Citation Nr: 0812236 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 03-33 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to separate 10 percent ratings for tinnitus in each ear. 2. Entitlement to service connection for a bilateral hip disability as secondary to the veteran's service-connected bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from March 1965 to June 1971 and from April 1992 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 and January 2006 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In November 2003 the veteran requested a hearing before a Decision Review Officer at the RO; however, he informed the RO in September 2005 that he no longer desired such a hearing. In July 2007, his representative confirmed that he no longer desired an RO hearing. FINDINGS OF FACT 1. The veteran experiences tinnitus. 2. Bilateral hip disability is etiologically related to the veteran's service-connected bilateral knee disability. CONCLUSIONS OF LAW 1. There is no schedular basis for the assignment of more than a single, 10 percent rating for tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2007). 2. Bilateral hip disability is proximately due to or the result of the veteran's service-connected bilateral knee disability. 38 C.F.R. § 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the record reflects that the veteran has been provided all required notice. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the veteran's claim for service connection for a bilateral hip disability. Therefore, no further development of the record is required under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) or 38 C.F.R. § 3.159 (2007). With respect to the tinnitus claim, as explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with 38 U.S.C.A. § 5103(a) or 38 C.F.R. § 3.159. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Tinnitus The veteran contends that in accordance with a decision of the U. S. Court of Appeals for Veterans Claims (Veterans Court), he should be granted a 10 percent rating for each ear because he experiences tinnitus in both ears. The Board acknowledges that in Smith v. Nicholson, 19 Vet. App. 63, 78, (2005), the Veterans Court held that the pre- 1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. However, the criteria in effect in December 2005 when he filed his claim for a separate 10 percent rating for tinnitus in each ear in December 2005 specifically provided that a maximum rating of 10 percent is warranted for tinnitus, whether the sound is perceived in one ear, both ears or the head. The Board also notes that VA appealed the decision of the Veterans Court to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Veterans Court erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Thus, it is clear that the veteran's claim is without legal merit. Bilateral Hip Disability Legal Criteria Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran contends that service connection is warranted for his bilateral hip disability as secondary to his service- connected bilateral knee disability. Service medical records are negative for evidence of this claimed disability. The veteran himself reported to his May 2003 VA examiner that his bilateral hip pain began in 1996, approximately four years after his discharge from active duty in September 1992. The post-service medical evidence does confirm that the veteran currently has bilateral hip disability. With respect to the etiology of the veteran's bilateral hip disability, a VA physician who examined the veteran in December 2003 opined that the deterioration of the veteran's hips, "can be related to the ongoing degenerative joint disease of the knees, which brought [the veteran] to total knee replacements." The veteran's private treating physician, Dr. M. has opined in written statements associated with the record that the veteran's bilateral hip disability is related to his bilateral knee disability. Specifically, in a letter received by VA in May 2003, he stated that the veteran's bilateral hip pain is secondary to the osteoarthritis of his knees. In a letter received by VA in November 2003, he opined that the veteran's right hip problem is secondary to the increasing osteoarthritis, particularly in his left knee, which is causing increasing stress in the right hip. Another private physician, Dr. P., opined in a letter received by VA in June 2006 that the veteran's surgery for a hip fracture was "known to be service related and service connected." The record also contains medical evidence against the claim. A May 2003 VA examiner, a nurse practitioner, diagnosed mild degenerative joint disease of the hips and opined that it is most likely unrelated to the veteran's service-connected knee condition "simply because it is a bilateral condition." The Board finds this reasoning less than persuasive. A March 2006 VA examiner, also a nurse practitioner, stated that she was unaware of any literature that would link the veteran's knee replacements with osteoarthritis of his hips, and that she was, "unable to state that his right knee fracture is related to his right hip replacement." She also wrote that his bilateral hip disability, "could be related to hereditary factors or his morbid obesity." First, the veteran sustained a right hip fracture, and has not, at least according to the record, undergone a right hip replacement. In addition, the examiner's remark about hereditary factors or morbid obesity was speculative, phrased as it was with the words "could be." In any event, the Board has found the favorable opinions of the private and VA physicians discussed above to be more probative than those of the nurse practitioners. Accordingly, the veteran is entitled to service connection for a bilateral hip disability as secondary to his service- connected bilateral knee disability. ORDER Entitlement to separate 10 percent ratings for tinnitus in each ear is denied. Entitlement to service connection for bilateral hip disability as secondary to service-connected bilateral knee disability is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs