Citation Nr: 1007185 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-00 190A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1992 to September 1992 and October 2004 to December 2005. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The competent medical evidence fails to demonstrate that the Veteran has a right hip disorder that is related to her active military service. 2. The competent medical evidence fails to demonstrate that the Veteran has a neck disorder that is related to her active military service. CONCLUSIONS OF LAW 1. A right hip disorder was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. A neck disorder was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in December 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. The letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The December 2006 letter provided this notice to the Veteran. The Board observes that the December 2006 letter was sent to the Veteran prior to the March 2007 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the September 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2009), and Dingess, supra. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2009). In this regard, the Veteran's service treatment, VA treatment records, and private treatment records are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA opinion with respect to the issue on appeal was obtained in a May 2008 compensation and pension examination (C&P). 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinion obtained in this case is more than adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record, to including letters from the Veteran's private chiropractor, VA treatment records and examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2009). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). 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) (2009). Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a Veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The record reflects that the Veteran does not have the requisite medical expertise to diagnose her claimed disorder or render a competent medical opinion regarding its cause. Thus, competent medical evidence showing that her claimed disorder is related to service is required. The Veteran contends that she injured her right hip and neck as a result of wearing body armor while serving in Iraq and therefore requests service connection for her right hip and neck disorders. The Veteran's service treatment records from both periods do not indicate that the Veteran suffered from a right hip or neck disorder while in service. In this regard, her March 1991 entrance examination reported that the Veteran exhibited a normal spine and normal lower extremities. An examination report dated March 1992 also indicated that the Veteran had no back pain and no painful joints. The Veteran's July 2004 retention examination further revealed a normal spine and normal lower extremities upon examination and the medical history associated with the examination also did not indicate back pain or joint issues. A February 2007 VA examination notes that the Veteran contends that she has back pain that radiates into her right hip, but that the pain seems directly connected to her low back pain. The examiner opines that the hip pain the Veteran experiences is associated with her lower back condition and provides no separate diagnosis for the right hip. The examination report notes that the Veteran denied any neck problems. X-ray reports taken in association with the examination reveal a normal hip and an x-ray taken in March 2006 revealed a normal cervical spine. The treatment records were reviewed in September 2007 and an examiner noted that the Veteran has no diagnosed cervical spine or right hip disorder. The Veteran submitted March 2007 and December 2007 letters from her private chiropractor, in which the chiropractor states that the Veteran suffers from right hip and neck subluxations. Specifically the chiropractor notes that x- rays reveal that the Veteran suffers from subluxations at the L5, C1, and C7 vertebra. The letter also indicates that a rolling thermograph shows that the Veteran suffers from irritations in the lumbar and cervical spinal root. The Chiropractor diagnoses the Veteran with multiple subluxation of the cervical, thoracic and lumbar spine. However the Board notes that the chiropractor also notes that subsequent x-rays and rolling thermographic images reveal significant improvements in subluxation and significant decreases in irritations of the spinal root. Given the chiropractor's diagnosis, the Veteran was again afforded a VA examination in May 2008. Upon examination, the examiner found a normal right hip and therefore provided no diagnosis. The examiner noted that the Veteran's pain was more accurately placed in the right buttock area, as opposed to the right hip. With regard to the Veteran's neck disorder, upon examination the examiner also found a normal neck and again provided no diagnosis. The examiner noted that the Veteran's pain was more accurately placed in the Veteran's mandible area, rather than her cervical spine. X- rays taken in association with the examination revealed a normal hip and a normal cervical spine. Finally the examiner opined that with no complaints of either a right hip condition or a cervical spine condition in service and no current diagnosis with regard to either disorder, the Veteran's claims for right hip disorder and neck disorder are not related to active duty service. Initially, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). While the Board acknowledges the private Chiropractor's diagnoses of cervical, thoracic and lumbar subluxations, after a careful review of the above medical evidence, in its role as a finder of fact, the Board finds that the May 2008 VA examiner's opinion is the most persuasive medical evidence addressing the diagnoses and etiology of the Veteran's claimed right hip and neck disorders. The report reveals that the examiner conducted a thorough examination of the Veteran and provided a full and complete rationale for his opinion. In addition, the opinion is highly probative because it reconciles all of the medical evidence of record including the prior conflicting diagnosis by the private chiropractor. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). As the May 2008 examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, to include the aforementioned conflicting opinions, the Board finds that it is entitled to the most weight regarding the diagnoses and etiology of the Veteran's claimed right hip and neck disorders. Moreover, in addition to no current diagnosis, there is no indication that the Veteran suffered from either a right hip disorder or a neck disorder while in service and the May 2008 examiner provided a negative nexus with regard to any right hip or neck disorder being related to active duty. Therefore, with acknowledgment that the Veteran does have some evidence of a diagnosis by a private chiropractor, the Board finds that the preponderance of the evidence, to include service treatment records, VA treatment records, and VA examination reports indicate that the Veteran does not have a current diagnosis of a right hip disorder or a cervical spine disorder that is related to her active duty service. As such, the Board finds that the Veteran's claims for service connection must be denied. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a neck disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs