OSTEOARTHRITIS

Summary

The veteran, who served in the U.S. Army from July 1975 to January 1978, appeals the denial of service connection for degenerative joint disease in his right hip and left knee. The Board reviewed the evidence, including service treatment records (STRs), VA examinations, and hearing testimony. For the right hip, the Board found no in-service notation of symptoms or diagnosis, nor did the condition manifest to a compensable degree within a presumptive period post-service. The Veteran's testimony regarding an in-service injury and light duty was inconsistent with STRs and his own initial VA treatment history. A VA examiner opined the right hip disability was less likely than not related to service, citing a lack of in-service complaints and no post-service records indicating a problem. The Board found the evidence did not persuasively support the claim, denying service connection. For the left knee, the Board noted a diagnosis of degenerative joint disease and a single in-service treatment note for a possible tendonitis injury in September 1977, with no follow-up or post-service indication of symptoms. The Veteran's testimony about continuous knee problems since service and treatment in Germany was inconsistent with his initial VA treatment history and STRs. A VA examiner initially opined the knee disability was less likely than not related to service, but later provided an opinion suggesting tendonitis could lead to arthritis, though this was based on a misreferenced post-service record. A subsequent VA examination in April 2023 confirmed osteoarthritis but stated tendonitis does not predispose to arthritis. The Board found no basis for presumptive service connection and insufficient evidence for direct service connection, denying the appeal.

Rationale

No in-service notation of hip symptoms or diagnosis; No manifestation to compensable degree within presumptive period; Veteran's testimony inconsistent with STRs and initial VA treatment; VA examiner opined less likely than not related to service

Full Decision Text

Citation Nr: 23067810
Decision Date: 12/27/23	Archive Date: 12/27/23

DOCKET NO. 15-34 952
DATE: December 27, 2023

ORDER

Entitlement to service connection for degenerative joint disease, right hip, is denied.

Entitlement to service connection for degenerative joint disease, left knee, is denied.

FINDINGS OF FACT

1. The Veteran's right hip disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

2. The Veteran's left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right hip disability are not met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for a left knee disability are not met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from July 1975 to January 1978.  These matters come before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran provided hearing testimony before the undersigned Veterans Law Judge in May 2019.  A transcript of that hearing is within the Veteran's claims file.  

In December 2019 and November 2022, the Board remanded the matters on appeal for additional evidentiary development.  The claims are now again before the Board.

The Board recognizes the most recent supplemental statement of the case (SSOC) was issued in June 2023.  Since that time, the RO added VA treatment records to the Veteran's claims file in November 2023.  These records show the ongoing presence of the disabilities claimed, which is recognized by the Board in the decision below.  The records do not address the matter of nexus between the Veteran's current disabilities and his active service.  Thus, the Board finds it need not delay the adjudication of these claims in order to obtain a waiver, because the records do not address the aspect of the claims that is under contention.

Service Connection

The Veteran contends he has right hip and left knee disabilities that are causally connected to his active duty.  Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331.  

Right Hip

The Veteran filed his right hip claim in March 2012.  He did not indicate the date this condition began on his claim form.  At the time of his initial evaluation with his VA primary care physician in January 2012, the Veteran reported
2, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331.  

Right Hip

The Veteran filed his right hip claim in March 2012.  He did not indicate the date this condition began on his claim form.  At the time of his initial evaluation with his VA primary care physician in January 2012, the Veteran reported having had right hip pain since 2002.  At the same time, the Veteran suggested having had trouble hearing since he got out of the military in 1978.  Thus, he was clearly considering symptoms dating back to the time of service, yet did not include any right hip symptoms as having existed since service.

At the time of the January 2012 treatment, the Veteran reported having been seen at "Beaumont Bone and Joint and has had CT Scans and MRI's."  He reported that this facility recommended a hip replacement.  During the remand development, the Veteran was afforded the opportunity to provide VA authorization to obtain private treatment records.  He did not respond with authorization to obtain records from the facility he identified in January 2012.

The claims file includes February 2012 x-ray findings confirming degenerative joint disease of the bilateral hips.  Thus, the Veteran does have a diagnosis of the disability claimed.  The question is whether there is any causal connection between the right hip disability and the Veteran's active service.  

Initially, the Board observes that there is no notation of a right hip disability in the Veteran's service treatment records.  The Veteran did not report any hip symptoms at the time of his July 1975 enlistment report of medical history, did not seek clinical treatment for his hip at any time during service, and did not report any hip symptoms at the time of his December 1977 report of medical history.  The December 1977 separation examination is also without indication of any right hip symptoms or diagnosis.

The Veteran was afforded a VA examination in July 2013.  The examiner confirmed the presence of right hip degenerative joint disease and noted the date of diagnosis as 2012.  The examiner confirmed review of the Veteran's claims file.  This examiner opined that the Veteran's right hip disability was less likely than not incurred in or caused by an in-service injury, event or illness.  The examiner explained that there is no indication in the Veteran's service treatment records of hip problems, and no indication of any hip issues immediately after the Veteran's service.  

At the May 2019 Board hearing, the Veteran testified that his hip problems started in the military; that he fell in service and sought medical treatment; and that he was placed on light duty.  The Board notes that this is inconsistent with the report he gave to his healthcare provider in January 2012.  He reported then that he had right hip symptoms since 2002.  Also, the Veteran's service treatment records do not show the Veteran sought treatment of his right hip, or that he was prescribed medication for his hip, or put on light duty for his hip.  There is no indication of right hip symptoms in service.  Thus, the Veteran's hearing testimony is inconsistent with what the service treatment records show and inconsistent with the history of symptoms reported at the time of the Veteran's initial VA treatment in January 2012.

The Board again notes that the Veteran was afforded the opportunity to provide VA with authorization to assist him in obtaining relevant private treatment records related to his hip.  The Veteran, however, did not respond with any such authorization; thus, the Board must decide this matter with the evidence of record.  

Because there is no evidence of an in-service notation of right hip arthritis with symptoms continuing ever since, and no indication of a diagnosis of right hip arthritis within one year of the Veteran's separation from service, there is no basis upon which to grant the Veteran's appeal on a presumptive basis.  Further, because the probative evidence does not show the Veteran's current right hip disability is at least as likely as not related to any aspect of the Veteran's active service, there is no basis for awarding service connection on a direct basis.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence in this case does not persuasively support the Veteran's claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v.
 service, there is no basis upon which to grant the Veteran's appeal on a presumptive basis.  Further, because the probative evidence does not show the Veteran's current right hip disability is at least as likely as not related to any aspect of the Veteran's active service, there is no basis for awarding service connection on a direct basis.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence in this case does not persuasively support the Veteran's claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F. 4th. 776 (Fed. Cir. Dec. 17, 2021).  The appeal is denied.

Left Knee

The Veteran also filed his left knee claim in March 2012.  At the time of his initial treatment with VA in January 2012, the Veteran reported having bilateral knee pain since 2002.  March 2012 VA treatment records show the assessment as degenerative joint disease in both knees.  In February 2020 at the time of a VA examination, x-rays were taken of the left knee, which revealed joint space narrowing in the lateral compartment of the knee joint and suprapatellar joint effusion.  The VA examiner at this time also noted the Veteran having bilateral knee strain.  Thus, the presence of a current left knee disability is established and the question on appeal is whether the current knee disability is causally connected to the Veteran's active service.

The Veteran's STRs show he entered service in sound condition with no knee abnormalities.  On his July 1975 Report of Medical History, he reported no history of symptoms with the knees.  In September 1977, he reported with left knee pain.  The Veteran described this at the time as a "reoccurring injury" but did not give any history of prior knee pain.  Instead, he reported falling during training the prior evening and that he had a slight pop in his left knee while raising it in a sitting position.  The clinician examining the Veteran at the time noted that there was no swelling or discoloration.  The assessment was noted as "? tendonitis."  The clinician indicated the Veteran was to "see disp for precautionary eval & treatment."  A report of the same day shows the Veteran was seen by physical therapy.  Left knee pain was recorded and the note indicated the treatment was to instruct the Veteran in "quad strengthening Bilateral."  There was no follow up treatment.  Several months later, at the time of the Veteran's December 1977 separation examination, no abnormalities were noted by the examiner for either knee.  Further, the Veteran completed a Report of Medical History at the time of the December 1977 separation examination and he himself indicated no history of knee symptoms.  Thus, the service treatment records include a single report of left knee symptoms with no follow up care after the initial date of treatment and no indication of symptoms at the time the Veteran separated from service.

The Veteran was afforded a VA examination of both knees in July 2013.  The examiner confirmed the diagnosis as bilateral degenerative joint disease.  The examiner concluded that the Veteran's bilateral knee disability was less likely than not incurred in or caused by an in-service injury, event or illness.  The rationale for the examiner's opinion was that there was one September 1977 in-service note of left knee pain and no indication of injury, and no immediate post service records of a knee problem.

The Veteran was again examined in August 2018.  He reported to this examiner that he had pain in both knees from physical activity in service and that the pain persisted while he was in service and after leaving the service.  This examiner opined that the Veteran's "bilateral knee strain condition" was at least as likely as not incurred in or caused by the bilateral foot pain during service.  The examiner noted the December 1977 records showing foot pain.  The examiner concluded, "According to Medscape literature, plantar fasciitis is a foot condition that can lead to poor posture and irregular walking patterns which can cause pain in the knees."  However, a VA examination of the Veteran's service-connected bilateral plantar fasciitis on the same day in August 2018 shows no indication of altered gait.  The examiner confirmed the presence of pain in both feet, including with prolonged standing and characterized that as "interference with standing," but there was no report of incoordination or disturbance of locomotion; no use of assistive devices; and otherwise, no indication of an altered gait.  The examiner also confirmed that there was no abnormal weight bearing or marked pronation of the feet
 examiner concluded, "According to Medscape literature, plantar fasciitis is a foot condition that can lead to poor posture and irregular walking patterns which can cause pain in the knees."  However, a VA examination of the Veteran's service-connected bilateral plantar fasciitis on the same day in August 2018 shows no indication of altered gait.  The examiner confirmed the presence of pain in both feet, including with prolonged standing and characterized that as "interference with standing," but there was no report of incoordination or disturbance of locomotion; no use of assistive devices; and otherwise, no indication of an altered gait.  The examiner also confirmed that there was no abnormal weight bearing or marked pronation of the feet.  Thus, the foot examination does not support the findings in the knee opinion.  While medical literature may show that poor posture and irregular walking patterns can cause pain in the knees, there is no indication that the Veteran has poor posture and irregular walking patterns.

At the May 2019 Board hearing, the Veteran testified that his knee problems started in the military and that he experienced symptoms the whole time he was in Germany.  This is inconsistent with the report he gave to his healthcare provider in January 2012.  He reported then that bilateral knee symptoms started in 2002.  Also at the hearing, the Veteran reported having symptoms while doing his job in Germany; reported having gone to sick bay; reported being placed on light duty; reported being prescribed medication; and reported having worn braces on his knees one time during service.  The Veteran's STRs, however, show the treatment in September 1977 for left knee symptoms.  This record shows the Veteran was reporting left knee pain and the notes indicates, "Please instruct in quad strengthening bilateral."  There was no indication of prescription of medication, or a brace being recommended or provided.  There is no other indication of left knee pain in service.  Thus, the Veteran's hearing testimony is inconsistent with what the STRs show and inconsistent with the history of symptoms reported at the time of the Veteran's initial VA treatment in January 2012.

Following the hearing, the Board remanded the Veteran's knee claims for an examination and opinion as to both knees.  The Veteran was then afforded another VA examination in February 2020.  With regard to the left knee, the examiner noted the Veteran had a one-time complaint of a left knee injury in service in 1977, but goes on to suggest there was a single complaint in 1979 post service.  The Board reviewed the listing in the report of the evidence the examiner relied upon in making this statement.  There is a typo in this listed evidence as the examiner suggested it was in September 1979 that the Veteran reported a left knee injury causing a pop.  As stated above, the two pages of left knee treatment in service were both dated in September 1977, one of which refences a pop.  Thus, the VA examiner erroneously referenced one of those two pages of records as being post service.  This is relevant because the examiner goes on to issue the following statement, "The complaint in 1979 states that there was an injury that caused the strain which can lead to arthritis in the future."  As the examiner was actually referring to an in-service report of the left knee injury, it appears he was saying that the type of injury experienced by the Veteran in service can lead to arthritis.  Given the Veteran's arthritis diagnosis in his left knee, and his in-service treatment of the left knee injury referenced, this error required clarification and the Board remanded the matter again in November 2022.  

The Veteran was again examined in April 2023.  The diagnosis of left knee osteoarthritis was again confirmed.  No additional diagnoses were indicated.  In a separate report, the examiner confirmed review of the conflicting evidence and provided an opinion.  The examiner noted that, "while the Veteran reports that his bilateral knee pain has existed since service and he is assumed to be credible, the records document an in-service injury of left knee tendonitis in September 1977."  The examiner went on to confirm that "[t]endonitis in the knee does not result in, or predispose to, the development of knee arthritis.  Tendonitis is inflammation of a tendon outside of the joint space and does not confer to inflammation of the joint itself."  The examiner referred to medical literature and confirmed that the "normal progression of chronic tendonitis does not include arthritis."

Because there is no evidence of an in-service notation of left knee arthritis with symptoms continuing ever since, and no indication of a diagnosis of left knee arthritis within one year of the Veteran's separation from service, there is no basis upon which to grant the Veteran's appeal on a presumptive basis.  Further, because the evidence does not show the Veteran's current left knee disability
 to confirm that "[t]endonitis in the knee does not result in, or predispose to, the development of knee arthritis.  Tendonitis is inflammation of a tendon outside of the joint space and does not confer to inflammation of the joint itself."  The examiner referred to medical literature and confirmed that the "normal progression of chronic tendonitis does not include arthritis."

Because there is no evidence of an in-service notation of left knee arthritis with symptoms continuing ever since, and no indication of a diagnosis of left knee arthritis within one year of the Veteran's separation from service, there is no basis upon which to grant the Veteran's appeal on a presumptive basis.  Further, because the evidence does not show the Veteran's current left knee disability is at least as likely as not related to any aspect of the Veteran's active service, there is no basis for awarding service connection on a direct basis.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence in this case does not persuasively support the Veteran's claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F. 4th. 776 (Fed. Cir. Dec. 17, 2021).  The appeal is denied.

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Adamson, 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.