Citation Nr: 0434406 Decision Date: 12/30/04 Archive Date: 01/05/05 DOCKET NO. 03-03 461 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for claimed left hip disability. 2. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right knee disability. 3. Entitlement to an initial evaluation in excess of 10 percent for the service connection left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran had active service from August 1977 to August 1980 and from January 1997 to October 1997 and other service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the RO. In April 2003, the veteran testified at a personal hearing at the RO. The issues of increased ratings for the service-connected disability of the right and left knee are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran and his representative if further action is required on this part. FINDING OF FACT The veteran's currently demonstrated left total hip arthroplasty residuals are shown as likely as not to be due to degenerative process that began during his period of active duty for training in 1996. CONCLUSION OF LAW By extending the benefit of the doubt to the veteran, his disability manifested by left total hip arthroplasty residuals are due to disease that was incurred during a period of active duty for training. 38 U.S.C.A. §§ 1110, 1131, 5107,7104 (West 2002); 38 C.F.R. §§ 3.102; 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 In November 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). VCAA provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for benefits unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Secretary may defer providing assistance pending the submission by the claimant of essential information missing from the application. Id. VCAA also contains provisions regarding the scope of notice to which those seeking VA benefits are entitled. 38 U.S.C.A. § 5103 (West 2002). Having reviewed the complete record, the Board believes that there is ample medical and other evidence of record upon which to decide the veteran's claim. The Board is unaware of, and the veteran has not identified, any additional evidence which is necessary to make an informed decision on this issue. Thus, the Board believes that all relevant evidence which is available has been obtained. The veteran and his representative, moreover, have been accorded ample opportunity to present evidence and argument on his behalf, including presenting testimony at a personal hearing at the RO. Further, by a November 2003 letter, the December 2002 Statement of the Case, and the July 2003 and May 2004 Supplemental Statements of the Case, he and his representative have been notified of the evidence needed to establish the benefit sought, and he has been advised via these documents regarding his and VA's respective responsibilities as to obtaining that evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Consequently, the Board concludes that VA's statutory duty to assist the veteran has been satisfied. The Board notes that seeking further development of the case would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided). VA has satisfied, as far as practicably possible, the notice, assistance, and other requirements of VCAA, and any further action would only serve to burden VA with no additional benefit flowing to the veteran. Factual Background On January 1977 service report of medical history, the veteran noted no adverse symptomatology. His only physical abnormality was poor eyesight. On the January 1977 medical examination report, the examiner found no abnormalities and assigned a "PULHES" physical profile amounting to a "picket fence" (i.e., all 1's), indicating a high level of medical fitness. (See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991) for an explanation of the military medical profile system). No abnormalities were noted on October 1977 medical examination report. The veteran's "PULHES" physical profile again amounted to a "picket fence." Id. The August 1996 records reflect that, when seen at service medical facility in South Carolina, the veteran complained of left upper thigh pain secondary to physical training. The pain increased on quadriceps stretches. He was noted to a mild antalgic gait. The provisional diagnosis was that of groin strain. The assessment was that of quadriceps strain. A profile and medication were prescribed, and it was noted that the "soldier return[ed] to N.C. on Friday." In a November 1999 medical statement, it was noted that the veteran presented with a three-year history of left groin pain that began when he was in the Army doing training. The impression was that of severe left hip osteoarthritis. The VA treatment records show that the veteran was seen in November 1999 for complaints of increasing left leg pain and walking difficulty following an injury in 1996 during physical training. Reportedly, this had caused a limp. During an orthopedic evaluation in November 2000, it was noted that the veteran had osteoarthritis of the left hip that most likely due to osteonecrosis that started in 1996 while on active duty in the National Guard. It was noted that he had had left hip pain since a PT session. The X-ray studies were noted to show severe osteoarthritis of the left hip join with femoral head collapse, sclerosis, cyst formation and joint space loss. The impression was that of osteoarthritis of the left hip most likely secondary to osteonecrosis that started in 1996 during active duty. On April 2002 VA examination of the joints, the veteran complained of having left hip pain and left knee problems. The right knee was also somewhat bothersome. He asserted that the left hip began to hurt in 1996 while performing stretches during active duty for training. The veteran did not use braces, corrective shoes or a cane. There was no inflammatory arthritis. The veteran denied abstenteeism from work due to his knees or hip. The VA examiner noted some pain on left knee movement. There was no fatigue, weakness or lack of endurance. There was no edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement or guarding of movement. The veteran walked with a limp. There was no ankylosis or inflammatory arthritis. The examiner diagnosed left hip avascular necrosis, right knee degenerative joint disease, and left knee degenerative joint disease. By May 2002 rating decision, the RO granted service connection for right and left knee disability and assigned a 10 percent evaluation to each. Service connection for a left hip disability was denied. At his April 2003 RO hearing, the veteran testified that his left hip popped during physical training while on active duty for training, that he sought medical treatment thereafter and that a left hip injury was diagnosed. On June 2003 VA examination of the joints, the veteran reported daily knee pain and pain that increased on weight bearing. The veteran was using a cane due to his left hip necrosis rather than the knees. Because of problems with the left hip, knees and back, the veteran could perform only sedentary work as a temporary worker on weekends. He could not run, lift appreciably or walk up stairs easily. The veteran walked with a left-sided limp and used a cane. The VA examiner diagnosed avascular necrosis of the left hip and opined that neither muscle injury nor left quadriceps strain described in National Guard duty was "responsible for the degenerative changes seen in the avascular necrosis of the left hip." The veteran underwent a left total hip arthroplasty in December 2003 at a VA medical facility. Law and Regulations Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a claim is filed for service connection, whether on a direct basis or as secondary to a service-connected disability, there must be an initial finding of a current chronic disability. Although the appellant may testify as to symptoms he perceives to be manifestations of disability, the question of whether a chronic disability is currently present is one that requires skill in diagnosis, and questions involving diagnostic skills must be made by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A claim of service connection for a disability must be accompanied by medical evidence establishing that the claimant currently has a claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Analysis The veteran is shown to suffer from the residuals of a left total hip arthroplasty due to avascular necrosis and osteoarthritis. A present disability is a prerequisite for the granting of service connection. 38 C.F.R. § 3.303; Gilpin, supra; Degmetich, supra. In addition to a present disability, however, the evidence must reflect a nexus between that disability and some event or incident in service. 38 C.F.R. § 3.303. The changes due to avascular necrosis and osteoarthritis of the left hip were not shown in active service or for many years thereafter. However, the medical evidence shows that the veteran did experience left leg manifestations and receive medical treatment after undergoing physical training during an apparent period of active duty training in South Carolina in August 1996. Then, in 1999, the veteran received initial medical care for significant left hip degenerative changes and pain that the veteran reported had been present since 1996. The evidence of record, in the Board's opinion, is in relative equipoise in showing that the left hip joint degeneration as likely as not had its clinical onset during his period of active duty for training in 1996. As indicated, he underwent a left total hip arthroplasty because of this degenerative process in 2003. By extending the benefit of the doubt to the veteran, service connection for the currently demonstrated residuals of the left total hip arthroplasty is warranted. ORDER Service connection for the residuals of the left total hip arthroplasty is granted. REMAND The Board cannot evaluate the severity of the veteran's right and left knee disabilities based on the June 2003 VA orthopedic examination report. The examiner described some of the veteran's knee symptomatology in conjunction with orthopedic symptoms pertaining to other parts of the body such as the low back and left hip. The Board, thereofore, cannot determine which symptoms are attributable to the knees exclusively. Due to the foregoing, another VA orthopedic examination of the veteran's knees must be scheduled. All symptoms and manifestations must be reported in detail. With respect to range of motion, the examiner should comment upon whether functional loss due to pain and weakness causes additional disability beyond that reflected on range of motion measurements. The examiner should also discuss findings with respect to weakened movement, excess fatigability and incoordination. Hence, the case is REMANDED for the following development: 1. The RO must review the claims file to ensure compliance with the mandates of the VCAA. In particular, the RO should ensure that the notification requirements and development procedures of VCAA are fully satisfied and send the veteran a letter detailing the provisions of VCAA and the associated implementing regulations. See 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). See also Veterans Benefits Act of 2003, Pub. L. No. 108- 183, 117 Stat. 2651 (Dec. 16, 2003). 2. An orthopedic examination should be scheduled to determine the nature and severity of the service-connected knee disability. All symptoms and manifestations must be reported in detail. With respect to range of motion, the examiner should comment upon whether functional loss due to pain and weakness causes additional disability beyond that reflected on range of motion measurements. The examiner should also discuss findings with respect to weakened movement, excess fatigability and incoordination. The claims folder should be made available to the examiner for review before the examination, and the examiner should describe the records upon he or she relied. A rationale for all conclusions must be provided. 3. The RO should inform the veteran that failure to report for the scheduled examination might have adverse consequences in the adjudication of his claim. 38 C.F.R. § 3.655 (2004). 4. The RO should review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinion are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO should readjudicate the claim. If any benefit sought on appeal remains denied, the veteran should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response thereto. Thereafter, the case should be returned to the Board for the purpose of appellate disposition, if indicated. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________- STPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2