Citation Nr: 21027132 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-41 520A DATE: May 4, 2021 ORDER Service connection for the pre-existing lumbar spine disorder, diagnosed as lumbar degenerative joint disease (DJD) (previously claimed as a lower back condition), is denied. REMANDED Service connection for the right hip disorder, diagnosed as trochanteric pain syndrome and degenerative arthritis, including as due to the service-connected disabilities in both knees and the service-connected left foot disability, is remanded. Service connection for the left hip disorder, diagnosed as trochanteric pain syndrome and degenerative arthritis, including as due to the service-connected disabilities in both knees and the service-connected left foot disability, is remanded. FINDING OF FACT The pre-existing lumbar spine injury was not aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for a pre-existing lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASE FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to January 1976. These matters are on appeal from an October 2013 rating decision issued by the Regional Office (RO) in Roanoke, Virginia. The Veteran filed a notice of disagreement in July 2014 and a statement of the case (SOC) was issued in November 2014. The Veteran filed a substantive appeal (VA Form 9) in December 2014 and a supplemental statement of the case (SSOC) was issued in March 2018. The Veteran testified at a Board videoconference hearing in June 2018 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. These issues were previously before the Board in January 2019, including additional issues such as service connection for both knees and the left foot. The Board denied the three instant issues on appeal. The Veteran appealed the January 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A December 2019 Order by CAVC adopted a Joint Motion for Remand (JMR) filed by the parties. In the JMR, the parties agreed that the Board did not provide adequate reasons and bases when it found that the presumption of soundness has been rebutted in denying service connection for the lumbar spine disorder. Specifically, the parties agree that the Board did not identify the evidence upon which it relied to show that the lumbar spine disability was not aggravated by service or that any increase in severity was due to the natural progress of the lumbar DJD during service. The parties noted that the October 2013 VA examination, which the Board relied upon to deny service connection for the lumbar spine disorder, was inadequate because the VA examiner did not provide a reasoned medical explanation to connect the opinion to the supporting data. The parties to the JMR also agreed that the claims for service connection for the right and left hips should be remanded because they are inextricably intertwined with the claims for service connection for both knees that were on appeal as the hip disorders are asserted to be due to the knee disorders. These matters came before the Board again in October 2020. The Board remanded in order to obtain VA examinations for the lumbar spine disorder, bilateral knee disorders, and the left foot disorder. The Board remanded the hip issues as they were intertwined with the claims for service connection for both knees. VA examinations were conducted in December 2020. In a January 2021 rating decision, the RO granted service connection for disabilities in both knees. In March 2021, the Veteran submitted to a VA hip examination. A March 2021 SSOC denied service connection for the pre-existing lumbar spine disorder and the bilateral hip disorders. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (emphasis added). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). In this case, the there is no service entrance examination of record; therefore, the presumption of soundness at service entrance does not apply. See 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). "[T]emporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe at 247 48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b)(1); Hunt, 1 Vet. App. at 297. Where the pre service disability did undergo an increase in severity during service, clear and unmistakable evidence (obvious or manifest, with the burden on VA) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). 1. Service Connection for a Pre-Existing Lumbar Spine Disorder The Veteran contends that the pre-existing lumbar disorder was aggravated by service when performing physical training drills with a heavy backpack. The Veteran sought treatment for the lower back in service in January 1975. See January 1975 Service Treatment Records; June 2018 Transcript. After a review of the evidence, the Board finds that there is no service entrance examination of record; therefore, presumption of soundness at service entrance does not apply. See 38 C.F.R. § 3.304(b). The weight of the evidence shows that the Veteran had a pre-existing spine injury. According to January 1975 service treatment records, the Veteran sought treatment for right lower back pain and reported that he was hospitalized for back strain for 15 days prior to entering service. The Board finds this statement highly probative as it was made for the purpose of medical treatment. Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (A Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Veteran expounded upon the pre-existing back injury in an August 1975 report of medical history; the Veteran reported that he was hospitalized in July 1973, prior to entering service, for paralysis in the lumbar spine. The Board finds this statement consistent with the statement made in January 1975. Contra Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). The Board finds that the pre-existing lumbar spine injury preexisted service by a preponderance of the evidence. The Board finds that the pre-existing lumbar spine disability was not aggravated beyond its natural progression during service. The Veteran submitted several private examination opinions to the record, filed in January 2013, February 2016, March 2018, and March 2020, all of which address the theory of direct service connection, none of which opine whether the pre-existing lumbar spine disability was aggravated beyond its natural progression during service. The Board finds that the January 2021 VA examination probative in that it provides a comprehensive rationale in support of the aggravation opinion. The January 2021 VA examiner opined that the pre-existing lumbar spine disability was not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner reasoned that the Veteran was hospitalized for a back strain prior to entering service, but there is no entrance exam to confirm the severity of the preexisting back disorder at the time of enlistment. The VA examiner found that there was insufficient evidence in the service treatment records of post-service records to establish aggravation of the back disorder beyond natural progression due to service, especially considering that the Veteran reported recurrent, asymptomatic back pain at the November 1975 service separation examination. The VA examiner also notes that there is a gap in post-service medical records to establish aggravation of the back disorder from service. The VA examiner found that the current lumbar spine disability, which was diagnosed in 2014, is likely due to aging and wear and not in-service aggravation. Based on the foregoing, the Board finds that the pre-existing lumbar spine injury was not aggravated beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For these reasons, the appeal for service connection for a back disorder must be denied. REASONS FOR REMAND 2. Service Connection for a Right Hip Disorder is Remanded. 3. Service Connection for a Left Hip Disorder is Remanded. The Veteran contends that his right hip and left hip disorders are due to the non-service-connected back disability, and service-connected left foot, right knee, and left knee disabilities. The Veteran explains that, because of his back, knees, and left foot, he walks with an altered gait and that the altered gait has affected both hips. See June 2018 Board Hearing. In the December 2019 JMR, the parties agreed that the issues of service connection for the right and left hips should be remanded as they are inextricably intertwined with the claims for service connection for both knees that were on appeal as the hip disorders are asserted to be due to the knee disorders. In October 2020, the Board remanded the hip issues in accordance with the December 2019 JMR. In a January 2021 rating decision, the RO granted service connection for degenerative joint disease in both knees. The Veteran submitted to a VA hip examination in March 2021, which rendered secondary service connection opinions based on the bilateral knee disability. The VA examiner opined that the hip disabilities were less likely than not proximately due to or the result of the bilateral knee disabilities. The VA examiner reasoned that there are "no objective findings of conditions to either hip joints etiologically involving parachuting" and that the "hip is the strongest bone in the body and not affected by bilateral knee conditions." The Board finds that this opinion is not probative as the VA examiner based it on a bare conclusion with no explanation or reference to clinical data or medical literature. Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The VA examiner also opined that the bilateral hip disorders were not at least as likely as not aggravated beyond its natural progression by the service-connected disabilities in both knees. The sole reasoning provided by the VA examiner was that the Veteran's hip diagnoses were made 46 years after service separation in 2014. The Board finds this opinion is not probative as the reasoning is based solely on a prolonged period without a diagnosis and does not discuss reports of hip symptoms prior to 2014. See January 2013 Private Treatment Records (noting hip symptoms); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board finds that a remand for VA examination addendum opinions is warranted in order to determine service connection for both hip disorders, diagnosed as trochanteric pain syndrome and degenerative arthritis in both hips, including as due to the service-connected disabilities in both knees and the left foot. The matters are REMANDED for the following action: Request a VA examiner to provide addendum opinions based on a review of the evidence that includes the March 2021 VA examination report. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided, including a discussion of the January 2013 private treatment records and reported altered gait. The VA examiner should offer opinions in answer to the following questions: Right and Left Hip Disorders Is it at least as likely as not (50 percent probability or greater) that the right hip or left hip disorder was caused by the service-connected left knee, right knee, or left foot disabilities? Is it at least as likely as not (i.e., probability of 50 percent or more) that the right hip or left hip disorder was aggravated by (worsened in severity beyond a normal progression by) the service-connected left knee, right knee, or left foot disabilities? Is it at least as likely as not (50 percent probability or greater) that the right hip or left hip disorder was caused by the service-connected left knee, right knee, or left foot disabilities? Is it at least as likely as not (i.e., probability of 50 percent or more) that the right hip or left hip disorder was aggravated by (worsened in severity beyond a normal progression by) the service-connected left knee, right knee, or left foot disabilities? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.