Citation Nr: 1032083 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 07-19 845 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of right hip injury, other than a scar. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Andrew Mack INTRODUCTION The Veteran served on active duty from March 1951 to February 1954. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2005 rating decision in which the RO denied the Veteran's petition to reopen a claim for service connection residuals of right hip injury. In February 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2007. By rating decision in February 2010, the RO reopened the Veteran's claim and granted service connection for scar residual of right hip injury. However, in a February 2010 supplemental SOC (SSOC), the RO continued to deny service connection for residuals of right hip injury, other than a scar. In a February 2010 written statement, the Veteran indicated that he wished to continue his appeal of the issue of service connection for residuals of right hip injury, other than a scar. In June 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In August 2010, the undersigned granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2009). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Right hip injury has been conceded, and service connection for a scar has been established as residual to such injury. 3. Diagnosis of right hip arthritis, and finding of possible right hip neuropathy, were made many years after the Veteran's discharge from service; there is no credible evidence of continuity of right hip symptoms (apart from any associated with the scar) since service; and there is no persuasive medical evidence or opinion establishing that there exists a medical relationship between any such arthritis or neuropathy and the Veteran's in-service right hip injury. CONCLUSION OF LAW The criteria for service connection for residuals of right hip injury, other than a scar, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a March 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection. This letter also informed the Veteran of what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The November 2005 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the March 2005 letter-which meets Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement. The Board notes that the Veteran has not specifically been provided with general notice regarding VA's assignment of disability ratings and effective dates (in the event that service connection is granted). However, in this case, the absence of such notice is not shown to prejudice the Veteran. Because the Board herein denies the claim for service connection, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of VA and private treatment records, a letter from a private physician, and the report of a June 2009 VA examination and September 2009 addendum to that report. Also of record and considered in connection with the appeal is the transcript of the Veteran's June 2010 Board hearing, along with various written statements provided by the Veteran, and by his representative and wife, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with this claim is required. The Board notes that the Veteran's service treatment records appear to have been lost. The RO attempted to obtain such records through requests to the National Personnel Record Center and the Records Management Center, and each request elicited a negative response. In October 2005, the RO made a Formal Finding of the Unavailability of Service Medical Records for the Veteran's service. On these facts, the Board finds that no further RO action in this regard is warranted. The Board also notes, as discussed in more detail below, that the Veteran has asserted that he received treatment for residuals of his right hip injury in the 1950s, 1960s, 1980s and 1990s; however, he has indicated that such records are not available. He also has not provided information or authorization for VA to obtain any existing private treatment records that it has not obtained. Under these circumstances, the Board finds that no further RO action to obtain any outstanding post-service medical records is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. 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; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree (10 percent for arthritis) within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Initially, the Board notes that the Veteran's service treatment records appear to have been lost. The RO attempted to obtain such records through requests to the National Personnel Record Center and the Records Management Center, and each request elicited a negative response. In October 2005, the RO made a Formal Finding of the Unavailability of Service Medical Records for the Veteran's service. The Board points out that, in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). In this case, the Veteran asserts that, during service in approximately July 1953, while using a table saw, a wood board flew out and struck him in the right hip area, causing him injury for which he was treated with dressings and stitches. Although no medical record of this injury exists, VA has conceded the occurrence of this in-service injury, and in February 2010, the Veteran was granted service connection for scar residual to the right hip injury. In a January 2005 written statement and in his February 2006 NOD, the Veteran asserted that he received treatment related to residuals of his right hip injury in the 1950s, 1960s, 1980s and 1990s, but indicated that such records were not available. The first post-service medical record related to the Veteran's hips is an August 1992 private treatment record, which indicates that the Veteran complained of "about a month of bilateral hip pain." It was noted that the Veteran appeared to have stiffness around both hip joints, with loss of motion and pain. The Veteran was diagnosed as having bilateral hip arthritis, and it was noted that he was taking Advil intermittently, which seemed to be helping his hip. The Veteran filed his original claim for service connection for residuals of a right hip injury in July 2000. An April 2001 private treatment note indicates that the Veteran reported getting hit by a board thrown from a saw in 1953. The Veteran reported that the board went through several layers of clothing and opened his right hip area down to the bone, and that he had had hip problems ever since. The Veteran reported that he had seen some doctors for his in-service hip injury since then. It was noted that X-ray studies showed surprising lack of arthritic change in the right hip, that the pelvis appeared relatively symmetrical, and that no sign of old pelvic trauma was seen. The Veteran was diagnosed as having chronic right hip difficulties with history of old trauma, including soft tissue injury to the right hip. An April 2001 magnetic resonance imaging (MRI) of the right hip showed a basically normal MRI, with no sign of avascular necrosis or any destructive process in the right hip or pelvis. It was noted that the Veteran continued to experience problems with weakness, giving way and falling. A May 2001 private treatment note reflects the Veteran's report of persistent pain in the buttock, hip, groin and anterior thigh ever since his in-service injury. The Veteran reported that, if he stood or sat too long, he developed a burning dysesthetic sensation over the anterolateral thigh, down into the calf. It was noted that, initially, the Veteran told the examiner that he thought that his muscles were strong, but that, over the course of the conversation, he stated that his leg had been dragging ever since his injury, and that when he jumped down from a tailgate or moved in certain ways he could dislocate his hip joint. On examination, atrophy of the right quadriceps muscle and adductor, and that the Veteran walked with an antalgic gait, were noted. The examiner stated that the Veteran was not the best historian, but that the examiner believed that his problem had progressed. The examiner further stated that, clinically, it looked as if the Veteran had sustained injury to both the sciatic nerve region in the hips, as well as the femoral nerve in the groin, and that, putting this all together clinically with his injury, the examiner wondered if the soft tissue injury and femoral nerve lesion caused him to favor the right leg enough so that he developed more diffuse weakness of the hip musculature, and that, over time, he had developed a sciatic nerve irritation in the region of the hip, causing his more distal leg complaints. It was also noted that, given the fact that the Veteran did not really want to work up with electromyography (EMG) or MRI, this was a conjecture, but the examiner thought it would adequately explain what she was seeing on examination. A written statement from the Veteran's wife, received in January 2005, indicates that when she married the Veteran in February 1966, she was shown the scar on his right hip bone, and told never to touch him there. It also indicates that the scar continued to be touch sensitive, that he has always walked a little lop-sided because his right side was not correct, and that as he had aged, the pain had increased. A September 2005 VA treatment note indicates that the Veteran had mild right lumbar and sciatic notch tenderness, and that his right lower extremity was very weak. An April 2007 VA treatment record indicates that the Veteran reported continuing and worsening right hip pain. It was noted that he described a burning, painful sensation from the right gluteus maximus throughout the lateral right thigh, extending to just about the ankle, numbness from the distal right thigh through the mid-right shin, and right lower extremity weakness. The Veteran was diagnosed as having right hip pain and neuropathy. The report of a May 2007 VA X-ray reflects an impression of rather severe osteoarthritis of the right hip, and mild to moderate osteoarthritis of the left hip, with no evidence of fracture or focal destruction, and extensive arterial calcifications noted. It was noted that X-rays revealed "rather severe wear and tear type of arthritis" of the right hip, and slightly less pronounced arthritis in the left hip. A May 2007 VA bone scan report indicates no abnormal blood flow or blood pool, increased uptake in the right acetabular region, more so than left, suggestive of degenerative process, and other changes suggestive of degenerative process. An April 2008 private X-ray report indicates that internal and external rotation views of the hips demonstrated marked narrowing of the joint space, with some regional osteophytosis and no fracture or subluxation. The Veteran was diagnosed as having moderate to severe osteoarthritis with acute process. An April 2008 letter from a private physician indicates that the physician had been asked to provide a letter in support of the Veteran's assertion that a traumatic injury to his hip may have contributed to his development of debilitating osteoarthritis of the right hip. The physician stated that he had only examined the Veteran once, which was earlier that month, when he came in for an acute rib injury, but that he was limping and using a cane at the time for his chronic right hip pain. The physician stated that the Veteran described in injury sustained in 1953 involving a table saw, and that his injury never healed well. The physician further noted that hip X-rays revealed moderate to severe osteoarthritis in the right hip, and that trauma is one of the well-recognized and well-studied risk factors and likely causative agents leading to unilateral hip osteoarthritis. The report of a June 2009 VA examination indicates that the Veteran worked as a fireman from 1958 to 1969, and became fire chief until 1985. The Veteran reported sacroiliac joint pain mostly, and also reported groin pain. It was noted that the Veteran had a scar of the right hip, but that the musculature of the scar was not affected underneath in the anterior superior iliac spine. It was noted that this was a region where the hip flexors tied into, and that he had no deficit to mechanical symptoms other than sharp pain. Examination of the right hip showed range of motion dramatically worse on the right than the left. The Veteran was assessed as having right and left hip degenerative arthritis. The examiner stated that, as it was 50 years after the Veteran's in-service injury, he could not say if the right hip was worse because of the Veteran's original in- service injury without resorting to pure speculation. A September 2009 addendum to the June 2009 VA examination report indicates the June 2009 examiner's opinion that because the Veteran had been a fireman for many years and had had physically laborious jobs of lifting and carrying, and because of the length of time in which the Veteran had not sought any treatment, it would be left to pure speculation whether his right hip arthritis was related to the military or to his work as a fireman. The examiner stated that, as a fireman, the Veteran had reason enough to have degenerative arthritis, and that either this occupation or the one time injury to the hip could have been the cause, but that, given the amount of time that had past, the determination would be left to pure speculation. During the June 2010 hearing, the Veteran testified that his in- service accident caused a wound on his hip down to the bone, but that no X-rays were taken at the time. He testified that he worked in retail after his period of service, but left because he could not stand on his legs because of the hip injury, and that he became a fireman, in part, because he could lounge around unless there was a fire. He stated that, as a fireman, he suffered constant pain from his right hip condition. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. The above-cited evidence reflects that, in addition to the scar for which service connection has been granted, the Veteran has been diagnosed with right hip arthritis, as well as, on at least one occasion, right hip neuropathy. However, competent evidence does not persuasively establish that the Veteran's current right hip arthritis or any right hip neuropathy is a residual of in- service right hip injury, as alleged. While the Veteran asserts that he received treatment related to claimed residuals of his right hip injury in the 1950s, 1960s, 1980s and 1990s, the first post-service medical document related to the Veteran's hip is an August 1992 private treatment record, which indicates that the Veteran complained of "about a month of bilateral hip pain," and that he was diagnosed as having bilateral hip arthritis. As this record is dated nearly 40 years after the Veteran's separation from service, the provisions for establishing service connection for arthritis on a presumptive basis are not applicable. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board further notes that the Veteran's report at the time of treatment in August 1992 of "about a month of bilateral hip pain," along with the absence of any prior mention of a long history of hip pain, and the documented X-ray results, are considered more persusasive that than the report of continuity of right hip symptoms since service reflected in some of the Veteran's medical records. There simply is no documentation of the Veteran relating any hip problem back to his in-service injury or to his period of service until after he filed his original claim for service connection for residuals of a right hip injury in July 2000. The Board also points out that, in April 2004, no sign of old pelvic trauma was seen on VA X-ray examination and that the Veteran had a basically normal MRI, with no sign of any destructive process in the right hip or pelvis. Also, while the May 2007 VA X-ray report indicates severe osteoarthritis of the right hip, such arthritis was characterized as "rather severe wear and tear type of arthritis" of the right hip, which was slightly less pronounced in the left hip. The May 2007 VA bone scan report indicates increased uptake in the right acetabular region, more so than left, suggestive of degenerative process. In short, X-rays and other diagnostic test reports do not support a finding that the Veteran's current right hip arthritis is related to past trauma or injury. The Board further finds that no medical opinion evidence persuasively supports the claim. While, in April 2008, the Veteran's private physician indicated that trauma is one of the well-recognized and well-studied risk factors and likely causative agents leading to unilateral hip osteoarthritis, the physician did not actually opine that the Veteran's right hip was likely caused by trauma. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (holding that a physician's generic statement that there was a possible link between the type of injury the veteran incurred in service and the type of current disability he had, but not specifically linking a veteran's in- service injury to the veteran's current disability, was too general and inclusive to support the veteran's claim). Furthermore, the physician did not acknowledge that the Veteran has bilateral, rather than unilateral, hip arthritis, even though such arthritis has been noted to be more severe in the right hip. The Board also notes the May 2001 private treatment note indicating that, clinically, it looked as if the Veteran had sustained injury to both the sciatic nerve region in the hip and the femoral nerve in the groin, and that the examiner wondered if such injuries had caused him to favor the right leg enough that he developed diffuse weakness of the hip musculature, and, over time, a sciatic nerve irritation in the region of the hip. However, that same May 2001 private examiner stated that, although the examiner thought that this would adequately explain what she was seeing on examination, this was only conjecture. Furthermore, there is no explanation from the May 2001 examiner, or elsewhere in the medical record, as to how, if he had been favoring the right leg over the years, the Veteran had "rather severe wear and tear type of arthritis" of the right hip, but mild to moderate osteoarthritis of the left hip. To whatever extent the above-noted comments were intended to establish a nexus between this Veteran's current right hip arthritis and his in-service hip injury, the Board notes that such comments are speculative, or inconclusive in nature, and, therefore, inadequate to support the Veteran's claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil, 8 Vet. App. at 463; Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Again, while the May 2001 private examiner stated that it looked as if the Veteran had sustained injury to both the sciatic nerve region in the hips and the femoral nerve in the groin, and that the examiner only wondered if such injuries caused him to favor the right leg so that he developed more diffuse weakness of the hip musculature and, over time, a sciatic nerve irritation in the region of the hip, that same May 2001 private examiner stated that this was only conjecture. Also, again, while the April 2008 private physician's letter indicates that trauma is one of the well-recognized and well- studied risk factors and likely causative agents leading to unilateral hip osteoarthritis, that physician, who had only treated the Veteran one time, did not state that the Veteran's right hip arthritis, specifically, was likely caused by trauma, or acknowledge that the Veteran has bilateral, rather than unilateral, hip arthritis. The Board further notes that, in rendering their comments, the May 2001 and April 2008 private doctors appear to have relied on the Veteran's reported history, including his reports that he had had persistent right hip pain and problems since his in-service injury in 1953. Neither doctor noted the absence of any medical documentation of a right hip problem until 1992, or acknowledged review of the August 1992 private treatment record indicating that the Veteran complained of "about a month of bilateral hip pain," which contradicts the Veteran's reported history of persistent hip problems since service. The Board finds that these factors further diminish the probative value of the medical comments provided by such doctors. The Board notes that as a medical opinion can be no better than the facts alleged by a veteran, an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). The Board also points out that the June 2009 VA examiner, who also provided the September 2009 addendum report, opined that because the Veteran had been a fireman for many years and had had physically laborious jobs of lifting and carrying, and because of the length of time in which the Veteran had not sought any treatment, it would be left to pure speculation whether his right hip arthritis was related to the military or to his work as a fireman. This conclusion appears more consistent with the documented record. Finally, to whatever extent the assertions of the Veteran, his wife and/or his representative are being proferred in an attempt to establish a nexus between current right hip arthritis and in- service injury, the Board points out that such attempt must fail. There is no question that the Veteran and his wife are certainly competent to describe factual matters capable of lay observation, such as the Veteran's symptoms and gait. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Fundamentally, however, as indicated above, this claim turns on the medical matters of current disability (here, arthritis and/or neuropathy, the diagnosis of which is not capable of lay observation) and nexus to service-matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the above- named individuals is shown to be other than a layperson without appropriate medical training and expertise, none is competent to render a probative (i.e., persuasive) opinion on the medical matters on which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for residuals of right hip injury, other than a scar, must be denied. In reaching this conclusion, the Board has considered its heightened obligation in this case to consider carefully the benefit-of-the-doubt doctrine. However, as no competent and persuasive evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for residuals of right hip injury, other than a scar, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs