Citation Nr: 1006167 Decision Date: 02/19/10 Archive Date: 03/02/10 DOCKET NO. 08-16 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for trochanteric bursitis of the left hip, claimed as secondary to service- connected chondromalacia of the right knee. 2. Entitlement to service connection for chondromalacia of the left knee, claimed as secondary to service-connected chondromalacia of the right knee. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1971 to January 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for chondromalacia of the left knee is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDING OF FACT The Veteran's trochanteric bursitis of the left hip was not manifested in, and is not shown to be related to, his service, or to have been caused or aggravated by his service- connected chondromalacia of the right knee. CONCLUSION OF LAW Service connection for trochanteric bursitis of the left hip is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. An August 2005 letter notified him of the evidence necessary to substantiate his claim of secondary service connection (i.e., evidence of a connection between the claimed disability and a service-connected disability), the evidence VA was responsible for providing, and the evidence he was responsible for providing. He was not given notice of what is necessary to establish a disability rating or effective date of an award. However, such questions are moot because this decision does not grant service connection. The Veteran has had ample opportunity to respond/supplement the record; it is not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records including records from Social Security Administration (SSA) have been secured. The RO arranged for a November 2005 VA examination/medical opinion (which are adequate as discussed in greater detail below). Barr v. Nicholson, 21 Vet. App. 303 (2007). He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). The elements of a successful secondary service connection claim are: Evidence of disability for which service connection is sought; evidence of a service connected disability; and evidence that the disability for which service connection is sought is caused or aggravated by a service connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). (In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen, additionally, other substantive changes were made. As the claim was filed before the other substantive changes were made, only the changes that conform to Allen apply.) When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Trochanteric bursitis of the left hip was not manifested in service, and it is not shown or suggested by the record, nor alleged, that such disability is somehow directly related to the Veteran's active service. The instant claim is based strictly on a secondary service connection theory of entitlement. The Veteran contends that his left hip disability is secondary to his service-connected chondromalacia of the right knee. It is not in dispute that the Veteran has trochanteric bursitis of the left hip; and, as was noted above, he has established service connection for chondromalacia of the right patella. What remains to be established is that the trochanteric bursitis of the left hip was caused or aggravated by the service-connected chondromalacia of the right patella. An November 2005 VA joints examination report notes the Veteran's claims file was reviewed, and includes assessments of chondromalacia of the right knee, persistent, and left hip findings suggestive of trochanteric bursitis of the left hip. The examiner opined that findings were consistent with greater trochanteric bursitis of the left hip, and that the only way such disability could be related to the Veteran's service-connected chondromalacia of the right patella was by resort to speculation. Notably, speculative and inconclusive evidence cannot be used to support a claim for benefits. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). As the examiner is a medical professional who reviewed (and expressed familiarity with) the record, and explained in essence that there was no medical support for finding a nexus between the Veteran's left hip trochanteric bursitis and his service connected right knee disability, the opinion is probative evidence in this matter. Because there is no medical evidence to the contrary, it is persuasive. There is no competent (medical) evidence indicating that the Veteran's service-connected chondromalacia patellae of the right knee either caused or aggravated his trochanteric bursitis of the left hip. The Veteran's own statements (that his left hip disability is secondary to his service-connected chondromalacia of the right patella) are not competent evidence; he is a layperson and lacks the training to opine in matters regarding medical diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In light of the foregoing, the preponderance of the evidence is against the Veteran's claim. Therefore the benefit of the doubt doctrine cannot be applied; the claim must be denied. ORDER Service connection for trochanteric bursitis of the left hip is denied. REMAND The Veteran claims that he has a left knee disability that was caused or aggravated by his service-connected chondromalacia of the right patella. The November 2005 VA joints examination report notes assessments of chondromalacia of both patellae. The examiner opined, in essence, that an episode of blunt trauma to the left knee prior to a March 12, 2001 medical consultation (noted in computerized records) was the most likely etiology for the left knee chondromalacia and that it is not as likely as not to be consequential to the right patella chondromalacia (which was related to injury on active duty). Significantly, VA treatment records dated prior to the March 2001 incident include an October 2000 VA joints examination report which notes complaints of referred pain to the left knee. Furthermore, the Veteran alleges that the March 2001 incident was the result of his service- connected right knee buckling due to instability. The November 2005 examination report and medical opinion do not address this allegation. Finally, although the opinion provided by the examiner concludes that chondromalacia of the left patella "is not as likely as not to be consequential to the chondromalacia patellae of his right knee," this conclusion does not address whether the Veteran's left knee disability has been aggravated by his service-connected right knee disability. The claims folder contains VA treatment records through October 2008 for the Veteran. Clinical records of continuing VA treatment may contain pertinent information, are constructively of record, and must be secured. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) Accordingly, the case is REMANDED for the following action: 1. All records of VA treatment the Veteran has received for his knees since October 2008 should be secured. 2. The RO should then arrange for the Veteran to be afforded an orthopedic examination to determine whether his left knee disability was either caused aggravated by his service-connected chondromalacia of the right patella. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of pertinent medical history and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Is it at least as likely as not (50 percent or better probability) that the Veteran's left knee disability was caused or aggravated (i.e., chronically worsened) by his service-connected chondromalacia of the right patella? The response to this questions should specifically address the Veteran's allegation that because of instability associated with the service- connected right knee chondromalacia that knee buckled, causing the March 2001 incident (i.e., the examiner should opine, with explanation, whether or not the right knee chondromalacia is manifested by instability sufficient to cause buckling). (b) If it is determined that a left knee disability was not caused, but was aggravated, by the Veteran's chondromalacia of the right patella, the examiner should further specify, to the extent possible, the degree of disability (in terms of pathology and/or impairment) that is due to such aggravation. The examiner must explain the rationale for all opinions. 3. The RO should then readjudicate the Veteran's claim seeking secondary service connection. If it remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs