Citation Nr: 0812682 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 03-25 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for degenerative joint disease of the hips. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from April 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In August 2003, the veteran requested a personal hearing before a Veterans Law Judge. However, he withdrew this request by indicating in both September 2005 and March 2007 that he did not want a Board hearing. The case was previously before the Board in May 2007, when it was remanded for examination of the veteran and a medical opinion. The requested development has been completed. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. Degenerative joint disease of the hips was not manifest in service and is unrelated to service. 2. Degenerative joint disease of the hips was not caused or aggravated by service-connected degenerative joint disease of the thoracolumbar spine. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease of the hips, including as secondary to degenerative joint disease of the thoracolumbar spine, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist VA is required to notify the veteran and his or her representative, if any, of (1) the information and evidence that is necessary to substantiate the claim; (2) what evidence the veteran is responsible for providing; (3) what evidence VA will attempt to obtain; and (4) the need to submit any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2007); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied through a September 2004 letter to the veteran that addressed all four notice elements. This was after the initial rating decision of April 2003. The letter informed the veteran of the evidence required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the AOJ. The veteran was notified of effective dates for ratings and degrees of disability in March 2006. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Any deficiencies in VA's duties to notify the veteran concerning effective date or degree of disability for the service connection claim are harmless, as service connection has been denied thus rendering moot any issues with respect to implementing an award. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran did not receive necessary notice prior to the initial adjudication. However, the lack of such pre-decision notice is not prejudicial. Notice was provided prior readjudication of the claim in subsequent supplemental statements of the case. VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In this case, VA obtained service medical records, VA medical records, private medical records, Social Security Administration (SSA) records, and statements from the veteran. VA examinations were conducted in November 2002 and August 2007. VA has satisfied its assistance duties. Service connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Arthritis may be presumed to have been incurred in service if it is manifest to a degree of 10 percent within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2007). Additionally, 38 C.F.R. § 3.310(b), the regulation which governs claims for secondary service connection, was added on Sept. 7, 2006. See 71 Fed. Reg. 52,744 (Sept. 7, 2006). The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. Service connection is in effect for degenerative joint disease of the thoracolumbar spine. Service medical records make no mention of any hip problems and the veteran's hips were normal on service discharge examination in April 1964. Degenerative joint disease of the hips was diagnosed on VA examination in November 2002. At the time, the examiner indicated that it was unclear what the relationship was between the veteran's back pain and hip pain symptoms. In September 2003 , L.J. Tarno, D.O. indicated that the veteran had osteoarthritis of his hips but stated that he was unable to address the question of its etiology in terms of onset and relationship to military service. In December 2004, a VA physician indicated that the veteran had bilateral sciatica and bilateral hip arthropathy. A VA examination was conducted in August 2007. After examining the veteran and reviewing medical records except for magnetic resonance imaging (MRI), the doctor indicated that it was at least as likely as not (a probability of at least 50 percent) that the veteran's pain and restricted movement and weakness in his hips were caused by referred pain from his lower back disability. It was his understanding at the time that there was no significant bony pathology involving the hips. However, the MRIs of the hips later that month revealed degenerative changes in the hips consistent with osteoarthritis, and the examiner indicated that he had based his earlier conclusion on normal hip studies. He amended his opinion after considering the MRIs. He diagnosed degenerative arthritis of both hips. The examiner indicated that it is considered an age-related condition, but that risk factors including trauma accelerate deterioration. Taking all factors into consideration, the examiner stated that could not resolve the issue of whether the veteran's bilateral hip condition was caused by or the result of the veteran's service-connected low back injuries without resorting to mere speculation. As noted above, the service medical records are negative for any complaints or findings pertaining to the hips. Degenerative joint disease of the hips was first shown in 2002, more than 35 years following the veteran's separation from service. There is no competent medical evidence of record indicating that degenerative joint disease of the hips was manifest in service or to a degree of 10 percent within one year of service discharge, or that it is related to any in-service disease or injury or to the veteran's service- connected back disorder. As noted above, Dr. Tarno was unable to address the question of its etiology in terms of onset and relationship to military service. The VA examiner in November 2002 indicated that it was unclear what the relationship was between the veteran's back pain and hip pain symptoms. Subsequently, the VA examiner in August 2007 indicated that he could not relate the veteran's bilateral hip condition to his service-connected low back injuries without resorting to speculation. Even considering the rule of reasonable doubt, service connection cannot be granted based on pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). For these reasons, the Board finds that there is no nexus between the veteran's service or his service-connected back disorder and his degenerative joint disease of the hips. The veteran's claim fails because the only foundation for granting his claim would lie in mere speculation. While the veteran has claimed both direct and secondary service connection, and has argued that he was paralyzed in service, since he is a layperson, his opinion on matters of medical causation is of no probative value. Medical evidence is required. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for degenerative joint disease of the hips is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs