Entitlement to service connection for a right hip disability, to include as secondary to service-connected back and radiculopathy disabilities, is denied.
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Citation Nr: 19121748 Decision Date: 03/26/19 Archive Date: 03/23/19 DOCKET NO. 11-27 386 DATE: March 26, 2019 ORDER Entitlement to service connection for a right hip disability, to include as secondary to service-connected back and radiculopathy disabilities, is denied. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected back and radiculopathy disabilities, is denied. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected back and radiculopathy disabilities, is denied. FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran has a right hip disability for service connection purposes. 2. The evidence of record is against a finding that the Veteran has a bilateral knee disability for service connection purposes. 3. The evidence of record is against a finding that the Veteran has a bilateral ankle disability for service connection purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability, to include as secondary to service-connected back and radiculopathy disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected back and radiculopathy disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected back and radiculopathy disabilities, 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 served on active duty from June 2000 to June 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In April 2015, the Board remanded the Veteran’s service connection claims for a right hip disability, bilateral knee disability, and bilateral ankle disability for further development with the RO. In October 2017, the Board remanded the claims for the RO to comply with the April 2015 Board remand directives. In April 2018, the Board again remanded the appeal for additional development, specifically to issue a supplemental statement of the case. Entitlement to service connection for a right hip disability, bilateral knee disability, and bilateral ankle disability, to include as secondary to service-connected back and radiculopathy disabilities The Veteran claims service connection for a right hip disability, a bilateral knee disability, and a bilateral ankle disability, which she believes is due to her service-connected back disability and radiculopathy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. In general, service connection on a direct basis requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). To warrant service connection, the threshold requires competent evidence of the existence of the claimed disability at some point during the pendency of the Veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Absent competent evidence of the existence of a disability, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. The Veteran contends that her right hip, bilateral knee, and bilateral ankle problems, all initially manifested during active service. In an October 2009 statement, the Veteran asserted that her knee and hip pain were caused from running on cement while she was on active duty. In an October 2017 statement, the Veteran asserted that her ankle, knee, and hip conditions were caused by her low back condition and/or radiculopathy. In-service treatment records are silent as to any complaints, treatment, or diagnoses of a right hip, bilateral knee, or bilateral ankle disorder while in service, and the record is silent as to any in-service injury, event, or illness to same. Further, a confirmed diagnosis of any right hip, bilateral knee, or bilateral ankle disorder is not shown at any time during the appeal period, and the Veteran, to date has not submitted any medical evidence showing that she has been diagnosed with a right hip disability, a bilateral knee disability, or a bilateral ankle disability. Review of the Veteran’s VA and private treatment records also has not revealed a right hip, bilateral knee, or bilateral ankle disorder. The Veteran’s post-service records include an October 2007 chiropractic note that the Veteran reported pain radiating down her left leg, causing numbness and tingling down her leg into the last two toes of her left foot and a December 2007 private treatment note that the Veteran had mild left plantar flexion weakness with an absent left ankle reflex. Additionally, a February 2008 spine examination note indicated that the Veteran has a mild limp to the left, hops poorly on her left foot, cannot squat, and has a left ankle jerk which is 1+. Maryland Physical Therapy treatment notes from February 2008 also recorded ankle pain, minor lateral hip pain, and numbness in her left calf and toe. In March 2013, a private examiner, Dr. Bash, noted the Veteran had a loss of left achilles, mild left plantar flexion weakness, and numbness in the lateral aspect of her left foot. The examiner did not diagnose the Veteran’s claimed hip, knee, or ankle conditions nor did he provide an opinion as to whether any hip, knee, or ankle conditions were related to the Veteran’s time in service. Finally, in March 2018, the Veteran underwent a peripheral nerves VA examination. The examiner diagnosed the Veteran with sciatica that affects her left side and noted that her knee and ankle flexion were of normal strength and that her gait was normal. Accordingly, the Board finds that there is no current diagnosis associated with the right hip, knee, and ankle and her associated pain has not been associated with an established inservice event, injury, or disease or another service-connected disability. The Board has considered the Veteran’s contentions that she experienced right hip, bilateral knee, and bilateral ankle problems as a result of her time in service and from her service connected disabilities. Although she is competent to report her symptoms, the issue of whether she has a current right hip, knee, and ankle disability, to include radiculopathy, is a complex medical matter that is, not capable of lay observation. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to make such a diagnosis. Id; see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Thus, to the extent that the Veteran’s statements are offered as proof of a diagnosed disability or that her pain is related to service, her statements are not to be considered as competent evidence favorable to her claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges the Veteran has not been afforded VA examinations with respect to her hip, knee, and ankle claims. However, a remand for these examinations is not warranted because the McLendon elements necessitating such examinations have not been met. McLendon v. Nicholson, 20 Vet. App. 79 (20096). Specifically, there is insufficient evidence of record suggesting that an event, injury, or disease occurred in service to warrant an examination and there is no evidence of a current diagnosis or persistent or recurrent symptoms of the claimed disabilities. In light of the foregoing, the Board finds that the preponderance of the evidence is against the finding that the Veteran has a current diagnosis of any right hip, bilateral knee, or bilateral ankle disability as a consequence of an event, injury, or illness in service, or as secondary to a service-connected disability. As such, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim of entitlement to service connection for a right hip, bilateral knee, and bilateral ankle disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v Derwinski, 1 Vet. App. 49, 54 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Purcell, Associate Counsel