Citation Nr: 21022359 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-00 339 DATE: April 15, 2021 ORDER Entitlement to service connection for residuals of low back injury, including lumbosacral strain and degenerative disc disease (DDD) (low back disorder), is denied. Entitlement to service connection for residuals of neck injury is denied. Entitlement to service connection for residuals of bilateral hip injury is denied. Entitlement to service connection for residuals of right knee injury, status post-ACL repair (right knee injury), is denied. Entitlement to service connection for residuals of pelvis injury is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s currently diagnosed low back disorder had onset in active service or is otherwise causally related to his active service. 2. The preponderance of the evidence of record is against a finding that the Veteran’s currently diagnosed neck disorder had onset in active service or is otherwise is causally related to his active service. 3. The preponderance of the evidence of record is against a finding that the Veteran’s currently diagnosed bilateral hip disorder had onset in active service or is otherwise is causally related to his active service. 4. The preponderance of the evidence of record is against a finding that the Veteran’s currently diagnosed right knee disorder had onset in active service or is otherwise is causally related to his active service. 5. The preponderance of the evidence of record is against a finding that the Veteran’s currently diagnosed pelvis disorder, characterized by subjective pain, had onset in active service or is otherwise is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back disorder have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for entitlement to service connection for residuals of neck injury, including cervical strain, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for residuals of bilateral hip injury have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for residuals of right knee injury have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for residuals of pelvis injury have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On initial review of this case the Board denied the appeal, see 08/27/2019 BVA Decision, and the Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In June 2020, while the appeal was pending, the Veteran, through counsel, and the Secretary, VA, entered into a Joint Motion for Remand (JMR) and submitted it to the Court. See 06/24/2020 CAVC Decision, P. 2-6. In an Order also dated in June 2020, the Court vacated the August 2019 Board decision and remanded the case to the Board for further review consistent with the JMR. Id. P. 7. In compliance with the Court remand, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. See 11/09/2020 BVA Decision. As discussed further below, the Board finds that the AOJ substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Applicable Legal Requirements Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Hedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A chronic disease, in this case, arthritis, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, if a chronic disease is noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be establihed if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence, of a nexus between the present disability and the post-service symptomatology. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Background and Court Remand The Veteran asserts that he has current back, neck, bilateral hip, right knee and pelvis disabilities which are the result of injuries sustained during active service. Specifically, he contends that he suffered injuries to her neck, back, hips, pelvis, and right knee in an April 1985 training accident when another soldier became tangled in her parachute during a jump. The entanglement caused him to fall several feet to the ground without the benefit of a fully deployed parachute. The Veteran asserts that his currently diagnosed disorders had their onset during service, though the initial onset is undocumented, with back and neck conditions being initially diagnosed in 2017, and hip and pelvis conditions in 2019, decades after the Veteran’s separation from service. In the August 2019 decision, the Board determined that the Veteran’s explanation for why his injuries were not reported or treated during active service lacked credibility and, with the addition of the findings and opinions of the VA medical examiners who examined him, found that the preponderance of the evidence was against his claims. The consensus of the parties in the JMR was that the August 2019 Board decision lacked adequate reasons and bases. Specifically, it was found that the Board did not consider or discuss the fact that service connection for residuals of a traumatic brain injury (TBI), migraine headaches, right ear hearing loss, and tinnitus, was granted on the basis of the Veteran’s lay reports. Further, the Board did not discuss or explain why that fact did not support the Veteran’s claims; and, that a VA examination report notes the Veteran’s report that he underwent a right ACL repair in 2005, which suggested that there were private treatment records that had not been sought. Hence, the record may not have been complete. In the November 2020 remand, the Board directed that the AOJ ask the Veteran for appropriate releases so that any private treatment records extant could be obtained, and that additional opinions be obtained from the VA examiner, with the caution that the claims file lacks a separation examination or report of medical history, so no assumptions can be made as to the content of those documents. See 11/09/2020 BVA Decision. A November 2020 AOJ letter to the Veteran included VA Forms 21-4142 to complete and return so VA could request any private treatment records extant. See 11/16/2020 Subsequent Development Letter. The Veteran did not respond to the letter in any way, including not returning the 4142s completed. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (Duty to Assist not a one-way street). The AOJ completed the other development as directed and continued the denials of the claims. See 12/14/2020 Exam Request; 01/28/2021 SSOC. Prior to discussing below the medical findings on each disorder claimed, the Board addresses the fact that service connection is in effect for TBI residuals, migraine headaches, right ear hearing loss, and tinnitus. In the December 2017 rating decision, the AOJ noted that while the Veteran’s STRs were silent for any complaints or findings related to the claimed disorders, it essentially relied on the fact that the medical examiner rendered a positive medical nexus. See 12/12/2017 Rating Decision – Narrative. The VA examiner noted the Veteran’s reported history of injuries from the parachute jump and the absence of any supporting evidence in the STRs but still rendered a positive nexus opinion. It is clear that the examiner rendered the positive nexus opinion solely on the basis of the Veteran’s reported history, see 11/02/2017 C&P Exam, 1st Entry, and that the AOJ did not question it. Concerning the JMR consensus that the Board must discuss the above fact, the Board notes that this is not an appeal under the Appeals Modernization Act but a Legacy appeal. As such, the Board is not bound by the earlier finding. Further, neither did the AOJ consider the decision of the TBI examiner binding as concerns the other claims. The Veteran asserted that the reason that there are no entries in the STRs related to the claimed injuries is because he feared retribution from his superiors, and that he was bullied not to report them or seek treatment. In the April 2019 decision, the Board noted that entries in the STRs from around the time of the alleged training injury show treatment for a sinus condition in March 1985 and medical screenings in April and May 1985 that showed the Veteran had no physical problems. In the months and years that followed, the Veteran went to sick call for other issues, including an upper respiratory infection, right knee pain, and a foot blister, and a contusion. See 11/25/2013 STR-MED. The Board noted further that it may draw inferences against the Veteran from the absence of documentation when there is logical reason to suppose that the event or condition would have been recorded. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. See AZ v. Shinseki, 731 F.3d 1301, 1315 (Fed. Cir. 2013). The Board notes further that in addition to the assertions that he was bullied and feared repercussion if he had sought treatment for the injuries, the Veteran asserted further that he was told that he could never seek treatment or claims for his injuries even after discharge. See 05/12/2014 NOD, P. 2. The Board notes, however, that as part of her out-processing, he specifically acknowledged his right to seek VA compensation, that he had not filed a claim at that time, and that he was entitled to do so after discharge. See 11/25/2013 Military Personnel Record, 2nd Entry, P. 2. This fact, combined with those noted above, persuades the Board that the Veteran’s assertions are not credible. The Board now considers how the medical examiner assessed the Veteran’s disorders. 1. Entitlement to service connection for residuals of low back injury is denied. The record shows the Veteran has current diagnoses of lumbosacral strain and lumbar DJD. The report of the initial examination reflects that the examiner opined that it was not at least as likely as not that the current disorders had onset in service or was otherwise related to service. The sole rationale offered, however, was that there were no associated entries in the STRs. See 11/02/2017 C&P Exam, 8th Entry. Hence, the Board remanded for another examination, to include a directive that the Veteran’s lay report of her history be considered. In the 2019 examination report the examiner also opined that there was no connection with active service. As concerns the Veteran’s reports of why there were no entries in the STRs, in addition to the fact that the Veteran had sought medical attention for other complaints, the examiner opined that based on the Veteran’s description of his injuries across multiple body sites, it would have been unlikely that the Veteran would have been able to conceal the injuries from superiors while still being able to continue and complete airborne training and another 2 years of service if the injuries were of any significant severity. The examiner also opined that the 2017 lumbar spine x-rays, read more accurately, showed DDD rather than degenerative joint disease, hence the diagnoses of lumbosacral strain and DDD. The examiner noted that in addition to the passage of some 26 years since the Veteran’s discharge and the diagnosis in 2019, which would allow for an intervening injury, the currently diagnosed strain and DDD are consistent with the natural wear and tear of aging, since the Veteran was 51 years of age at the time of the November 2017 x-rays. See 06/27/2019 C&P Exam, 3rd Entry, P. 6. The January 2021 report reflects that an examiner reviewed the Veteran’s claims file. In addition to noting the findings and opinions of the 2019 examination, the examiner noted that the November 2017 x-rays showed DDD and narrowing at L3-L4 disc space, and that the rest of the lumbar spine was normal. The examiner opined that the findings were relatively mild, and that they were not consistent with a traumatic injury occurring in the 1980s. The examiner noted that the medical literature did not support a connection between DDD and parachuting. The examiner noted further that medical studies show that the frequency of moderate and severe disc degeneration was significantly related to age but not to body weight or to the number of descents; and, that they do not implicate parachuting as a cause of intervertebral disc degeneration, either cervical or lumbar, nor as a cause of spondylolysis or spondylolisthesis. The studies have not identified any significant differences in the development of lumbar degenerative changes between parachutists and non-parachutists. Studies done over a 30-year follow-up suggest that military parachuting itself does not accelerate the development of intervertebral disc degeneration. See 01/21/2021 C&P Exam, P. 5. The Board further concludes that the weight of the evidence is against a finding that arthritis developed in service or within one year of separation from active service. The Board is aware that a claimant’s lay reported history may not be rejected solely on the basis of the absence of contemporaneous medical documentation. (Emphasis added). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the examiner reviewed the claims file and assessed the Veteran’s lay reported history and claimed severity of the injuries in light of medical probability. The examiner provided a clear explanation for the opinion rendered. The Board finds that the evidence of record supports the opinion. Hence, the Board finds it highly probative and affords it significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner’s opinion and the Board’s finding as concerns the Veteran’s credibility constrains the Board to find that the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. § 3.303, 3.307(a)(3), 3.309(a). Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes the Veteran’s assertions in the substantive appeal that the x-ray findings prove his assertions and his claim. Although the Veteran is competent to report his lay history and the symptoms that he has experienced, subject to assessment for credibility and accuracy, or course, that is not necessarily the case where the issue is etiology. The Board determines on a case-by-case basis whether a lay person may opine on etiology. See Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board finds that opining on the etiology of a low back disorder and whether it is the result of trauma or other causes is complex, and it requires medical training. See 38 C.F.R. § 3.159(a). There is no evidence that that the Veteran has the requisite medical training or credentials to opine on this complex medical matter. Hence, the Board finds that her opinions are not probative on the issue. Id. 2. Entitlement to service connection for residuals of neck injury is denied. The medical evidence of record shows a current diagnosis of cervical strain. See 11/02/2017 C&P Exam, 12th Entry; 06/27/2019 C&P Exam, 1st Entry. Nonetheless, the examiner who conducted the 2019 examination and the clinician who conducted the 2021 review of the claims file opined that it is not at least as likely as not that the currently diagnosed strain had onset in active service or is otherwise causally connected with active service. The examiner provided the same rationale for as for the low back disorder. Hence, the Board incorporates here by reference, in its entirely, the earlier discussion on the low back disorder. The January 2021 report reflects that the examiner also noted that the November 2017 cervical spine x-ray was normal, which would be inconsistent with a traumatic injury from the 1980s. Hence, the opinion that the strain is more consistent with the aging process. Hence, the Board also finds that the preponderance of the evidence of record is against the neck claim. 38 C.F.R. § 3.303. 3. Entitlement to service connection for residuals of bilateral hip injury is denied. In 2017 the Veteran’s hip and thigh examination, to include the x-rays, was normal. Hence, the examiner opined that there was no diagnosed disorder. See 11/02/2017 C&P Exam, 3rd Entry. The 2019 examination report reflects that the examiner diagnosed a bilateral hip strain. See 06/27/2019 C&P Exam, 2nd Entry. The 2019 and 2021 examination reports reflect that each examiner opined that it is not at least as likely as not that the bilateral hip strain had onset in active service or is otherwise causally connected to the Veteran’s active service. See id.; 01/21/2021 C&P Exam. The examiners provided the same rationale as set forth earlier to support their opinions that the strain is more consistent with aging that a claimed injury that occurred 26 years earlier. Again, the Board incorporates here by reference, the entire discussion of the low back disorder. Based on all of the findings and discussions set forth earlier, including the adverse determination on the Veteran’s credibility, the Board finds that the preponderance of the evidence of record is against the claim. 38 C.F.R. § 3.303. 4. Entitlement to service connection for residuals of right knee injury is denied. The Veteran’s STRs note that the Veteran sought treatment for right knee pain in October 1985. He reported pain for about three weeks behind the knee when flexing, squatting, and running, without swelling or discoloration. The claimed training injury is alleged to have occurred in April 1985, about six months prior to the treatment noted in the STRs. No diagnosis was provided, and the STRs do not contain any other entries related to the knee. The weight of the evidence of record is against a finding that arthritis manifested at least to a compensable degree within one year of service. The November 2017 VA examination report reflects the Veteran’s reported history of a twisting injury in 2005, which resulted in an ACL repair. The examiner noted further that the examination findings revealed that the Veteran’s pain presented as anterior and medial to the right knee joint, a location different from that described in the October 1985 STR entry. Based on this, the examiner opined that the Veteran’s current symptoms, including degenerative arthritis, are likely the residual discomfort from his 2005 injury and the related ACL repair. See 11/02/2017 C&P Exam, 9th Entry. The 2019 VA examination report reflects that the examiner noted the findings of the 2017 examination as part of the review of the claims file. Based on the rationales set forth earlier, the examiner opined that the right knee degenerative arthritis more likely was due to the 2005 injury that necessitated the ACL repair, and not a claimed injury that occurred 20-plus years earlier. See 11/2/2017 C&P Exam, 3rd Entry, P. 6. As noted earlier, the Veteran did not respond to the November 2020 VA letter, so no private treatment records were added to the claims file. The January 2021 report reflects that the examiner noted and considered the findings and opinions reflected in the 2017 and 2019 examination reports. The examiner noted that the 2017 x-ray findings were consistent with the prior ACL repair and resultant degenerative findings and opined that the degenerative findings were most likely due to the 2005 surgery and aging. See 01/21/2021 C&P Exam, P. 8. The examiner noted that the medical literature supports that post-traumatic osteoarthritis of the knee is common following knee surgery. Further, age is also a primary risk factor for the development of osteoarthritis. As one ages, the clinician explained, there are changes in the cells and tissues that make the joint more susceptible to damage, and less able to maintain homeostasis. The National Health and Nutrition Examination Survey found the prevalence of arthritis to be over 80 percent in people over age 55; and, that the medical literature does not support that parachutists as a group show an increased prevalence of radiological osteoarthrosis of the knee. Id. P. 8. The Board incorporates here by reference, in its entirety, the earlier discussion on the rationale, the findings on the Veteran’s credibility, and the fact that he is not competent to opine on medical etiology. In addition to reviewing the claims file and explaining the opinion, the clinician noted the findings of medical studies as they related to the Veteran individual case. Nieves-Rodriguez, 22 Vet. App. 295. Hence, the Board finds that the preponderance of the evidence is against the claim on both a presumptive and direct basis. 5. Entitlement to service connection for residuals of pelvis injury, to include subjective pain, is denied. The 2017 examination report reflects that no pelvic disorder was diagnosed. The 2019 examination report reflects that subjective pain was diagnosed but there was no identified underlying disorder associated with the pain. See 11/02/2017 C&P Exam, 3rd Entry; 06/27/2019 C&P Exam, 3rd Entry. The clinician who conducted the 2019 review opined that the medical literature did not support a connection between a hip strain and subjective pelvic pain diagnosed in 2019 and a claimed traumatic injury in the 1980s. See 01/21/2021 C&P Exam, P. 6. (Continued on the next page)   The Board acknowledges that, under certain conditions, chronic pain alone may constitute an injury or disease for purposes of service connection. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). There must be evidence of diagnosed chronic pain in or at the time of separation from active service, continuation of the same chronic pain, and economic impairment as a result of the chronic pain. Id. First, the Board notes that there is no evidence of diagnosed chronic pelvic pain at the time the Veteran separated from active service. Second, while the Veteran is competent to provide evidence, written or oral, that he had pelvic pain in service and afterwards, which he has done, the Board has found her lay reports not credible, as discussed earlier. Further, as set forth above, a medical examiner opined that it is unlikely that there is a connection between the subjective pelvic pain and claimed 1985 in-service injury. There are no entries in the STRs related to complaints of pelvic pain, and the only evidence of record that remotely fills the hiatus between 1987 to date is the Veteran’s lay reports, which the Board deems not credible. Hence, assuming economic impairment solely for the sake of argument, the Board finds that the preponderance of the evidence is against a finding of disability due to chronic pain based on Saunders. 38 C.F.R. § 3.303. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.