Citation Nr: 0811557 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-23 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for status-post right hip replacement, also claimed as arthritis. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant/Veteran INTRODUCTION The veteran served on active duty from June 1978 to June 1981. He also had Army Reserve duty through May 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the benefit sought on appeal. The veteran appeared before the Board and gave testimony in August 2007. A transcript of that hearing is of record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran does not have arthritis of the right hip that began during service, as a consequence of service or within one year of discharge from service. 3. The veteran does not have a disability associated with his right hip replacement that began during service or that developed as a consequence of service. CONCLUSION OF LAW Arthritis of the right hip, also claimed as status-post right hip replacement, was not incurred in or aggravated by service nor is such a disability presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the VCAA must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in January 2003, September 2003, February 2005 and August 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his claim of entitlement to service connection for arthritis of the right hip, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of all five elements of a service-connection claim, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was not provided. The Board specifically finds, however, that the veteran is not prejudiced as his claim is for entitlement to service connection and he was given specific notice with respect to the elements of a basic service-connection claim and cannot be prejudiced by not receiving notice of downstream issues that are not reached by a denial of the underlying benefit. Accordingly, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini 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. Although some of the letters provided to the veteran were sent after the initial adjudication here on appeal, they are deemed pre-adjudicatory in light of the issuance of a Supplemental Statement of the Case in April 2007. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board in August 2007. Social Security Administration (SSA) records were obtained and are associated with the claims file as are service medical records and post-service treatment records. A VA examination has not been afforded this veteran as the evidence does not meet criteria necessary for such an examination to be required under 38 C.F.R. § 3.159(c)(4). Although the veteran is certainly competent to testify as to the presence of observable symptomatology such as hip pain, this testimony alone is insufficient to indicate that current disability may be associated with an alleged incident during service that is not corroborated by service records, particularly in light of the decades that past without any reference to an in-service injury and the lack of medical evidence suggesting that current hip disability is a result of an undocumented in-service injury. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Accordingly, the Board now turns to the merits of the veteran's claim. The veteran asserts that he developed arthritis in his right hip as a consequence of a fall in the shower during service in approximately 1978. He testified before the Board that he did not seek treatment during service, but that he was placed on light duty without being placed on a profile. The veteran stated that his hip problems began in 1985. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is to be established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. The veteran seeks service connection for arthritis, which is deemed to be a chronic disease under 38 C.F.R. § 3.309(a). As such, service connection may be granted under 38 C.F.R. § 3.307(a)(3) if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Separation from service is defined as the veteran's discharge date. See 38 C.F.R. § 3.307(a)(2). Therefore, because the veteran was discharged from active service in June 1981 and Reserve duty in May 1984, the evidence must show that arthritis of the right hip manifest to a degree of ten percent by May 1985 in order for service connection to be granted based upon a presumptive period. There is no statutory or regulatory provision to allow for an extension of a presumptive period. The veteran's service medical records do not show that he injured his right hip in 1978. The record does show that the veteran served on active duty for approximately three years after the alleged in-service injury and in the Reserves until May 1984 without complaint of right hip pain. Personnel records show that the veteran was relieved from active duty, not by reason of physical disability, in June 1981; he completed Reserve duty in May 1984 without a diagnosis of a right hip disability. Although the veteran testified by the Board that he began having hip problems in 1985, the record does not show treatment for hip pain or a diagnosis of arthritis until 2002. Treatment records dated in 2003 show that the veteran related having hip pain since 1979. The veteran's wife reported in September 2003 that she had lived with the veteran since 1988 and that he had had problems since then. There are no medical records available that show treatment of a hip disability within two decades of the veteran's service. The veteran had a total right hip replacement in 2003. The veteran sought VA compensation benefits in July 1981 for hypertension. In August 2002, he filed his second application for VA compensation benefits and related that he had arthritis that began in 1985 that he began treatment for in April 2002. In February 2003, the veteran sought SSA benefits which were granted in March 2006 when SSA found the veteran unable to work as a result of degenerative disc disease, status-post corneal transplant, and status-post right hip replacement secondary to arthritis. SSA records do not include a medical opinion linking the veteran's right hip disability to his period of service. They do, however, show that the veteran worked in manual labor, including as a construction laborer, since his discharge from service in 1985. Given the evidence as outlined above, the Board finds that there is no evidence of a right hip disability having its origin during the veteran's period of active service or anytime within one year of discharge from service. The first evidence of right hip disability is dated in 2002, approximately twenty-five years after the alleged in-service injury. The decades that elapsed between the time of service and the beginning of treatment do not show a continuity of symptomatology upon which to support a grant of service connection. The veteran is competent to testify as to symptoms such as pain, however, he is not competent to render a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). As such, his testimony is not competent evidence of the presence of arthritis since 1985. The Board notes that there are medical records dated since 2002 which include a history as provided by the veteran that his hip pain began in 1979. These records are not medical opinions, but merely recitations of history provided by the veteran. Including a history in a medical record does not transform that history into a medical opinion. See generally LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Consequently, after a complete review of the record evidence, the Board finds that the veteran does not have arthritis of the right hip that began during service, as a consequence of service or within one year of discharge from service. Additionally, he does not have a disability associated with his right hip replacement that began during service or developed as a consequence of service. Therefore, service connection must be and is denied. ORDER Service connection for arthritis of the right hip, also claimed as status-post right hip replacement, is denied. ____________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs