that the VA-contracted examinations gave conflicting opinions and sought an addendum VA opinion in October 2013 in which the VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner stated that records indicated that an ACL injury explained the left knee condition, and there was no evidence of altered gait/favoring the right knee causing increased stress to left knee. The examiner also stated that medical literature did not support hip problems/arthritis developing from same-sided knee conditions/arthroplasty. However, the Board found that a leg length discrepancy was noted in the January 2013 VA-contracted examination. Moreover, the Veteran testified before the undersigned, and stated in other correspondence to VA, that her service-connected right TKR caused overuse of her left knee, that she had been limping for 20 years, and it caused damage. Therefore, the Board found that an addendum opinion was warranted on remand to address the Veteran’s documented leg length discrepancy in connection with her claims for service connection. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As to the claimed back disability, the Veteran was afforded a VA examination in December 2014 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that during service the condition was acute only; there was no evidence of chronicity of care; a nexus had not been established. The Board found that clarification was required from the December 2014 as the opinion appeared to be based on absence of treatment. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). In response to the Board’s remand, regarding the claimed left knee disability a VA-contracted opinion was obtained in October 2019 in which the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that review of the STRs showed no evidence of the diagnosis or treatment for left knee degenerative joint disease while on active duty or within one year of service. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of Veteran’s service-connected condition. The examiner stated that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis; or shortening of the injured limb resulting in length discrepancy of more than five centimeters so that the individual’s gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. A VA-contracted opinion was also obtained regarding the claimed right hip disability in October 2019 in which the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that review of the STRs showed no evidence of a right hip condition while on active duty; the separation examination was negative for hip complaints while on active duty or within one year of service. The examiner stated that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis; or shortening of the injured limb resulting in length discrepancy of more than five centimeters so that the individual’s gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. A VA-contracted opinion was also obtained regarding the claimed back disability in October 2019 in which the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that during service, the back condition was acute only; there was no evidence of chronicity of care; a nexus was not established. The examiner stated that review of the STRs showed the Veteran was diagnosed and treated for acute “back strain” while on active duty which resolved with conservative treatment; the separation examination was negative for back complaints; and strains did not cause degenerative disc disease (DDD). There was no disruption to the intravertebral disc at the time of injury; therefore, the DDD was most likely a natural aging process. The examiner stated that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis; or shortening of the injured limb resulting in length discrepancy of more than five centimeters so that the individual’s gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The Board noted that a leg length discrepancy was shown in the January 2013 VA-contracted examination. Moreover, the Veteran testified before the undersigned, and stated in other correspondence to VA, that her service-connected right TKR caused overuse of her left knee, that she had been limping for 20 years, and it caused damage. As such, the Board found in the August 2020 remand that clarification was required from the October 2019 examiner to address the Veteran’s documented leg length discrepancy in connection with her claims for service connection. In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in October 2020 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that during service, the back, left knee and right hip, were acute only; there was no evidence of chronicity of care and symptoms were subjective only. The examiner stated that a nexus was not established. The examiner opined that the claimed condition was less likely than not proximately due to or the result of Veteran’s service-connected condition. The examiner stated that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters(cm) so that the individual’s gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The October 2020 examiner stated that this level of severity was not supported based on record review, history, or examination; scanogram leg length showed approximately 0.5 cm bilateral lower limb length discrepancy. The Veteran's leg length were equal at 87cm each leg. The examiner stated that the left knee OA was less likely than not caused by or aggravated by the service-connected right knee because an ACL injury in 2003 explained the left knee OA; that the Veteran's DDD of the lumbar spine was not incurred in or aggravated by military service; and the OA of the right hip was not incurred in or aggravated by military service. The examiner stated that it was not unusual for two joints to share properties in the same person, but one joint disease did not spread to another or cause damage to it; therefore, the back, left knee, right hip disabilities were less likely than not related to the right TKR. The Veteran was also afforded a VA-contracted examination in November 2020 in which the examiner stated that the claimed condition was less likely than proximately due to or the result of Veteran’s service-connected condition. The examiner stated that the conditions of back (currently diagnosed as DDD lumbar spine) and right TKR were not medically related; the back condition was a separate entity entirely from the right TKR and unrelated to it. The examiner stated that a thorough review of medical literature failed to demonstrate a causal relationship, and a nexus was not established. The November 2020 examiner stated that the Veteran's current back condition was less likely than not proximately due to the right TKR; there was no clear evidence in the medical literature to suggest that an injury to lower extremity would have any significant impact on an uninjured spine or other remote joint unless the injury resulted in the major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than 4 or 5 cm so that the individual's gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The examiner stated that scanogram leg length of July 2017 proved there was approximately 0.5 cm bilateral lower limb length discrepancy. The November 2020 examiner stated that the DDD of the lumbar spine was due to something intrinsic to the lumbar spine and not the right knee; it was less likely than not that the back condition was aggravated beyond its natural progression by the service-connected right TKR. The examiner stated that the right hip disability was less likely than not related to the right TKR; the right hip condition was due to something intrinsic to the right hip and not the right knee. In this case, as to the issue of the etiology of the Veteran’s back, left knee, and right hip disabilities, the Board finds that the VA examiners made it clear that it was their opinions that these disabilities were not related to service or to her service-connected right TKR. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Instead, the examiners found that an ACL injury in 2003 explained the left knee OA, that the back disability was due to something intrinsic to the lumbar spine, and that the right hip disability was due to something intrinsic to the right hip. Accordingly, the Board concludes that the VA opinions carry significant weight. No other competent opinion providing a positive nexus between service or the service-connected right TKR and the Veteran’s back, left knee, or right hip disabilities, has been presented. The Board acknowledges that the Veteran is competent to testify as to her beliefs that her back, left knee, and right hip disabilities are related to service or the service-connected right TKR. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what she has experienced, she is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. Therefore, the Veteran’s claims that her back, left knee, and right hip disabilities are etiologically related to service or to the service-connected right TKR are outweighed by the competent and probative medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the VA examiners’ opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran’s history, and consideration of medical principles by licensed medical professionals. Moreover, the opinions were supported by relatively detailed rationale that contrasted the factual origin of each disability with the Veteran’s observations and allegations. Therefore, a nexus between service and the Veteran’s back, left knee, and right hip disabilities and service or the service-connected right TKR cannot be established, and the criteria of Hickson element (3) are not met. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). REASONS FOR REMAND In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in October 2020 in which physical examination showed pain in flexion and with weight-bearing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the October 2020 examination report did not provide all of the information specified by Correia and Sharp, the Board finds that the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate the claim. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of her service-connected right TKR. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s disabilities, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 2. Upon completion of the examination ordered above, review the report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 3. Readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, furnish to the appellant and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.