Citation Nr: 21033430 Decision Date: 06/02/21 Archive Date: 06/02/21 DOCKET NO. 19-03 780 DATE: June 2, 2021 ORDER Service connection for a left hip disability is denied. Service connection for an acquired psychiatric disability, secondary to service-connected hypertension and cervical spine disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not reflect that the Veteran's left hip disability is etiologically related to active service. 2. The preponderance of the evidence does not reflect that the Veteran's acquired psychiatric disability is etiologically related to her active service or is proximately due to or aggravated by her service-connected hypertension and cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for an award of service connection for an acquired psychiatric disorder, on a direct and secondary basis to service-connected hypertension and cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1986 to October 1988. This matter comes to the Board of Veterans Appeals (Board) on appeal from June 2017 decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Given the various diagnoses of psychiatric disabilities of record, the Board has broadened the claim of entitlement to service connection for a psychiatric disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2019, the Board of Veterans' Appeals (Board) reopened a previously denied service connection claim for a left hip disability and denied the claim on the merits (in pertinent part). The Veteran appealed the August 2019 denial of entitlement to service connection for a left hip disability to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that VA examination findings relied on in the August 2019 Board decision were inadequate and requested vacatur of the portion of the decision denying the service connection claim for a left hip disability. The Court issued a June 2020 Order granting the JMPR and remanding the matter for further proceedings consistent with the JMPR. This case was last before the Board in December 2020, when the Board reopened a previously denied service connection claim for an acquired psychiatric disorder. The claims were then remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. 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). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). SERVICE CONNECTION The Veteran seeks service connection for a left hip disability and an acquired psychiatric disorder. The Veteran asserts that her left hip disability stems from falling off a wall during basic training and that her acquired psychiatric disorder is related to her service-connected hypertension and cervical spine disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a left hip disability is denied. The Board finds that entitlement to service connection is not warranted for a left hip disability. Service treatment records show that in January 1987, the Veteran pulled a muscle in her left thigh and had a swollen left hip. She was diagnosed with a muscle strain of the left biceps femoris. See Service Treatment Records (STRs). A month later, following complaints of pain in her left pelvic area, the Veteran underwent an x-ray for her left hip. The left hip x-ray showed no evidence of fracture, dislocation, or degenerative changes. There were no joint effusions or soft tissue calcifications seen. The Veteran's separation examination did not mention a left hip/thigh injury. Id. An August 2008 VA examination specifically noted the Veteran's complaints of right hip pain. There was no indication that the Veteran was experiencing any symptoms with her left hip. Hip x-rays in 2010 and 2015 showed a normal and unremarkable examination, respectively. See February 2019 CAPRI. The Veteran underwent x-rays in February and March 2012. Each x-ray showed minimal degenerative change of the hips. The March 2012 x-ray noted no fracture, dislocation, or destructive process. See February 2019 CAPRI. An April 2014 pelvic x-ray noted minimal degenerative change of the hips. See February 2019 CAPRI. The Veteran underwent a VA examination in July 2017. The VA examiner noted that the Veteran has degenerative arthritis in both hips. During the exam, the Veteran stated she fell and was knocked out during basic training. The VA examiner opined that the Veteran's left hip disability was less likely than not to be caused by or a result of military service. The VA examiner reasoned that the Veteran's separation examination was silent to a left hip injury, and that her in service left thigh strain had resolved. Further, the Veteran's post-service records do not show complaints of left hip pain until October 2010 (24 years after service). In short, the VA examiner observed that the Veteran's left thigh/hip sprains were not severe enough to cause degenerative joint disease, as traumatic degenerative joint disease would have occurred sooner. The Veteran was 50 years old in 2010, and the examiner opined her degenerative joint disease was more likely age related. The Veteran underwent a VA examination in May 2019. The Veteran was diagnosed with degenerative arthritis of the hips. The VA examiner opined that the Veteran's hip disability was less likely than not to have incurred in or caused by military service. The VA examiner reasoned that the Veteran's symptoms were subjective, and her objective examination was normal. Further, there was no objective evidence of a chronic condition. In November 2019, a private examiner opined that the Veteran's "problems with regard to her left hip and the degenerative changes as noted on x-rays" were as likely as not caused by the Veteran's military service. The private examiner reviewed the Veteran's STRs and noted an injury to the Veteran's left hip during service in 1986 and 1987. The private examiner found that the Veteran continued to complain of and seek treatment for her left hip following service and that subsequent x-rays reflected degenerative changes in the left hip. The private examiner noted that the initial traumatic event, which he found to have occurred during the Veteran's service, set off a series of chain reactions from a physiological, mechanical, and chemical set of events which continue in the future causing degenerative arthritis which occurred many years after the initial event. In its May 2020 JMPR, CAVC found the July 2017 and May 2019 VA medical examinations and opinions to be inconsistent with each other and therefore inadequate. In particular, whereas the July 2017 VA examiner noted a diagnosis of traumatic DJD, the May 2019 VA examiner found a clinically normal evaluation of the Veteran's hip. Accordingly, a new VA examination was obtained in February 2021 to obtain clarity of the Veteran's disability picture and likely etiology of any condition found. The February 2021 VA examiner opined that it was less likely than not that the Veteran's left hip disability was caused by service. The examiner noted that the Veteran's STRs reflected a right biceps femoris strain near its origin in the bony pelvis due to an injury on an obstacle course. The x-ray changes on the bony pelvis were ultimately ruled to be stress reaction, related to the soft tissue injury, which specifically ruled out a stress fracture. The episode appeared to have been self-limited, as there was no condition noted at separation exam, which included a questionnaire filled out by the Veteran. The examiner noted that there is no mention of a hip or thigh condition until 2010, at which time the Veteran noted onset "within the past few months." It is more likely than not that the hip strain in service was acute and self-limited. There is a period of more than 20 years from service until the first documented complaints, at which the Veteran herself gives a "few-month" history. See September 2015 CAPRI. Bilateral hip x-rays from February 2012 revealed minimal degenerative joint disease (DJD), which would have been consistent with the Veteran's age. The examiner noted that it is noteworthy that the disease was equal bilaterally, and not worse on the left. It is unlikely that the events in service were involved in the development of the Veteran's DJD. DJD is considered a natural aging process due to normal wear and tear. He notes that the area involved in the in-service injury was the pubic ramus, which is completely separate anatomically and functionally. There is no evidence of residuals from that condition. Furthermore, on the 2017 exam, the tenderness was lateral hip and not the area that would have been involved with the biceps femoris injury or residuals. The 2019 exam had nonlocalized tenderness. Therefore, the examiner reasoned that it is more likely than not that the hip condition beginning in or around 2010 is DJD and that the hip condition in service resolved. The Board acknowledges that the February 2021 examiner cited to the July 2017 and November 2019 VA examination reports in arriving to his conclusion, reconciling the "apparent inconsistencies" as noted within the May 2020 JMPR. In particular, the 2017 VA examiner's DJD diagnoses was in reference to the lateral hip, which is distinct from the in-service biceps femoris injury and distinct from the 2019 findings. In any case, to the extent there are inadequacies within the July 2017 and May 2019 VA examinations. just because a medical opinion is inadequate to decide a claim does not mean that it without any probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight). Both examination reports contain objective testing results that the February 2021 examiner incorporated in forming his conclusion. The Board finds compelling that the February 2021 examiner distinguished the hip area of the in-service versus the current pathology of the left hip DJD, finding the more likely incurrence of DJD to be around 2010 and likely unrelated to the original site of in-service injury. This is in sharp contrast to the November 2019 private examiner's opinion, who's opinion regarding the Veteran's "problems with regard to her left hip" were more vaguely associated with the in-service injury. The Board finds the February 2021 opinion to be the most persuasive opinion of record as it is based on a thorough physical examination, consideration of the Veteran's lay statements, a detailed review of the claims file (to include, significantly, the service treatment records and treatment after service), and a detailed rationale. The Board finds particularly significant that, as opined by the February 2021 examiner, the area involved in the in-service injury was completely separate anatomically and functionally from the Veteran's current hip condition. The Board has considered the Veteran's contentions that her past symptoms, current symptoms and diagnoses are related to her service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that they have observed and are within the realm of their personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In the instant case, the Board finds that questions regarding the potential relationship between the Veteran's disability and any instance of service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more comp1ex medical questions). Thus, while the Veteran is competent to describe the manifestations of her hip disability, the Board must accord her lay statements regarding the etiology of her hip disability little probative value. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a hip disability. While the evidence of record shows that the Veteran has a left hip disability, the most persuasive evidence demonstrates it is not related to service. In this regard, the Board places great probative weight on the February 2021 VA examiner's opinion as it sets out clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The preponderance of the evidence is against the Veteran's claim. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Service connection for an acquired psychiatric disability, secondary to service-connected hypertension and cervical spine disability, is denied. The Board finds service connection for an acquired psychiatric disability, to include on a direct basis and as secondary to service-connected hypertension and cervical spine disability, is not warranted. Service treatment records do not reflect any in service complaints of any psychiatric issues. The Veteran's August 1988 separation examination reflects that her psychiatric evaluation was normal. Additionally, at the time of separation, the Veteran denied all psychiatric issues, including issues such as excessive worry, nervous trouble, and frequent trouble sleeping. See STRs. In May 1993 the Veteran was seen in an emergency room for panic attacks. At the time she denied any prior treatment for mental illness. She stated that the first episode occurred 4 months after losing her job. See March 2019 Treatment Records. Following this, in August 1993, the Veteran was diagnosed with anxiety disorder. See March 2019 Treatment Records. It was noted in October 1994 that the Veteran had a history of panic attacks. See July 1995 Treatment Records. During an August 1995 VA psychiatric examination, the Veteran recounted that she was anxious and stressful during basic training. She also stated that she began having panic attacks during service. At the time of the examination, she continued to have panic attacks and was diagnosed with general anxiety disorder with panic attacks. The Veteran's employment was noted to be a stressor in September 1995. See March 2019 Treatment Records. A July 2006 VA treatment record reflects that the Veteran was seen for complaints of anxiety. She indicated that she had experienced anxiety in the past. See August 2006 Treatment Records. September 2006 VA treatment records reflect that the Veteran stated she had been diagnosed with panic disorder during her active duty service and that symptoms had occasionally recurred since then. It was noted that the Veteran was seen for treatment for panic disorder in August 2006. See October 2006 Treatment Records; see also November 2009 Treatment Records. Additional psychiatric diagnoses include anxiety disorder and pain disorder in May 2008 and depression in October 2018. See March 2014 SSA records and February 2019 CAPRI. Additional stressors in the Veteran's treatment records reference her mother's health and death in October 2018 and legal disputes in February 2020. See February 2019 CAPRI and March 2020 CAPRI. In November 2019, a private examiner opined that the Veteran's psychiatric disability, diagnosed as depression and anxiety, was as likely as not proximately caused by the Veteran's military service. The private examiner reviewed the Veteran's records and opined that chronic pain and hypertension, which the examiner noted to be service connected, can cause psychiatric disabilities. In May 2020, a private examiner opined that the Veteran's unspecified anxiety order is as likely as not secondary to chronic pain and financial issues caused by her service-connected hypertension, cervical spine disability, left hip disability, and lower back disability. The examiner explained that due to the complex overlap of endorsed symptoms it is inconceivable to differentiate specific causation for the Veteran's disability and that all conditions may contribute to the overall disability. The Board notes that the Veteran is not service connected for a left hip disability or a lower back disability, however it appears that it is not possible to distinguish the effects of the Veteran's service-connected disabilities from the Veteran's non-service-connected disabilities. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). In arriving to her conclusion, the private examiner cited an interview with the Veteran, a review of the Veteran's medical records, and supporting medical literature. In January 2021, a VA examiner provided a negative opinion regarding direct and secondary service connection of the Veteran's acquired psychiatric disorder. The examiner noted that while the while the June 2020 private examiner diagnosed the Veteran with unspecified anxiety disorder, the VA examiner found that "this diagnosis has been found to be made in error as a review of the Veteran's claims file demonstrates the Veteran's symptoms meet diagnostic criteria for generalized anxiety disorder, which is also the most recent diagnosis her treating provider has diagnosed her with and is well supported by the evidence in the claims file given the Veteran consistently reports generalized anxiety, which is excessive anxiety and worry that occurs more days than not for at least 6 months and the worry is about a number of events or activities." Regarding direct service connection, the examiner noted that the Veteran was not diagnosed with any acquired psychiatric disorder, to include an anxiety disorder, panic disorder, or depressive disorder, during her military service. The examiner acknowledged the Veteran's reports of experiencing anxiety and panic attacks during service but found that the objective evidence did not reflect as such. The examiner noted that the Veteran did not report any symptoms of an acquired psychiatric disorder nor was she treated for symptoms of an acquired psychiatric disorder during her military service. In December 1998, her psychiatric and personality functioning was evaluated and described as grossly normal. There is no evidence of psychiatric diagnosis or treatment in the claims file until 1995. Regarding secondary service connection, the VA examiner noted that scientific literature has not established hypertension or cervical spine conditions, or chronic pain conditions, cause anxiety disorders. The literature the June 2020 private examiner cites discusses that anxiety and depressive disorders can be comorbid with medical conditions and that more severe anxiety and depression are correlated with more medical conditions, which the VA examiner noted to be true, but the literature does not demonstrate that hypertension or cervical spine condition, or related chronic pain, cause, or is etiologically related to, anxiety disorders. The examiner went on to explain that the although the Veteran is diagnosed with generalized anxiety disorder, and while one of her worries/sources of anxiety is her chronic medical conditions, this is only one example of a source of worry and anxiety the Veteran experiences. Her treatment records show she worries about a number of things, with recent examples including her mother's illness, her mother's passing, COVID-19, politics, and finances. In fact, the Veteran's treatment records show she discusses anxiety and worry about her medical conditions relatively infrequently compared to the number of other sources of anxiety she has reported throughout the years. The VA examiner noted that to say the Veteran's generalized anxiety disorder is proximately due to her service-connected hypertension and cervical spine pain is to say that without these conditions, the Veteran would not otherwise have generalized anxiety disorder. However, the VA examiner found this to be unsupported given the Veteran continues to evidence generalized worry and anxiety symptoms about many things other than her service-connected physical conditions. Lastly, the VA examiner opined that there is no evidence of a permanent increase (aggravation) in Veteran's generalized anxiety disorder, panic disorder, or unspecified depressive disorder. Rather, these symptoms fluctuate over time and her anxiety is triggered by multiple life stressors, often social stressors, and not limited to her service-connected physical conditions. These fluctuations in anxiety, panic attacks, and depression are consistent with the natural course and natural progression of these respective mental disorders. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disability, on a direct and secondary basis. While the evidence of record shows that the Veteran has been diagnosed with an acquired psychiatric disability, the most persuasive evidence demonstrates it is not related to service or to her service-connected disabilities. In this regard, the Board places great probative weight on the January 2021 VA examiner's opinion as it sets out clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner provided a detailed analysis of the Veteran's medical records, noting that she was not diagnosed with a psychiatric disability until 7 years after service, found that the medical evidence reflected that the Veteran' psychiatric disability was due factors other than the symptoms of her service-connected disabilities, and that the fluctuations in symptoms were consistent with the natural course and natural progression of her respective mental disorders. In contrast, the November 2019 private examiner opined that chronic pain and hypertension, which the examiner noted to be service connected, can cause psychiatric disabilities. The Board finds the examiner's use of "can" to be speculative and affords the opinion little probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without additional rationale or supporting data, is speculative). Furthermore, the Board affords the May 2020 a private examiner's opinion little probative value as well. Although, the private examiner opined that the Veteran's unspecified anxiety order is as likely as not secondary to chronic pain and financial issues caused by her service-connected hypertension, cervical spine disability, left hip disability, and lower back disability; the examiner did not discuss medical evidence of other stressors such as the Veteran's statements from May 1993 during which the Veteran was seen in an emergency room for panic attacks and stated that the first episode occurred 4 months after losing her job. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (Board may properly consider failure of medical examiner to conduct complete and accurate review c-file where it explains why a review was "necessary or important in forming the appropriate medical judgment"). Furthermore, the examiner did not opine as to whether the Veteran's psychiatric disability was aggravated by her service-connected disabilities. The Board has considered the Veteran's contentions that her past symptoms, current symptoms and diagnoses are related to her service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that they have observed and are within the realm of their personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In the instant case, the Board finds that questions regarding the potential relationship between the Veteran's disability and any instance of service or service-connected disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more comp1ex medical questions). Thus, while the Veteran is competent to describe the manifestations of her psychiatric disability, the Board must accord her lay statements regarding the etiology of her psychiatric disability little probative value. Based on the foregoing, the Board must find that the current psychiatric is not shown to be causally or etiologically related to any disease, injury, or incident during service or proximately due to or aggravated by a service-connected disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.