Citation Nr: 21040892 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-04 587 DATE: July 7, 2021 ORDER 1. Entitlement to service connection for a bilateral hip disorder, to include as secondary to the service-connected bilateral knee disability, is denied. 2. Entitlement to service connection for a bilateral leg disorder, to include as secondary to the service-connected bilateral knee disability, is denied. 3. Entitlement to service connection for a sleep disorder (including sleep apnea), to include as secondary to the service-connected broken nose residuals, is denied. 4. Entitlement to service connection for a cervical spine disorder, as secondary to the service-connected bilateral knee disability, is denied. 5. Entitlement to service connection for a left shoulder disorder, as secondary to the service-connected bilateral knee disability, is denied. 6. Entitlement to service connection for migraine headaches, to include as secondary to the claimed cervical spine disorder, is denied. REMANDED 1. The issue of entitlement to a disability rating greater than 30 percent for residuals, right knee injury, postoperative, with traumatic arthritis and recent ACL (anterior cruciate ligament) reconstruction, (right knee disability) is remanded. 2. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 27, 2012 is remanded. FINDINGS OF FACT 1. The Veteran has not been diagnosed with a bilateral hip disorder during the pendency of his claim. 2. The Veteran has not been diagnosed with a bilateral leg disorder during the pendency of his claim. 3. The Veteran's sleep disorder is not caused or aggravated by a disease or injury in service or a service-connected disability. 4. The Veteran's cervical spine disorder is not caused or aggravated by a service-connected disability. 5. The Veteran's left shoulder disorder is not caused or aggravated a service-connected disability. 4. The Veteran's migraines are not caused or aggravated by a disease or injury in service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 2. The criteria for entitlement to service connection for a bilateral leg disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 3. The preponderance of the evidence shows that the Veteran's sleep disorder did not have its onset in service, and was not caused or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 4. The preponderance of the evidence shows that the Veteran's cervical spine disorder was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 5. The preponderance of the evidence shows that the Veteran's left shoulder disorder was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 6. The criteria for service connection for migraines as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1980 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before a Veterans Law Judge (VLJ) at a Board videoconference hearing in June 2014. Unfortunately, a transcript of this hearing could not be obtained, and the Veteran was afforded a second Board videoconference hearing before the undersigned VLJ in April 2016. A transcript of the April 2016 proceeding has been associated with the claims file. The issue of entitlement to a TDIU was not certified for appeal. However, in the September 2016 decision, the Board found that the issue of entitlement to a TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2016, the Board reopened the claim for service connection for a left shoulder disorder and remanded the issues listed above for further development. Additionally, the Board remanded the issues of entitlement to an initial disability rating greater than 10 percent for left knee degenerative arthritis, as well as the propriety of the September 1, 2009 rating decision reducing the Veteran's disability rating for his service-connected right knee injury residuals from 40 percent to 30 percent effective April 24, 2009, for the issuance of a Statement of the Case (SOC). The RO issued a SOC addressing these issues in August 2019. However, the Veteran did not file a VA Form 9 perfecting the appeal regarding these matters. As such, they are not currently before the Board. The Board also notes that the issues of entitlement to service connection for residuals of a broken nose and of a broken right wrist were previously remanded. An August 2018 rating decision granted service connection for residuals of a broken nose, with deviated septum, and awarded a 10 percent disability rating effective April 24, 2009. An August 2020 rating decision granted service connection for right wrist arthritis and awarded a 10 percent disability rating effective April 24, 2009. As this represents a full grant of the benefits sought, these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial ratings or effective dates assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a bilateral hip disorder and a bilateral leg disorder is denied. The Veteran contends that he experiences bilateral hip and leg conditions that are related to falls resulting from his service-connected knee disabilities. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Likewise, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In the instant case, the Board notes that the post-service treatment records reflect complaints related to tingling in the Veteran's right leg, as well as pain in both legs. See VA Treatment Record dated June 15, 2012. However, treatment providers have not diagnosed him with a corresponding bilateral leg condition, nor a bilateral hip condition. Although service treatment records contain a notation of leg cramps in January 1984, there is no evidence to support that a current disability exists regarding the Veteran's legs. In March 2017, a VA examiner diagnosed him with shin splints. However, the November 2020 VA examiner concluded that the diagnosis of shin splints was made in error, and that the Veteran did not have a diagnosis of bilateral leg disability separate from his service-connected knee disabilities. She explained that the symptomatology reported by the Veteran was associated with the knee disabilities and that there were no reported symptoms consistent with any other lower leg disorder, to include shin splints. Furthermore, there is no evidence of record confirming a diagnosis of a bilateral hip disorder. Thus, the probative evidence of record fails to demonstrate a current diagnosis related to the claimed bilateral leg and bilateral hip conditions. Although the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of either disability prior to the Veteran's claim, nor evidence of functional impairment attributed to these complaints. The Board has considered the Veteran's general allegations that these conditions are related to his service-connected knee disabilities. He is competent to report having pain or discomfort, but the evidentiary record does not reflect that this pain has been attributed to a specific disability, or produced functional impairment. The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that at issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, these diagnoses involve medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose these conditions, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert, supra. There is also no persuasive evidence that he has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of either a bilateral leg disorder or a bilateral hip disorder for the entire appeal period; there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. Additionally, pain without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted). Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). 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 of entitlement to service connection for a bilateral leg disorder and a bilateral hip disorder. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for a sleep disorder (including sleep apnea), to include as secondary to the service-connected broken nose residuals, is denied. The Veteran has been diagnosed with sleep apnea and sleep-disordered breathing. See November 2018 VA Examination Report. The Board acknowledges that the Veteran attributes his sleep apnea to his service-connected broken nose residuals. See April 2016 Board Hearing Transcript p. 12. The Veteran has not contended that his sleep apnea is directly related to his military service. Furthermore, no diagnosis of a sleep disorder, to include sleep apnea, was rendered in service, and there are no probative medical opinions in favor of the claim. In November 2020, a VA examiner opined that the Veteran's claimed sleep disorder was unlikely secondary to the service-connected broken nose residuals. She explained that a fracture or deviated septum is anatomically distant from the site of the breathing obstruction that causes sleep apnea. Thus, it was not medically plausible that a deviated septum resulting from a broken nose would cause or exacerbate the sleep apnea beyond its normal progression. The examiner also explained the alternative risk factors for sleep apnea, including gender, obesity, and craniofacial abnormalities. She noted that the Veteran had an oropharyngeal structure that predisposed him to obstructive sleep apnea. The Board affords this opinion significant probative weight, based upon the examiner's thorough evaluation of the Veteran's medical history, as well as her detailed rationale. She further attributed the sleep apnea to an alternative etiology based upon medical literature. Thus, it is the only probative opinion of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes the opinion provided by the November 2018 VA examiner indicating a link between the sleep disorder and the service connected deviated nasal septum. However, she failed to provide a rationale in support of her conclusions, but instead reiterated the Veteran's related medical history. Thus, this opinion is not considered probative. The Board appreciates that the Veteran believes that his current disability is related to his service-connected broken nose residuals, and that he is competent to report his personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords these lay opinions no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, determining whether sleep apnea is due to a respiratory injury, falls outside the realm of common knowledge of a lay person. See Jandreau, supra. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Because the Veteran's lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran's assertion that his sleep disorder was caused by his service-connected broken nose residuals or any in-service event. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and service connection for a sleep disorder, to include sleep apnea, on a direct and secondary basis, is denied. 3. Entitlement to service connection for a cervical spine disorder and left shoulder disorder, to include as secondary to the bilateral knee disability, is denied. The Veteran asserts that his cervical and left shoulder disorders are the result of falls and instability related to his service-connected bilateral knee disability. Accordingly, the Board will only address the theory of secondary service connection for these conditions, as this is the only theory raised by the Veteran or reasonably raised by the evidence of record. The Veteran has been diagnosed with degenerative arthritis of the spine. See VA Examination Report dated March 2017. He has also been diagnosed with traumatic arthropathy of the left shoulder and a left shoulder strain. See VA Treatment Record dated June 21, 2010; VA Examination Report dated March 2017. Thus, the first element of a service connection claim is satisfied. At the April 2016 Board hearing, the Veteran contended that these conditions were caused by multiple falls due to his service-connected knee disabilities. See April 2016 Board Hearing Transcript p. 3-6. He indicated that he experienced whiplash following a fall in the shower (at which time he also broke his nose) and he believed that fall resulted in an injury to his cervical spine. Id. At the time of the hearing, he stated that he had fallen between 20 and 30 times in the past year due to instability in his knees. Id. He further attributed his left shoulder disability to a fall while walking up a flight of stairs when his right knee gave out. Id. at 23-25. In this case, the preponderance of the evidence is against a finding that there is a link between the Veteran's cervical spine and left shoulder disorders and his service-connected bilateral knee disability. In November 2010, a VA examiner concluded that the cervical spine disability was less likely than not related to instability of the service-connected right knee. He explained that the Veteran had reported experiencing neck pain for several years prior to the fall that resulted in his broken nose. In March 2017, a VA examiner opined that the cervical spine condition was related to a fall during an in-service sporting event. However, he failed to provide a rationale in support of this opinion. He further opined that the left shoulder condition was less likely than not related to service, but conversely reasoned that the injury could have occurred during the reported sporting event. In November 2018, a VA examiner opined that the cervical spine and left shoulder conditions were unrelated to the right knee disability. She explained that the arthritis in the separate joints was unrelated. In November 2020, a VA examiner concluded that the cervical spine disorder was less likely than not the result of or aggravated beyond its natural progression by the service-connected knee disability, or any associated falls. She explained that medical literature did not support joint arthritis resulting in degenerative spinal changes. She acknowledged the Veteran's falls due to instability in his knees. However, she explained that a fall would not predispose an individual to the development of cervical spondylosis in the absence of a cervical fracture. The examiner further noted alternative risk factors for cervical spine arthritis. The November 2020 examiner also concluded that the left shoulder disorder was less likely than not the result of or aggravated beyond its natural progression by the service-connected knee disability, or any associated falls. She explained that the Veteran's perceptions of his symptoms and their chronology were insufficient to address the pathophysiology of the left shoulder condition. She noted the variations in the reported symptoms and imaging results regarding the left shoulder injury. However, the examiner indicated that these variations did not support a medical link between the reports falls and diagnosed shoulder strain. The Board affords the November 2020 VA opinions a high probative value. In this regard, the examiner thoroughly reviewed the Veteran's file, to include all service treatment records, post-service treatment records and lay statements, and offered a comprehensive discussion analyzing all of the pertinent evidence of record and explaining the bases for the opinions. See Nieves- Rodriguez, supra. The examiner acknowledged the Veteran's reports of falls related to his knee instability, but sufficiently explained why such documentation did not provide a basis for service connection. She also based these conclusions on the medical documentation available in the record, as well as scientific reasoning. As these probative opinions are against the claims, and are the only probative opinions of record, the Board is persuaded that service connection for a cervical spine disorder and a left shoulder disorder is not warranted. As discussed above, lay persons are competent to provide opinions on some medical issues. See Kahana, supra. In this case, the Veteran is not competent to render an etiology opinion for his claimed disorders. Determining the etiology of the Veteran's cervical spine and left shoulder disorders requires medical inquiry into musculoskeletal processes and functioning. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Because the Veteran's lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran's assertion that his conditions were caused or aggravated by service-connected bilateral knee disability. As such, the preponderance of the evidence is against service connection for a cervical spine disorder and left shoulder disorder, as secondary to the service-connected bilateral knee disability. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for migraines, to include as secondary to the cervical spine disorder, is denied The Veteran also seeks service connection for migraines, which he contends are related to his cervical spine disorder. There is no dispute that the Veteran has been diagnosed with migraines during the appeal period. See VA Treatment Problem List dated December 8, 2015. At the April 2016 Board hearing, the Veteran indicated that he was claiming service connection for migraines as a result of his cervical spine disorder. See April 2016 Board Hearing Transcript p. 19-20. As discussed above, service connection for a cervical spine disorder has been denied by the Board. As service connection has not been granted for a cervical spine disorder, service connection cannot be granted for migraines as secondary to the cervical spine condition. 38 C.F.R. § 3.310. Further, none of the evidence indicates, nor does the Veteran contend that his migraines are due to his period of active service. Thus, the Board finds that service connection must also be denied on a direct basis. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for migraines. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of entitlement to a disability rating greater than 30 percent for the service-connected right knee disability is remanded. In September 2016, the Board remanded the increased claim for the service-connected right knee disability to obtain a new VA examination. The requested development has been completed, as an examination was conducted in November 2018. This development conducted by VA has produced new evidence that must be considered by the agency of original jurisdiction (AOJ) in a Supplemental Statement of the Case (SSOC). However, the AOJ has not issued a SSOC on the increased rating claim after the completion of this new development. Specifically, the Board notes that the RO will issue a SSOC if, pursuant to a remand by the Board, it develops evidence or cures a procedural defect, unless the only purpose for the remand is to assemble records previously considered and properly discussed in a prior Statement of the Case (SOC) or SSOC, or the Board specifies in the remand that an SSOC is not required. 38 C.F.R. § 19.31 (c). Accordingly, a remand is required for the issuance of a SSOC regarding the increased rating claim for the service-connected right knee. 2. The issue of entitlement to a TDIU, prior to July 27, 2012, is remanded. Although the Veteran was granted TDIU benefits following the Board's 2016 Remand, the matter regarding entitlement to a TDIU for the period prior to July 2012 remains, since the claim out of which this appeal arose was submitted in 2009. This too, should be the subject of a supplemental statement of the case before it is returned to the Board. The matters are REMANDED for the following action: Issue a SSOC on the increased rating claim for the right knee, and entitlement to TDIU prior to July 2012. M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.