Citation Nr: 21024270 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-20 517 DATE: April 22, 2021 ORDER Entitlement to service connection for degenerative joint disease status post left hip replacement (left hip disability) is granted. Entitlement to service connection for degenerative joint disease status post right hip replacement (right hip disability) is granted. Entitlement to service connection for a left ankle arthritis is granted. Entitlement to service connection for right shoulder arthritis is granted. Entitlement to service connection for headaches (claimed as residual of a head injury) is granted. Entitlement to service connection for thorax contusion (claimed as chest condition) is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left hip disability had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran’s right hip disability had its onset in service. 3. The evidence is at least evenly balanced as to whether the Veteran’s left ankle arthritis had its onset in service. 4. The evidence is at least evenly balanced as to whether the Veteran's right shoulder arthritis is related to an in-service injury. 5. The evidence is at least evenly balanced as to whether the Veteran's headaches are related to an in-service injury. 6. The preponderance of the evidence is against a finding that the Veteran has a thorax contusion or related symptoms that cause impairment in earning capacity, or that any such symptoms are related to or may be associated with service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left hip disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right hip disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left ankle arthritis are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right shoulder arthritis are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for headache condition are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for thorax contusion have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to November 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for left ankle condition, head injury, thorax contusion, right shoulder arthritis, and left and right hip arthritis. In November 2012 the Veteran filed a notice of disagreement (NOD) and in April 2015 the RO issued a statement of the case (SOC). In June 2015 the Veteran timely filed a substantive appeal (via VA Form 9). In November 2018 the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. After the VLJ who held this hearing subsequently retired from the Board, the Veteran was offered the opportunity to appear at a new hearing before a different VLJ. By not responding he declined a new hearing and the Board will proceed with the appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. In July 2019 the Board remanded the Veteran’s claims for further evidentiary development, specifically, to obtain outstanding VA and private treatment records and obtain an opinion as to the nature and etiology of the Veteran’s right and left hip disabilities, left ankle arthritis, and right shoulder arthritis. The Board also remanded the Veteran’s claim to schedule a VA examination for any headache disorder or chest/thorax disorder. For the reasons stated in the discussion below, the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Left and right hip disabilities A July 2010 private treatment note indicates that the Veteran was diagnosed with degenerative joint disease of the left and right hips. A March 2011 private treatment note indicates that the Veteran underwent left and right total hip arthroplasty. Thus, current left and right hip disabilities have been demonstrated. In a February 2011 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he injured his hips playing basketball on active duty. A February 1979 service treatment record (STR) note indicates that the Veteran had an inguinal muscle strain in a basketball related injury. This treatment note indicates the Veteran played basketball in service and therefore the Veteran’s claimed left and right hip injuries are consistent with the places, types and circumstances of the Veteran’s service, and are competent and credible. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current left and right hip disabilities and his military service. An October 2011 VA examiner opined that the Veteran’s left and right hip disabilities are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The July 2019 Board decision found this opinion inadequate and no further discussion of this opinion is required. An August 2013 private treatment note from the Veteran’s private orthopedic specialist opined that the Veteran’s left and right hip disabilities are most likely caused by or a result of a sports-related act. The private physician noted an association to the Veteran’s service-connected bilateral knee and right ankle disabilities. While the private physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). Although the private physician’s rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, it is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). A January 2020 VA examiner opined that the Veteran’s left and right hip disabilities are less likely than not related to playing basketball in service. The VA examiner explained that the Veteran underwent his hip replacements several years following service and there was no documentation of left or right hip degenerative joint disease in the military. This opinion is afforded limited evidentiary weight as the VA examiner relied heavily on the lack of contemporaneous medical evidence and did not consider whether repeated exertion playing basketball over several years caused his left and right hip disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Given the positive nexus opinion and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's left and right hip disabilities are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left and right hip disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Left ankle arthritis An October 2011 VA examiner diagnosed the Veteran with left ankle arthritis. Thus, a current left ankle disability has been demonstrated. At the November 2018 Board hearing the Veteran testified that he twisted his ankle two or three times which caused his left ankle arthritis. As previously mentioned, a February 1979 STR indicates that the Veteran suffered from an inguinal muscle strain in service as a result of a basketball related injury. This treatment note indicates the Veteran played basketball in service and therefore the Veteran’s claimed left ankle sprains are consistent with the places, types and circumstances of the Veteran’s service, and are competent and credible. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The remaining question is whether a nexus exists between the Veteran’s current left ankle arthritis and his military service. An October 2011 VA examiner opined that the Veteran’s ankle condition is at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that medical literature indicates that repeated strains/sprains of a joint can lead to degenerative arthritis. Although the VA examiner did not specify whether he was referring to the Veteran’s left or right ankle in his opinion, during the examination the VA examiner noted that there was possible old trauma to the Veteran’s left ankle including calcification seen within the soft tissues along the posterior perhaps due to an old injury of the achilles tendon. To the extent that the Veteran did not specifically reference whether he was discussing his left or right ankle arthritis, reasonable doubt must be resolved in favor of the Veteran and it is established that the VA examiner was referencing both ankles in his opinion. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). Thus, as the VA examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The January 2020 VA examiner opined that the Veteran’s left ankle arthritis is less likely than not related to the wear and tear of sports injuries from playing basketball. The VA examiner explained that the Veteran’s STRs do not show any complaints or diagnosis of a left ankle injury or any treatment immediately following service. This opinion is afforded limited evidentiary weight as the VA examiner relied heavily on the lack of contemporaneous medical evidence and did not consider whether repeated exertion playing basketball over several years caused the Veteran’s left ankle arthritis. See Buchanan, 451 F.3d 1331 at 1336. Given the positive nexus opinion and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's left ankle arthritis is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ankle arthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Right shoulder disability An October 2011 VA examiner diagnosed the Veteran with right shoulder arthritis. Thus, a current right shoulder disability has been demonstrated. The Veteran’s STRs show complaints of right shoulder pain after he had sustained multiple injuries from a motor vehicle accident on October 9, 1982. A clinical evaluation showed he had tenderness on palpation of the right shoulder. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current right shoulder arthritis and an in-service injury. An October 2011 VA examiner opined that the Veteran’s right shoulder arthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The July 2019 Board remand found this opinion inadequate and no further discussion of this opinion is required. At the November 2018 Board hearing the Veteran testified that his right shoulder arthritis is the result of an injury in service and that his symptoms have persisted since that time. The Veteran is competent to report continuous shoulder symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan, 451 F.3d 1331 at 1337. As there is nothing in the Veteran’s record that contradicts the Veteran’s testimony, the reports of continuous right shoulder symptoms in the years since service are credible. A January 2020 VA examiner opined that the Veteran’s right shoulder arthritis is less likely than not related to an in-service injury or disease. The VA examiner explained that there are no records of shoulder problems for many years following service. The January 2020 opinion is of little, if any, probative value because it is based on the absence of evidence of ongoing treatment for right shoulder problems following the Veteran's time on active duty. The opinion does not take into account the competent and credible lay reports of continuous back symptoms in the years since service. Buchanan, 451 F.3d 1331 at 1336. The evidence reflects that the Veteran experienced right shoulder pain in service and that there have been continuous symptoms in the years since service. Thus, the evidence is at least evenly balanced as to whether the Veteran's diagnosed right shoulder arthritis had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right shoulder arthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Headaches A January 2020 VA examiner diagnosed the Veteran with a headache condition. Thus, a current residual disability has been demonstrated. The Veteran contends that he has current residuals of a head injury that were sustained in service. The Veteran’s STRs confirm that the Veteran sustained a head injury in November 1977 while playing basketball for which he was prescribed Tylenol for a headache. He sustained another head injury as a result of the October 1982 motor vehicle accident. Thus, the in-service injury requirement is met. The remaining question is whether a nexus exists between the Veteran’s current headache condition and an in-service injury. At the November 2018 Board hearing the Veteran testified that he has experienced recurrent headaches since his in-service head injuries. The Veteran is competent to report continuous shoulder symptoms in the years since service. See Jandreau, 492 F.3d 1372 at 1377; see also Buchanan, 451 F.3d 1331 at 1337. As there is nothing in the Veteran’s record that contradicts the Veteran’s testimony, the reports of continuous headache symptoms in the years since service are credible. A January 2020 VA examiner opined that the Veteran’s headache condition is less likely than not related to an in-service injury or disease. The VA examiner explained that the Veteran’s headache condition in service was transitory and resolved in a short period of time. The VA examiner explained that medical literature supports that headaches following a mild traumatic brain injury are generally acute in nature and resolve in months. The January 2020 VA opinion is inadequate as it does not consider the Veteran's competent and credible reports of continuous headaches since service. Buchanan, 451 F.3d 1331 at 1336. In sum, the evidence reflects that the Veteran experienced a head injury and headaches in service and that the evidence is at least evenly balanced as to whether there have been continuous headaches in the years since service. Given the diagnosis of a headache condition and the fact that the only head injury indicated by the evidence of record occurred during service, the evidence is at least evenly balanced as to whether the Veteran has residuals of the head injury he sustained in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of head injury is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Thorax contusion The Veteran contends that he injured his chest in an October 1982 motor vehicle accident during his period of service. At the November 2018 Board hearing the Veteran testified that he has continued to experience occasional chest pain since this injury. The Veteran’s STRs confirm he complained of chest pain after he had sustained multiple injuries from a motor vehicle accident on October 9, 1982, and he was assessed with a thorax contusion at that time. An October 2011 VA examiner concluded that the Veteran’s thorax contusion had resolved without complications based on the normal findings in a private chest x-ray. The Board remanded the Veteran’s claim because the October 2011 VA examiner did not address a November 2010 private chest x-ray report which showed that the Veteran’s right hemidiaphragm was elevated. A January 2020 VA examiner opined that it is less likely than not that there is any current thorax contusion condition or its residuals to include right hemi diaphragm condition that is related to an in-service injury, event, or disease. The VA examiner explained that the Veteran’s thoracic strain in service was transitory and resolved in a few days. The VA examiner explained that his subsequent medical history shows no documentation to support a chronic condition. In accordance with the Board remand instructions, the VA examiner considered the November 2010 chest x-ray report which showed slight elevation of the right hemidiaphragm and explained that this finding had resolved. The VA examiner pointed to a June 2013 x-ray report which noted that the bony thorax, soft tissues, diaphragm, and costophrenic angles are normal with no abnormalities in the Veteran’s chest area. The VA examiner also noted that medical literature supports that the Veteran’s thoracic contusion is a bruise and would likely have resolved in a short time. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. However, pain alone resulting in functional impairment is a disability for VA compensation purposes. Saunders v. Wilkie, 886 F. 3d 1356, 1368 (Fed. Cir. 2018). The presence of a disability at any time during the claim process can warrant a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The evidence does not show current treatment for, symptoms of, or a diagnosis of a chest disability nor do they suggest other chest related symptoms that have resulted in functional impairment in earning capacity. Two separate VA examiners concluded that the Veteran does not have a chest related disability. Even though the Veteran experiences chest pain, nothing in his record indicates a chest disability rising to the level of functional impairment in earning capacity. The Board notes that the November 2010 chest x-ray report which showed slight elevation of the right hemidiaphragm occurred prior to the Veteran filing a claim for benefits in February 2011. Moreover, the Veteran testified at the November 2018 Board hearing that although he periodically experiences pain in his chest, he does not take any medication for his chest pain. In sum, without competent evidence of a current disability that shows functional impairment of earning capacity, the preponderance of the evidence is against a current disability with regard to the claim for service connection for thoracic contusion. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.