Citation Nr: 0814072 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-33 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for hip disability. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Associate Counsel INTRODUCTION The veteran served in the Air National Guard from November 1989 to November 2005, which included periods of active duty training (ACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the veteran testified before the undersigned. A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for degenerative disc disease of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no evidence of a current hip disability due to disease or injury. CONCLUSION OF LAW Hip disability, due to pathology (disease or injury) was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION 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 and her representative 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 her 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 RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the veteran's claim was received after the enactment of the VCAA. A letter dated in February 2006 told the veteran that VA would make reasonable efforts to obtain evidence necessary to support her claim. She was informed that she was required to provide sufficient information to allow VA to obtain records. She was asked to identify any VA or private medical treatment. The various types of evidence that might support her claim were listed. The letter outlined VA's responsibilities with respect to obtaining evidence on the veteran's behalf. The veteran was asked to submit any evidence in her possession that pertained to her claim. The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The veteran was provided with such notice in March 2006. The veteran was provided with complete VCAA notice prior to the May 2006 rating decision. The Board finds that the content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The veteran been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. Neither the veteran nor her representative has contended that any evidence relative to the issue decided herein is absent from the record. The veteran has been afforded an examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that during the hearing, the Board Member identified potential evidentiary defects and allowed a period of time for the production of evidence. The Board Member "highly" recommended that the veteran supplement the record. This complies with 38 C.F.R. § 3.103 (2007) and supplements VCAA notice. For the foregoing reasons, it is not prejudicial to the veteran for the Board to decide this appeal. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (2007); see Mercado-Martinez v. West, 11 Vet. App. 415 (1998); see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) ("an individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status"); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). That is to say, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez, 11 Vet. App. at 419. The veteran has contended that she has a hip disability that is due to a period of ACDUTRA. In June 2004, there was a report of trauma. X-rays showed swelling. She was instructed to apply a hot compress. July 2005 private treatment records show x-rays of the right hip were negative. The veteran complained of no hip pain on that day. She had normal range of motion with no length discrepancy or pain on motion. An October 2005 Maryland Army National Guard document indicates the veteran was issued a permanent profile for hypertension, blind left eye, lower back, and hip and thigh pain. She was retired from the Maryland Army National Guard. In conjunction with her claim, the veteran was afforded a VA examination in March 2006. X-rays revealed no fracture, dislocation, or bone destruction. There was no soft tissue abnormality. The impression was normal. She complained of radiating pain to her left hip. Examination of the left hip showed there was no tenderness to palpation. Normal flexion is to 130 degrees. Flexion was to 110 degrees and limited by pain. The rest of the motion was normal. The veteran had pain with adduction. The right hip showed flexion to 110 degrees with no pain. There was no weakened movement, incoordination, or fatigability of either hip. In March 2008, the veteran testified before the undersigned. She claimed that her hip pain was related to her back disorder. She was not claiming that she injured her hip. She claimed that her back injury caused her hip to hurt. The veteran complained of pain in her hip and demonstrated some limited motion in her hip on examination in March 2006. However, service connection can only be awarded for a disability that results from a disease or injury incurred in or aggravated by service. Therefore, there must be some underlying pathology for the veteran's complaints of hip pain and limited motion. The evidence of record shows that there is not. The evidence shows that x-rays of the veteran's hips were normal, as shown in July 2005 and March 2006. All competent evidence of record shows the veteran has no underlying pathology for her hip pain and limited motion. Basic entitlement to disability compensation derives from two statutes, both found in title 38, sections 1110 and 1131--the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the following words: "For disability resulting from personal injury suffered or disease contracted in the line of duty. . . ." 38 U.S.C. §§ 1110, 1131. Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. In the absence of an identified disease or injury, service connection may not be granted. See Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). Furthermore, she has presented no competent evidence of a nexus between her current complaints and the claimed in-service injury. The appellant's own opinion of a nexus is unsupported and not competent. Therefore, the Board finds that the evidence preponderates against a finding that the veteran has hip pain that is due to pathology (disease or injury) that was incurred in service. ORDER Service connection for hip disability is denied. REMAND The veteran's claim of entitlement to service connection for degenerative disc disease of the lumbar spine must be remanded for additional development. The veteran has contended that she injured her back while on ACDUTRA in June 2004. In April 2008, she submitted a copy of her orders for a period of annual training from June 12, 2004, to June 26, 2004. The Board finds that the RO must attempt to obtain confirmation of this service. In addition, the RO should attempt to obtain an independent copy of the June 24, 2004 treatment record provided by the veteran in April 2008. In attempting to verify its authenticity, the RO should contact the physician who signed it, if she is available, and inquire as to whether this is a document she would have prepared. If the RO is able to obtain confirmation of the June 2004 federal service, the veteran's claims file must be provided to a VA examiner to determine whether any currently diagnosed disability is due to the injury she contends she incurred in June 2004. Accordingly, the case is REMANDED for the following action: 1. Confirm the veteran's period of ACDUTRA from June 12, 2004 to June 26, 2004. 2. Attempt to obtain an independent copy of the June 24, 2004 treatment record submitted by the veteran in April 2008. If needed, contact the physician, if she is available, and ask whether this is a document she would have prepared. 3. If the veteran's federal service is confirmed, submit the veteran's claims file to a VA examiner for review and to determine whether any currently diagnosed spine disorder is due to an injury the veteran incurred during ACDUTRA. If an independent copy of the June 24, 2004 record is not obtained, the examiner is asked to comment on the following, based on a review of that record: a. Would an x-ray examination show swelling? b. Would a physician recommend a hot compress to bring down swelling? 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs