Citation Nr: 0815151 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-06 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Rebecca Feinberg, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The veteran's claim was previously before the Board and remanded in August 2006. All necessary development has been conducted, and it is properly before the Board at this time. FINDING OF FACT A hip disability, including arthritis, was not manifest during service or within a year after discharge, and is not related to the veteran's active service. CONCLUSION OF LAW A hip disability, including arthritis, was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (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 substantially complete application, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, 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 his 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 2005 told the veteran that VA would make reasonable efforts to obtain evidence necessary to support his claim. He was informed that he was required to provide sufficient information to allow VA to obtain records. He was asked to identify any VA or private medical treatment. The various types of evidence that might support his 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 his possession that pertained to his claim. He was informed of what the evidence needed to show to substantiate a service connection 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 June 2006. While complete VCAA notice in this case was not provided prior to the initial adjudication, the notice was provided and subsequently readjudicated by the RO in the supplemental statement of the case dated in December 2007, which was prior to the transfer and recertification of the case to the Board. 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 his 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 his claim. Although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. 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 his 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). For the foregoing reasons, it is not prejudicial to the veteran for the Board to decide this appeal. Analysis The veteran has contended that he has a bilateral hip disability that is due to a fall he experienced while in service. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) competent 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). The law provides that, where a veteran served ninety days or more of active service, and arthritis becomes manifest to a degree of 10 percent within one year from separation, such disease shall be presumed to have been incurred in service, even though there is no evidence of it during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A December 1966 service medical record shows the veteran reported having fallen backwards and striking his first thoracic vertebra on the floor. He had considerable tenderness in the region. In January 1967, the veteran's lower extremities examination was normal. No defects or diagnoses were noted. In a February 1981 private treatment record, the veteran indicated that, while in service, he hurt his neck and shoulders when he fell backwards. In May 1983, the veteran gave a history of injuring his neck and back in 1966. In October 1988, the veteran indicated he had left hip pain off and on since 1966. A separate October 1988 VA outpatient record shows the veteran complained of hip pain for fifteen years. A January 1989 VA outpatient record shows the veteran complained of shooting pain in his legs. X-rays were negative. In a February 1989 written statement, the veteran described his injury in service. He indicated that he slipped and fell on his back, neck, and shoulder. For approximately four hours afterwards, he had no feeling in his left hip. A February 1991 VA x-ray report shows the veteran's left hip was negative. A January 1993 VA x-ray report shows the veteran's hips were negative. In a September 1996 written statement, C.S., D.O. indicated that the veteran complained of joint pain that started after returning from Vietnam in 1966. He had joint pain and swelling of the hips. He was previously evaluated and found to have a form of osteoarthritis, degenerative in nature. A December 1998 private treatment record shows that x-rays of the hips revealed very minor spurring. In an April 2004 VA outpatient record, the veteran complained of hip pain. He stated that while in service, he slipped and fell and landed on his neck, shoulder, and hip area. In August 2005, the veteran underwent VA examination for his spine. He complained of hip pain. The examiner commented that the veteran's original fall in service appeared to account for multi-level trauma. In February 2007, the veteran underwent VA examination. He stated he injured both hips when he fell in service. The service medical records showed no evidence of fracture of the hips. Currently, he had sharp pains. X-rays revealed mild degenerative changes in both hips. The diagnosis was bilateral hip degenerative joint disease. The examiner opined that this was not a result of the veteran's back injury to the thoracic spine in service and was not related to any injury or disease in service. The veteran suffered from degenerative joint disease and had no specific compression-type injury to the hips. He has no history that would explain why his back pain and injury would cause any type of arthritic changes to his hips. The veteran has alleged that he injured his hips in service in 1966. The Board notes that, while the veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Such an opinion requires diagnostic skills and must be made by trained medical or psychiatric personnel in order to carry probative weight. First, the Board notes that the veteran has been inconsistent with his account of his fall in service. The first record showing the veteran complained of hip pain is dated in October 1988. At that time, the veteran indicated that he experienced hip pain since 1966. However, all evidence dated prior to October 1988 showed the veteran reported injury only to his neck, back, and shoulders when he fell in service in December 1966. The most probative evidence, the December 1966 service record, created contemporaneously with the injury, indicated only that he hit his first thoracic vertebra and had considerable tenderness in that area. He did not complain of hip pain or numbness at that time, and his lower extremities were normal upon discharge the next month. The first time the veteran indicated that he also injured his hips at that time was in October 1988, more than twenty years after the actual fall. The Board finds that the evidence created contemporaneously with the injury and the veteran's first post-service description of his injury when he sought medical treatment are most probative and persuasive. Therefore, to the extent the veteran's more recent statements regarding his injury contradict those made at the time of the fall and shortly thereafter, the Board will rely on the earlier accounts. Similarly, his remote post-service report of hip pain since 1966 (continuity of symptomatology) is not credible. His silence when otherwise affirmatively speaking renders a change in the history unreliable. First the Board finds that the veteran did not manifest arthritis of the hips to a compensable degree within one year of separation. X-rays of the hips were negative in 1989, 1991, and 1993. The veteran did not demonstrate spurring until December 1998, more than thirty years after separation from service. Furthermore, the veteran was afforded an examination in February 2007. After reviewing the evidence of record, the examiner concluded that the veteran's degenerative arthritis of the hips was not due to his fall in service. He indicated that the evidence showed the veteran did not have a compression injury of his hips in 1966 or at any time during service. The veteran's history provided no explanation as to why arthritis of the hips would result from his back injury in service. This is the only competent opinion of record regarding whether the veteran's hip disorder is due to his active service. The Board finds that it is a probative opinion, given the examiner's review of the claims file and stated rationale. Therefore, the Board finds that the evidence preponderates against a finding that the veteran has a bilateral hip disability that is related to his active service. Gilbert, supra. Thus, the claim must be denied. ORDER Service connection for a bilateral hip disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs