Citation Nr: 1008041 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 06-38 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The Veteran was evaluated for left hip muscular strain upon separation from service in 1969; no competent medical evidence of record shows treatment for a left hip disability thereafter. 2. The medical evidence does not show a current left hip disorder. CONCLUSION OF LAW Service connection for a left hip disability is not warranted. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran was sent a notice letter in October 2004 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The notice letter discussed above fully addressed all notice elements and was sent prior to the initial RO decision in this matter. Therefore, the Board concludes that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). No further development is required with respect to the duty to notify. The Veteran was informed of how VA determines disability ratings and effective dates in a letter of March 2006, thereby satisfying the notice requirements of Dingess. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Discussion The Veteran attributes current cramping, pain, and tingling of the left hip, at least in part, to a baseball injury sustained during active duty. See VA Examination, June 2009; see also VA Form 9, December 2006. According to the law, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2006). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. 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). Factual Background Again, the Veteran generally claims that his left hip disability stems from a baseball injury sustained during active duty. The Board has carefully reviewed the Veteran's service treatment records for findings of injury to the left hip. In this regard, a May 1967 Injury Report does document that the Veteran bruised his right pre-tibial area (i.e., front lower leg/shin region) when he slid into second base while playing baseball. However, the Injury Report and contemporaneous clinical examination are silent as to injuries, complaints, or diagnoses relating to the hip. The remaining service treatment records, with the exception of the separation examination discussed below, are also silent as to complaints, treatment, or diagnoses referable to the left hip. The Veteran's November 1967 separation examination shows that he complained of infrequent episodes (for the past month) of the left hip giving way. As a result, an orthopedic consultation was scheduled prior to separation. The November 1967 orthopedic evaluation revealed that the left hip had some decreased external rotation; however, X-rays were completely normal. The examiner stated that he suspected "only muscular strain" of the left external hip rotators. No further treatment was indicated. A subsequent Report of Medical History completed by the Veteran in December 1967 made no mention of hip problems or joint complaints. The post-service medical evidence consists solely of private treatment records dated from March 2004 to December 2005, which were submitted by the Veteran in January 2006, and a VA examination dated June 2009. Notably, none of these records indicate that the Veteran has a current left hip disability. For instance, the private treatment records contain diagnoses and evidence of treatment for the following conditions: left lower extremity lumbar radiculopathy, secondary to disk herniation, with related pain/numbness in the left gluteal region, knee, and posterior thigh; widespread degenerative changes to the cervical spine and C7-T1 disk herniation; chronic cholecysitis and choleslithiasis; and narcolepsy. Thus, while the private medical evidence demonstrates complaints of left thigh/gluteal/leg pain and numbness, it fails to document any such complaints as related to the left hip or to a left hip disability. Moreover, the lower left extremity symptoms have been expressly attributed to lumbar radiculopathy and a disk herniation (at L5-S1, left). See Neurological Associates Report, Dr. Wilson, April 21, 2004; see also VA Examination, June 2009. Thus, based on the private post-service medical records detailed above, there is simply no evidence of treatment, diagnoses, or complaints referable to a current left hip disability. This conclusion is further supported by the June 2009 VA examination, in which the examiner stated that there was "little evidence of any significant [hip] disorder." Indeed, contemporaneous x-rays revealed a normal left hip, with no fracture, dislocation, or osseous lesions. Notably, after conducting a full clinical examination of the Veteran, the examiner was unable to diagnosis any specific disability of the left hip. Analysis Again, the first question for consideration in evaluating a direct service connection claim is whether the competent evidence demonstrates a current disability. Based on the private treatment records and 2009 VA examination report outlined above, the competent evidence simply does not demonstrate current disability of the left hip. As such, this claim must be denied. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In so finding, the Board recognizes that the Veteran now complains of chronic left hip pain and cramping. See VA Form 9, dated December 2006. However, the Court has held that a symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). It follows then that service connection for left hip pain and/or cramping cannot be granted without evidence of an underlying hip condition. In denying the Veteran's claim, the Board further acknowledges the isolated, in-service complaint regarding the left hip occasionally "giving way." However, to the extent that the Veteran was assessed as having possible mild hip strain upon separation in 1969, the complete lack of post- service treatment for hip problems, coupled with the absence of a current diagnosis, tends to support a finding that the in-service muscle strain did not result in a chronic hip disability. Indeed, these facts suggest that the Veteran's in-service hip problem was nothing more than an acute and transitory condition, which resolved without any chronic residuals. In any event, nowhere in the evidence of record is there found any clinical notation suggesting that the Veteran's current hip complaints, are in any way linked to his active service. In fact, the 2009 VA examiner reached the opposite conclusion and opined that the Veteran's reported hip problems were less likely than not related to any in-service injury. In so finding, the examiner reasoned that there was "little evidence of any significant disorder, other than a possible mild hip strain while in-service as a single incident." Moreover, there was "ample" evidence of left lumbar radiculopathy, which easily could have reproduced the symptoms and signs seen in Veteran on examination (e.g., decreased range of motion, pain, and guarding of movement). It is noteworthy that the examiner also reviewed the Veteran's private medical treatment records and stated that he was unable to find any pertinent evidence related to the claimed left hip disability therein. Because the VA examiner's opinion was accompanied by a detailed rationale, and was provided only after a through review of the complete records, the Board finds his opinion to be highly probative as to the questions of current diagnosis and nexus. In so finding, the Board acknowledges that the Veteran has provided numerous statements affirming his belief that his current left hip pain is causally connected to his active service. However, such statements are not probative. Indeed, there is no evidence in the record that the Veteran has any medical knowledge or expertise to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The only competent medical opinion of record - that of the 2009 VA examiner - did not attribute the Veteran's claimed condition to any aspect of his military service. After consideration of the entire record and the relevant law, the Board finds no support for the conclusion that the Veteran's claimed left hip disability is related to his active service. Although possible hip strain was suggested in-service, there is simply no evidence that such strain resulted in a chronic disability; moreover, the record shows no current diagnosis of a hip disability, nor does it demonstrate treatment at any time after service for hip problems. Furthermore, there is no competent medical opinion that etiologically links this claimed condition to the Veteran's active military duty. On the contrary, the 2009 VA medical opinion does not attribute the claimed condition to service and otherwise finds no current hip disability. Thus, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a left hip disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine 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, 55-57 (1990). ORDER Entitlement to service connection for a left hip disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs