Citation Nr: 0810054 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-14 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from February 1968 to March 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2006, the veteran testified during a hearing at the RO before the undersigned. A transcript of that hearing is of record. In an April 2007 decision, the Board denied the veteran's claims for service connection for a bilateral musculoskeletal foot disorder, tinea pedis, chronic headaches, bilateral hearing loss, and gallbladder and pancreatic diseases, an increased initial rating in excess of 10 percent for post- traumatic stress disorder, and compensable evaluations for malaria and residuals of a skull fracture. At that time, the Board remanded the veteran's claims for service connection for bilateral knee and hip disorders to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. The issue of entitlement to service connection for a bilateral knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDING OF FACT The objective and probative medical evidence of record preponderates against a finding that the veteran has a diagnosed bilateral hip disorder related to his active military service. CONCLUSION OF LAW A bilateral hip disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103-5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Court acknowledged in Pelegrini that where the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. In a March 2006 letter, and in the August 2007 supplemental statement of the case (SSOC), the RO provided the veteran with notice consistent with the Court's holding in Dingess/Hartman. Further, as the appellant's claim for service connection for a bilateral hip disorder is being denied, as set forth below, there can be no possibility of prejudice to him. As set forth herein, no additional notice or development is indicated in the appellant's claim. In a June 2005 letter, issued prior to the August 2005 rating decision, the RO informed the appellant of its duty to assist him in substantiating his claim under the VCAA and the effect of this duty upon him claim. We therefore conclude that appropriate notice has been given in this case. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that he has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims files, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In fact, in an April 2006 signed statement, the veteran said he had no other information or evidence to provide VA to substantiate his claim. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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 to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background and Legal Analysis The veteran contends that he has a bilateral lateral hip disorder that is attributable to the numerous parachute jumps he performed in service. His service records show that he was awarded the Parachutist Badge among the decorations and ribbons he received. During his November 2006 Board hearing, he testified that he was on record as performing 35 jumps in service (see hearing transcript, page 13). Service connection may be granted for disability resulting from disease or injury that was incurred in, or aggravated by, active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also, Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Service connection medical records are not referable to complaints or diagnosis of, or treatment for, a hip disorder. When examined in October 1970, prior to his March 1971 separation from service, the veteran's spine and other musculoskeletal areas were reported as normal and, in a February 1971 signed statement, the veteran said there was no change in his medical condition since that examination. Post service, VA and non-VA medical records and examination reports, dated in 1976 and 1990, and from 1994 to 2007, the more recent of which, indicate that the veteran gave a history of a back injury in 1986 (noted in a January 1996 VA clinical record), and further reflect that he was treated for degenerative joint disease of the lumbar spine (noted in a 2000 private medical record) and degenerative disc disease in his lower back (noted in a February 2004 private medical record), but are not referable to complaints or diagnosis of, or treatment for, a bilateral hip disorder. A May 2004 VA orthopedic examination report indicates that the veteran complained of low back and neck pain. Complaints, findings, and diagnoses were not referable to a hip disorder. During his November 2006 Board hearing, the veteran said he performed 35 parachute jumps in service. He said that on one occasion he landed on top of a comrade's parachute, causing his own parachute to collapse, and he had to ride his friend all the way down. He said that caused a greater impact and he did not land properly (see hearing transcript, pages 14- 15). In May 2007, the veteran underwent VA examination. According to the examination report, the examiner reviewed the veteran's medical records. It was noted that the veteran complained of a bilateral hip disorder due to parachute jumps in service. The examiner noted that the veteran reported bilateral buttock pain but no true hip joint pain. The veteran said he had a quick, sharp pain that "shoots into the knees". He did not walk with an assistive device and his gait was normal with a slight limp. Results of x-rays of the veteran's hips taken at the time indicated that comparison with the abdominal image taken in December 2003 revealed no acute or significant interval change in appearance of the hips with specifically symmetric cartilage spaces, bilaterally. There was no evident fracture or dislocation. Upon clinical examination, the pertinent diagnosis was that, regarding both hips, "this is not true hip pain". The VA examiner said it was "more likely than not" that the veteran's pain was a referred pain from his back and there was no true hip joint pathology. The veteran has contended that service connection should be granted for a bilateral hip disorder. The record demonstrates that no hip disorder was found in service or on separation from service. Moreover, on VA examinations after the veteran's separation from service, there was no showing that the veteran had a bilateral hip disorder. In fact, in May 2007, a VA examiner opined that it was more likely than not that the veteran's pain was a referred pain from his back, and there was no true hip joint pathology. Furthermore, the veteran has submitted no evidence to show that he currently has a bilateral hip disorder. Although in his written and oral statements in support of his claim, the veteran reported having hip pain that he attributed to service, no medical opinion or other medical evidence showing that the veteran currently has a bilateral hip disorder has been presented. Rabideau v. Derwinski, 2 Vet. App. at 143. In addition, the veteran does not meet the burden of presenting evidence as to medical cause and effect, or a diagnosis, merely by presenting his own statements, because as a layperson he is not competent to offer medical opinions. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus his statements regarding causation are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). There is no evidence showing, and the veteran does not assert, that he has had sufficient medical training to provide competent medical evidence as to the etiology of his claimed bilateral hip disorder. The Board finds a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit competent medical evidence to provide a nexus between any in-service injury or disease and the conditions that caused and contributed to his currently claimed right leg disorder. The preponderance of the evidence is therefore against the appellant's claim of entitlement to service connection for a bilateral hip disorder. We have considered the doctrine of reasonable doubt. Under that doctrine, when there is an approximate balance between evidence for and against a claim, the evidence is in equipoise, there is said to be a reasonable doubt, and the benefit of such doubt is given to the claimant. 38 U.S.C.A. § 5107(b); see Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); 38 C.F.R. § 3.102. However, when the evidence for and against a claim is not in equipoise, then there is a preponderance of evidence either for or against the claim, there is no reasonable doubt, and the doctrine is inapplicable. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Based upon the evidence of record, service connection for a bilateral hip disorder is not warranted. ORDER Service connection for a bilateral hip disorder is denied. REMAND The veteran also seeks service connection for a bilateral knee disorder that he attributes his numerous parachute jumps in service. The May 2004 VA orthopedic examination report indicates that he gave a history of fracturing his right ankle in 1980, that was casted and, after its removal, he fractured his distal tibia and fibula and a recast was done for one month. Pursuant to the Board's April 2007 remand, in May 2007, the veteran underwent a VA examination, performed by a physician's assistant, who diagnosed bilateral patellofemoral syndrome "that is less likely than not secondary to [the veteran's] parachute jumps in the service, although this cannot be ruled out". The examiner stated that while service medical records did not reveal treatment for knee problems, "the action of landing with flexed knees could put increased stress on the patellofemoral joint of both knees...[but] the activities of daily living can produce this." However, the examiner did not address the relationship, if any, between the veteran's right knee pain and the healed fracture deformity of the right proximal fibula noted in the May 2007 VA radiology report of the x-ray of the veteran's knees. Thus, in the interest of due process and fairness, the Board is of the opinion, that the veteran should be examined by a VA physician to determine the etiology of any bilateral knee disorder found to be present. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all VA medical records regarding the veteran's treatment for the period from May 2005 to the present, and any additional private medical records identified by him. If any records are unavailable, a note to that effect should be placed in the claims file and the veteran and his representative so advised in writing. 2. The veteran should be scheduled for appropriate VA medical examination, performed by a physician, preferably an orthopedist, if available, to determine the etiology of any diagnosed bilateral knee disorder found to be present. The veteran's medical records, particularly his service medical records, should be reviewed by the examiner prior to examination. A complete history of the claimed disorder should be obtained from the veteran, including all post service intercurrent knee and leg injuries. All indicated tests and studies should be conducted and all clinical findings should be reported in detail. a. The examiner should be requested to provide an opinion concerning the etiology of any diagnosed bilateral knee disorder found to be present, to include whether it is at least as likely as not (i.e., at least a 50-50 degree of probability) that any such disorder noted was caused by military service, including multiple parachute jumps in service, or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). b. The examiner is further requested to provide an opinion as to whether it is at least as likely as not that the veteran's right knee pain is attributable to the healed fracture deformity of the right proximal fibula shown on May 2007 VA radiology report, or whether such an etiology or relationship is unlikely. c. A rationale should be provided for all opinions expressed. The veteran's claims files should be made available to the examiner in conjunction with the examination, and the examination report should indicate whether the examiner reviewed the veteran's medical records. NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. Thereafter, the RO should readjudicate the veteran's claim for service connection for a bilateral knee disorder. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a SSOC. The SSOC should contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal since the August 2007 SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs