Citation Nr: 21042004 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-06 984 DATE: July 11, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for bilateral hip disabilities is denied. Entitlement to service connection for bilateral knee disabilities is denied. FINDINGS OF FACT 1. A current lumbar spine disability did not manifest during service and arthritis was not manifest within one year of separation. A current lumbar spine disability is unrelated to service. The in-service lumbar complaint was acute and resolved. 2. Bilateral hip disabilities did not manifest during service and arthritis was not manifest within one year of separation. A bilateral hip disability is unrelated to service. 3. Bilateral knee disabilities did not manifest during service and arthritis was not manifest within one year of separation. A bilateral knee disability is unrelated to service. CONCLUSIONS OF LAW 1. A current lumbar spine disability not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Bilateral hip disabilities were not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Bilateral knee disabilities were not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript of the hearing is of record. during the hearing, the VLJ clarified the issues on appeal, explained the concepts of service connection to include for chronic diseases such as arthritis, inquired as to whether there was additional evidence to be submitted, held the record open for an additional 60 days to allow the Veteran to submit additional evidence, and elicited relevant testimony from the Veteran. These actions comply with the duties owed during a hearing set forth in 38 C.F.R. § 3.103. SERVICE CONNECTION Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Service connection for a lumbar spine disability. 2. Service connection for bilateral hip disabilities. 3. Service connection for bilateral knee disabilities. The Veteran seeks service connection for a lumbar spine, bilateral hip, and bilateral knee disabilities. She primarily contends her current disabilities are related to marching, carrying heavy equipment, and her job duties moving cargo during service. Service treatment records show that in April 1990 the Veteran went to an emergency room with complaints of lower back pain in April 1990 that had started approximately two weeks prior. Loss of lumbar curve and moderate to marked muscle spasm were noted, and she was assessed with a low back strain. Records show she was placed on quarters for a day due to lumbar strain, and no trauma was noted. A June 1990 periodic examination report shows a clinically normal evaluations of the spine, but abnormal evaluations of the lower extremities. The examination report noted the Veteran's left leg was shorter than the right and caused an approximately one-inch pelvic tilt to the left. No reference was made to the Veteran's knees. A July 1990 consultation sheet shows the Veteran's left leg was shorter than the right causing left pelvic tilt with no complaints. August 1990 podiatry notes reflect the Veteran complained of right hip pain and that she was diagnosed with limb length discrepancy and scoliosis when she was a teenager. The left leg was measured approximately one-inch shorter than the right, and she was scheduled to receive a left heel lift shoe insert. An October 1993 record does show left leg pain following a car accident, but no knee, hip, or lumbar spine injury or symptoms were noted. An October 1995 periodic examination report shows a clinically normal evaluations of the lower extremities, the spine, and the musculoskeletal system. March 1996 treatment records for back pain notes the left leg is shorter and the Veteran had worn shoe inserts for nine years. In March 1996 the Veteran was treated in an emergency room for complaints of lower back pain for a few days. She reported no specific injury, and that the pain sometimes felt like a spasm. She was assessed with a muscle strain or spasm, and prescribed Naprosyn and Flexeril. The next day she complained of worsening pain the next day and reported that it hurt to walk or move her back. She denied any recent trauma. She was assessed with a lumbar muscle spasm at the L3 to S1 vertebral area and prescribed bed rest for 4-5 days. There is no separation examination or report of medical history of record. In a November 2012 statement the Veteran reported that during service her back and knees would be aggravated and hurt while carrying MOP gear in Korea and that she would take motrin and generally ignore the pain. The Veteran submitted a lay statement from J.K., who served with her at Sheppard Air Force Base in Texas and Kunsan Air Base in Korea, stating that she complained of back, hip, and knee pain during service and struggled with pain while carrying duffle bags and MOP gear during inspections and exercises. Another lay statement from M.B., who also served with the Veteran, states she consistently had problems with her back and hip during service. The Veteran was provided a VA back examination in January 2013. She reported that low back pains started during military service due to marching, hiking, and carrying backpacks. She denied any known trauma or injury, stated the back pain had been gradually increasing over the years, and that she had not been diagnosed or treated for a lower back condition by a physician. The examiner noted that imaging studies showed arthritis of the spine and diagnosed chronic degenerative lumbar spondylosis. The examiner determined that the chronic degenerative lumbar spondylosis was not caused by or a result of active military service. The examiner determined that the conditions shown in the service medical records, acute back spasms treated in April 1990 and March 1996, resolved with appropriate treatment as evidenced by the silence of the service medical record for continued subsequent treatment until the Veteran separated from the military. There was a significant silent interval between the Veteran's separation from the military and seeking care or compensation for the claimed condition. The examiner explained that disc degeneration and accompanying arthritis is a common development, and that age-related changes are present in 40 percent of adults over age 35 years and in almost all individuals over age 50. The examiner also noted that the Veteran had scoliosis with mild leg length discrepancy that pre-existed service, and that there was no objective evidence that military service aggravated the scoliosis beyond normal, natural progression. The Veteran was also provided a VA examination for her hips in January 2013. She reported bilateral hip pain that started during service because of marching, hiking, and carrying backpacks. She denied any trauma or specific injury, stated the back pain had been gradually increasing over the years, and that she had not been diagnosed or treated by a physician. Range of motion testing showed limited right and left hip flexion with pain. The examiner noted that imaging studies showed bilateral hip arthritis and diagnosed bilateral hip degenerative arthritis. The examiner determined that the bilateral hip arthritis was not caused by or a result of active military service. The examiner explained there is a high (approximately 30 percent) incidence of osteoarthritis by the age of 50, and that in the Veteran's case, there was a substantial silent interval between the original precipitating event of hip pain in service and the Veteran seeking medical treatment or compensation for the condition. The examiner concluded the Veteran's hip arthritis is consistent with a normal aging process, and was a stand-alone entity neither due to or aggravated by her military service. The examiner also noted that the Veteran had scoliosis with mild leg length discrepancy that pre-existed service, and that there was no objective evidence that military service aggravated the scoliosis beyond normal, natural progression. Post-service VA treatment records show right hip degenerative joint disease in March 2015. The Veteran reported that her back had "gone out" in December 2015. She denied injury but reported her back goes out sometimes. January 2016 treatment notes show the Veteran complained of chronic back pain, and x-rays had shown osteoarthritis. A December 2016 physical therapy consultation for back pain reflects that mild degenerative disc disease was identified in the January 2016 lumbosacral spine x-rays. The Veteran reported the back pain had been going on and off for years and stemmed from her time in the military. She complained of chronic right hip pain in January 2016, and intermittent hip pain that limited physical activity in July 2016. December 2016 physical therapy records show decreased bilateral hip range of motion and strength. She reported chronic hip pain again in August and September 2018. In January 2019 she reported that physical therapy had not helped with her hip pain. February 2019 x-rays showed moderate right and mild left hip osteoarthritis. A May 2019 physical therapy consultation notes intermittent pains in both hips, and that the Veteran attributed the pains to lifting and moving freight during service. The first VA treatment records referencing knee pain are from February 2018, where the Veteran reported chronic bilateral knee pain that had lasted for years. February 2019 x-rays showed mild tricompartmental degenerative changes and effusion of both knees. She was assessed with bilateral patellofemoral pain syndrome during the May 2019 VA physical therapy consultation. An October 2016 nexus opinion from Dr. A.B., the Veteran's VA physician, states that after review of the Veteran's medical records and military history, it is more likely than not that her hip, knee, and back conditions are related to service. An August 2018 nexus opinion from Dr. A.B. states after review of records and physical examination, the Veteran had degenerative overuse arthritis and spondylosis of the knee, hip, and back that is related to her time in the military and related to the heavy, repeated physical activity required in the military. An August 2018 statement from B.M. reflects she was the Veteran's supervisor from 1987 to 1990 and that the Veteran constantly complained of back issues and pain while working with freight. B.M. also noted two incidents where the Veteran called complaining of severe back pain, was unable to walk or stand and care for herself and was taken to a clinic for medical attention. The Veteran testified at a Board hearing in March 2021. Regarding her back, she had worked with freight and cargo lifting and packing items into crates and loading crates into aircraft. She reported that one morning she woke up and could not move due to back pain, and one of her co-workers had taken her to a doctor, that the same thing had happened at least a couple of times, and that she was given time off following each incident. She had pain in her back throughout service and generally reported that the pain had continued since discharge. Regarding her hips, the Veteran reported that she did not injure her hips during service, and that her hip conditions were secondary to her back conditions. Regarding her knees, she reported that she did not injure her knees during service but did testify that she had performed physical training running on roads. For a medical opinion to be given probative weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. Id. at 304. Regarding the Veteran's lumbar spine, we find the January 2013 VA opinion is probative on the question of whether a current lumbar spine disability left knee condition was incurred in or caused by service. The examiner rendered the negative opinion after reviewing the claims file and relevant medical records. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The opinion is consistent with the Veteran's documented medical history. Post-service treatment records are absent any treatments or pathologies of the lumbar spine for nearly 17 years after the Veteran separated from service. The examiner's rationale that is supported by the other evidence of record. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The examiner also noted the Veteran's in-service treatments and diagnoses and determined these conditions had resolved and were not related to the current degenerative spondylosis and cited relevant medical literature in support of the opinion. In regard to scoliosis, we find that the presumption of soundness is not raised, despite the medical opinion. Here, scoliosis was not noted at entrance. In addition, scoliosis was not identified at any time during service or in proximity to service. In sum, despite the medical opinion, scoliosis was not manifest during service and is not attributable to service. To the extent that the Veteran has reported that scoliosis preexisted service, based upon the record in front of us, such assertion is not credible. Regarding the Veteran's hips, we also find the January 2013 VA opinion is probative on the question of whether current bilateral hip disabilities are due to or aggravated by service. The examiner rendered the negative opinion after reviewing the claims file and relevant medical records. The opinion is consistent with the Veteran's documented medical history. Post-service treatment records are absent any treatments or pathologies of the hips for many years after the Veteran separated from service. The examiner's rationale is generally supported by the other evidence of record. The examiner also noted the Veteran's in-service hip complaints and determined the bilateral hip arthritis was consistent with aging. Pertinently, the examiner also determined the hip disabilities were not aggravated by service. There is little probative medical evidence that the Veteran's leg length discrepancy was permanently aggravated or progressed during her service, to include her reports of pain in 1990. Subsequent medical examination reports revealed clinically normal lower extremities. There is no contrary opinion of record regarding aggravation. The October 2016 and August 2018 nexus opinions from Dr. A.B. are of less probative than the VA nexus opinions. Dr. A.B. rendered her opinions following a review of the medical records and the Veteran's history. However, the opinions are conclusory and unsupported by rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). While there is no reasons-or-bases requirement imposed on nexus opinions, conclusions must be supported with an analysis that the Board can consider and weigh against contrary opinions. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board considered the lay statements of record. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay people are competent to testify to visible or otherwise observable symptoms of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In particular, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Here, the Veteran is competent to report lay observable symptoms such as pain and is competent to report continuous symptoms since service. Layno, 6 Vet. App. at 469; Jandreau, 492 F.3d at 1376-77. She is also competent to report that medical professionals have determined her current hip, knee, and lumbar spine disabilities, to include arthritis, are due to service. Indeed, Dr. A.B. provided two positive nexus opinions. However, the Veteran's recounting is of no greater probative value than the evidence upon which it is based. As explained above, Dr. A.B.'s nexus opinions are of little probative value because they are conclusory and unsupported by rationale. Regarding the Veteran's back, there is little probative medical evidence suggests the current lumbar spine pathologies are related to in-service strains and muscle spasms. Arthritis and spondylosis were not documented (noted) in service, and the Veteran does not currently have a lumbar strain or spasms that were diagnosed during service. The Veteran did have and was treated for back pain during service, and her reports of back pain during service are credible. She is competent to report ongoing, gradually worsening back pain since service. However, the Veteran had a lumbar strain in 1990, and muscle spasms in 1996. There is no indication of degenerative changes or arthritis of record during service, and no probative evidence the in-service manifestations are related to her current degenerative pathologies. Regarding her hips, the Veteran did complain of right hip pain during service, and her reports of right hip pain during service are credible. We note the record is absent any complaints of left hip pain during service. She is competent to report ongoing, gradually worsening hip pain since service. However, the Veteran complained of hip pain once during service in 1990, and thereafter the 1995 report of medical examination shows clinically normal lower extremities. There is similarly little probative medical evidence that the Veteran had degenerative changes of her hips during service, and no probative evidence the in-service manifestations are related to her current degenerative pathologies. The record is also absent any documented medical complaints of left hip pain during service. The service treatment records are also silent for any knee symptoms, injuries, or complaints. Although there were lower extremity abnormalities on the 1990 medical examination, none referred to the Veteran's knees. The lower extremities were clinically normal during the 1995 examination report. While lay evidence of continuity of symptomatology cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence showing knee symptoms, complaints, or disabilities during service or for many years following service is considered and weighed against the claim. See Buchanan, 451 F.3d at 1336-37. The same lack of post-service evidence until 2013 regarding the Veteran's back and hips also weighs against those claims. We accept that the Veteran had right hip and lumbar spine complaints during service. However, the multi-year gap between discharge from active duty service and evidence of the current lumbar spine and hip pathologies many years later is also viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As noted above, the Veteran has arthritis of the lumbar spine and her hips and knees. Arthritis is identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). While there is a post-service diagnosis, arthritis was not identified (noted or diagnosed) during service or within one year of separation from a qualifying period of service. Arthritis was first identified in the back, knees, and hips many years after the Veteran separated from service. The Veteran did have and was treated for back pain during service, and right hip pain once during service. Her reports of back and hip pain during service are credible. She is also competent to report ongoing, gradually worsening pain since service. However, the Veteran had a lumbar strain in 1990, right hip pain in 1990, and lumbar muscle spasms in 1996. There were no treatments during service for the Veteran's knees. An October 1995 periodic examination report shows a clinically normal evaluations of the lower extremities, the spine, and the musculoskeletal system. There is no indication of degenerative changes or arthritis of record during service or within one year of service. The lack of contemporaneous medical evidence showing degenerative changes or arthritis during service or until January 2013 is considered and weighed against the Veteran's lay statements regarding continuity of symptomatology and whether her current arthritis is related to service. Pertinently, there is no probative medical evidence of record showing a nexus between the in-service pathologies and symptoms, and the current arthritis of the lumbar spine, hips, and knees. As explained above, Dr. A.B.'s positive nexus opinions are conclusions with no rationale and are less probative than the January 2013 examiner's nexus opinion. The Veteran did not have characteristic manifestations of arthritis to identify the disease entity during service or within one year of separation. 38 C.F.R. § 3.303 (b). In conclusion, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for lumbar spine disability, bilateral knee, and bilateral hip disabilities. Although the Veteran was treated for lumbar spine and right hip problems during service, the current arthritis was reported in the record many years after service and has not been attributed to service by probative, competent medical evidence. Dr. A.B.'s positive opinions did not contain substantive rationale and is outweighed by the better supported opinions of the January 2013 VA examiner. In reaching our conclusion, we note the Veteran was not afforded VA examinations, and no VA opinion was obtained, for her knee disabilities. However, no examination is necessary for the adjudication of the claim. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. C.F.R. § 3.159 (c)(4). In in determining whether the duty to assist requires that a VA medical examination be provided, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Considering the McLendon factors, there is ample evidence that the Veteran has bilateral knee disabilities. However, the more probative evidence, including multiple in-service examination reports, establishes a lack an any in-service event, injury, or disease relating to the Veteran's knees. Although the Veteran is competent to testify as to the existence of symptoms during and continuing since service, we find the in-service medical record and contemporaneous post-service records more probative. Arthritis did not manifest during an applicable presumption period. There is sufficient evidence to decide the claim. In sum, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.