Citation Nr: 0813654 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-19 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to bilateral pes planus. 2. Entitlement to service connection for a left hip disorder, to include as secondary to bilateral pes planus. 3. Entitlement to service connection for a right ankle disorder, to include as secondary to bilateral pes planus. 4. Entitlement to service connection for a left ankle disorder, to include as secondary to bilateral pes planus. REPRESENTATION Appellant represented by: District of Columbia Office of Veterans Affairs ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from July 1962 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In his June 2005 Substantive Appeal, the veteran requested a Board hearing. Later in the same month, however, he clarified that he wished to appear before a local hearing officer. Such a hearing was subsequently conducted in August 2005. These matters were before the Board in March 2007 and were then remanded for further development. The issues of entitlement to service connection for a right ankle disorder, to include as secondary to bilateral pes planus, and entitlement to service connection for a left ankle disorder, to include as secondary to bilateral pes planus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record shows that a right or left hip disorder was not present during service or for many years thereafter. 2. There is no competent medical showing that the veteran's current right and left hip disorders were caused or aggravated by a service-connected condition. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right hip disorder, including as secondary to a service-connected condition, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.110 (2007). 2. The criteria for establishing entitlement to service connection for a left hip disorder, including as secondary to a service-connected condition, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.110 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, April 2003 and October 2007 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in October 2007, and his claim was readjudicated by the RO in January 2008. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, private post-service medical treatment records, VA medical treatment records, VA examinations, a letter from the veteran's private physician, the veteran's testimony at his August 2005 RO hearing, and written statements from the veteran and his representative. The Board notes that attempts were made to recover VA medical treatment records from the 1970s, and that, in a July 2003 letter, the VA medical center informed the veteran that such records were deemed lost. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Service Connection The veteran argues that he is entitled to service connection for left and right hip disorders. Specifically, the veteran argues that such disorders are secondary to his service- connected bilateral pes planus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be established for disability which is proximately due to or the result of a service- connected disability, or for 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 progression of the nonservice-connected disease. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310. In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. § 3.307, 3.309(a). In the instant case, service medical records do not reflect complaints of or treatment for problems related to either hip. On October 1970 separation examination, the veteran was noted to have had a normal clinical evaluation of the lower extremities, spine, and other musculoskeletal system, and no hip condition was noted. On VA examination in January 1980, the veteran complained of knee and feet pain. The veteran was grossly negative for evidence of disability, discomfort, dysfunction, abnormality of gait or limp. Examination of the lower extremities standing revealed symmetrical development of the thighs and legs. The first indication of complaints of or treatment for any hip condition is a July 1990 private medical treatment note, which indicates that the veteran was seen for evaluation of complaints of bilateral hip discomfort. The veteran then reported that he had had bilateral hip pain of insidious onset over the past few years, but especially the past several months. After x-ray examination, the veteran was diagnosed as having degenerative arthritis, hips, bilateral, symptomatic left greater than right, radiographic right grater than left. The record reflects that the veteran underwent a right total hip replacement in October 2002, with a diagnosis of severe degenerative arthritis, right hip. On VA examination in May 2003, it was noted that the veteran was in need of a hip replacement on his left side, and that the veteran attributed his degenerative hip disease to his flat feet. The veteran submitted a letter from his private physician, Dr. A., dated in February 2005. In the letter Dr. A. indicated that the veteran had been under his office's care for 23 years for treatment of degenerative arthritis of multiple joints, including for bilateral hip pain, for which he was seen in 1990. Dr. A. also stated that the veteran's arthritic disease had progressed and that he had undergone a right total hip replacement in October 2002 and left total hip replacement in October 2003. Dr. A. also stated that if, indeed, the veteran's arthritic problems had been accepted as a service-connected problem, then that could include his knees and hips as well. On VA examination in February 2005, the veteran stated that he believed that his flat feet had eventually led to his hip problem, and that his hip pain had gradually worsened. The veteran was afforded a VA examination in November 2007. After reviewing the record and examining the veteran, the VA examiner opined that the veteran's bilateral degenerative arthritis resulting in bilateral total hip replacements was less likely than not the result of or etiologically related to either the veteran's service or his service-connected bilateral foot condition or pes planus, and that it was less likely than not that there was a permanent aggravation of his bilateral hip condition by his service or service-connected bilateral pes planus condition. After a review of the record, the Board finds a preponderance of the evidence to be against the veteran's claims of service connection for right and left hip disorders. First, the evidence does not reflect that any hip disorder was directly incurred or aggravated in service. Service medical records do not reflect complaints of or treatment for problems related to either hip, and, on October 1970 separation examination, the veteran was noted to have had a normal clinical evaluation of the lower extremities, spine, and other musculoskeletal system, and no hip condition was noted. No hip problems were noted on examination or reported by the veteran on January 1980 VA examination. The first indication of any hip problems in the medical record is the July 1990 private medical treatment note, which indicates that the veteran reported that he had had bilateral hip pain of insidious onset over the past few years. Furthermore, the November 2007 VA examiner stated that it was not likely that the veteran's hip disorders were incurred or aggravated by service. Second, the medical evidence of record does not reflect that any hip disorder is related to the veteran's service- connected bilateral pes planus. The only etiology opinion of record regarding the veteran's hip conditions and his service connected bilateral pes planus is that of the November 2007 VA examiner, who opined that the veteran's bilateral degenerative arthritis resulting in bilateral total hip replacements was less likely than not the result of or etiologically related to the veteran's service-connected bilateral foot condition or pes planus, and that it was less likely than not that there was a permanent aggravation of his bilateral hip condition by his service-connected bilateral pes planus condition. Although it has been noted on examination that the veteran has reported that his hip conditions are related to his pes planus, there is no medical opinion or other competent medical evidence of record etiologically relating any hip disorder to the veteran's service-connected bilateral pes planus. In this regard, the Board notes that whether there is an etiological relationship between pes planus and any hip disorder is a medical determination, and the veteran is not competent to provide opinions that require medical knowledge. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board notes Dr. A.'s February 2005 letter, which indicates that if the veteran's arthritic problems had been accepted as a service-connected problem, then that could include his knees and hips as well. However, the opinion expressed by Dr. A. does not indicate that it is likely that the veteran incurred a hip problem in service, or that any hip condition was due to his bilateral pes planus. The Board acknowledges the veteran's current arthritis condition of the hips, as indicated by Dr. A. However, the veteran is not service-connected for arthritic problems. Moreover, the February 2005 letter from Dr. A. does not indicate a review of the claims folder, and, to the extent that the February 2005 letter could be taken to be an etiology opinion regarding the veteran's hip conditions, the Board does not find it to be as probative as the opinion of the December 2007 VA examiner, who did review the claims folder. The Board also notes that, although attempts were made to recover VA medical records from the 1970s, in a July 2003 letter, the VA medical center informed the veteran that such records were deemed lost. However, the Board also notes that service medical records were completely negative for any hip problems or hip injury, and there is no indication in the record that the veteran incurred any in-service hip injury or hip problem. Also, no hip problems were noted on January 1980 VA examination, or reported by the veteran at that time, and the first indication of any hip problems in the medical record is the July 1990 private medical treatment note, which indicates that the veteran reported that he had had bilateral hip pain of insidious onset over the past few years. This evidence is highly probative that the veteran did not receive medical treatment for any hip problem in the years following service, but, rather, began having hip problems sometime between January 1980 and July 1990. Furthermore, the veteran was given a VA examination in November 2007 to determine the likelihood of a link between his hip problems and his period of service, and the VA examiner stated that it was not likely that the veteran's hip disorders were incurred or aggravated by service. Moreover, the Board notes that the veteran has not asserted in this case that he directly incurred a hip condition in service, but, rather, that his hip conditions are due to his service-connected bilateral pes planus. Accordingly, service connection is not warranted for either a right hip disorder or a left hip disorder, including as secondary to bilateral pes planus. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. ORDER 1. Entitlement to service connection for a right hip disorder, to include as secondary to bilateral pes planus, is denied. 2. Entitlement to service connection for a left hip disorder, to include as secondary to bilateral pes planus, is denied. REMAND The veteran's service connection claims for right and left ankle disorders, to include as secondary to pes planus, must be remanded for the following reasons. The veteran was given a VA compensation and pension examination in November 2007 to determine the nature and etiology of any ankle conditions. However, after examination of the veteran, the November 2007 VA examiner opined that there was no bilateral ankle condition, and x-rays did not indicate any significant arthritic condition. The examiner noted that the veteran did have marked pronation of his feet and pain localized to mid foot region, which was likely secondary to foot strain in this area, and that there was noted to be some calcification in the soft tissues beneath the os calcis bones of each foot, which was likely secondary to some prior plantar fasciitis which could be the cause of pain beneath his heels. The examiner also noted that pain from these conditions might cause pain radiation in the region of the veteran's ankles, and that the ankle connected to the foot bones. Also, on physical examination of the ankles, range of motion was right and left dorsiflexion to 10 degrees, and plantar flexion of 30 degrees right and 30 to 35 degrees left. In this regard, the Board notes that, for VA compensation purposes, normal ankle dorsiflexion is to 20 degrees, and normal ankle plantar flexion is to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2007). Also, a May 2003 VA examination indicates restricted bilateral ankle motion to less than 10 degrees, as well as a diagnosis of bilateral ankle equinus deformity. Furthermore, the record includes treatment for injuries of both ankles during service. In light of the inconsistent evidence of record with respect to the existence of a left or right ankle disorder, another VA examination is necessary to clarify the nature and etiology of any ankle disorder, including any restriction of left or right ankle motion. In addition to reviewing the claims file, the VA examiner should specifically address both the May 2003 VA examination report indicating restricted bilateral ankle motion to less than 10 degrees and a diagnosis of bilateral ankle equinus deformity, and the findings of the November 2007 VA examiner, including range of motion findings, and the opinion that pain from the veteran's feet conditions might cause pain radiation in the region of his ankles. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the veteran for an examination by a VA examiner with the appropriate expertise in order to determine the nature and etiology of any current right and left ankle disorders. The claims folder and a copy of this Remand must be provided to the examiner for review. The examiner should note in the examination report that he or she has reviewed the claims folder. Based on examination findings and a review of the claims folder, the examiner should specifically express an opinion as to (1) whether the veteran has a current right ankle disorder or left ankle disorder; (2) whether the veteran has any current restriction of right or left ankle motion; (3) whether it is at least as likely as not (whether there is a 50 percent chance or more) that any such right or left ankle disorder was incurred or permanently aggravated by the veteran's bilateral pes planus condition, was incurred or permanently aggravated during the veteran's period of service, or is otherwise etiologically related to the veteran's period of service in any way; and (4) whether any current restriction of right or left ankle motion is the result of the veteran's bilateral pes planus condition, or is the result of service in any other way. The examiner should specifically address both the May 2003 VA examination report indicating restricted bilateral ankle motion to less than 10 degrees and a diagnosis of bilateral ankle equinus deformity, and the findings of the November 2007 VA examiner, including range of motion findings, and the opinion that pain from the veteran's feet conditions might cause pain radiation in the region of his ankles. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims folder. 2. After undertaking any additional development deemed appropriate, the RO should review the entire evidentiary record and readjudicate the issues on appeal. If any remaining benefit sought is not granted to the veteran's satisfaction, the RO should issue an appropriate supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs