Citation Nr: 1124586 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-42 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a right hip injury. 2. Entitlement to service connection for a right arm/elbow condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1973, from November 1976 to November 1978, from January 1991 to March 1991, from March 2003 to October 2003, and from October 2004 to February 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that, in pertinent part, denied the Veteran's claims. The Veteran filed a notice of disagreement in September 2008, and the RO issued a statement of the case dated in October 2009. The Veteran submitted substantive appeal in November 2009. In February 2011, the Veteran and his spouse, accompanied by the Veteran's representative, testified at a hearing before the undersigned Acting Veterans Law Judge at the local regional office. A transcript of these proceedings has been associated with the Veteran's claims file. The issue of entitlement to service connection for a right arm/elbow disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The medical evidence does not indicate that the Veteran has residuals of a right hip injury. CONCLUSION OF LAW Residuals of a right hip injury were not incurred in or aggravated by service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in January 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. In addition to the foregoing, the Board observes that the Veteran's service treatment records, VA treatment records, and private medical records, have been obtained, to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran also testified at a hearing before the Board. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. Additionally, the Veteran was provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination to be thorough and adequate and it provides the information necessary to render a fair decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, including arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303(a). Service connection may also be established by showing continuity of symptomatology for a disability. This involves demonstrating (1) that a condition was "noted" during service; (2) that evidence of postservice continuity of the same symptomatology; and (3) that medical or, in certain circumstances lay evidence of a nexus between the present disability and the postservice symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The provisions concerning continuity of symptomatology do not relieve the requirement that there be some evidence of a nexus to service. For service connection to be established by continuity of symptomatology there must be competent medical or other evidence that relates a current condition to that symptomatology. See Savage 10 Vet. App. at 495-98 (1997). The existence of a current disorder 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 United States Court of Appeals for Veterans Claims (Court)'s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Id. In this case, the Veteran seeks entitlement to service connection for residuals of a right hip injury. The Veteran testified at a hearing before the Board in February 2011 that he had experienced significant problems with his hip since his last period of active duty service when he was serving in the Persian Gulf region. The Veteran explained that he had injured his hip in the same incident in which he injured his back (which is now service connected). The Veteran indicated that he was backed into by a Humvee. He reported seeking medical treatment for hip pain. The Veteran reported that he currently had pain walking. However, the Veteran stated that he did not have hip pain without back pain, explaining that the pain began in his back and radiated into his hip. The Veteran's service treatment records confirm that the Veteran was seen in November 2004 for a right hip injury. Specifically, the Veteran was noted to have been hit by a vehicle while on active duty. He was given a profile of no running or related activities for seven days. The injury was considered to be in the line of duty. In August 2009, the Veteran was afforded a VA examination. The examiner noted that the Veteran had been hit by a vehicle, a Humvee, in service, but had not been knocked out. He was basically bumped in the buttock area. The Veteran was noted to have had some hip pain and paresthesias down his right leg. The Veteran was seen for low back pain and right lateral leg pain in July 2006, but EMGs were indicated to be normal and. In this regard, the Board notes that the Veteran has been service-connected for chronic lumbar strain and spondylosis with history of right sciatic, resolved (also claimed as right leg). On examination of the right hip, there was tenderness in the right sacroiliac area but not around the hip. There was no atrophy or deformity in the lower extremities. Hip motion was 0-115 bilaterally, with internal rotation of 25, external rotation of 40, abduction of 30, adduction of 25, and extension of 5, all without pain. X-rays of the hip were unremarkable. After examination, the Veteran was found to have no orthopedic disease of the right hip. He was indicated to have a history of contusion, resolved. The examiner further indicated that the examination of the right leg was normal with no complaints. VA treatment records were also reviewed, but they too fail to show that the Veteran has been diagnosed with a right hip disability at any time during the course of his appeal. For example, x-rays of both hips in April 2009 showed no significant abnormality in either hip. The Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported right hip; and, 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 reaching this conclusion, the Board has carefully considered the Veteran's complaints of right hip pain which he voiced at his hearing and during his VA treatment sessions. However, pain 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. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In this case, the Veteran is competent to report that he experiences pain in the anatomical region of his hip. However, as noted pain alone is not considered to be a disability for VA purposes, and actually diagnosing a hip disability requires a medical expertise which the Veteran does not possess. A VA examiner has examined the Veteran and was aware of his complaints of hip pain. Nevertheless, the examiner concluded that based on a physical examination and a review of x-rays that there was not actually a present right hip disability. It is noted that the Veteran is service connected for a back disability with radiating pain. As such, while the Veteran may experience pain passing through his hip area, the medical evidence suggests that this pain is not actually caused by a hip disability. To the extent that the Veteran's service connected back disability is worse, the Veteran is free to submit a claim for an increased back rating. However, an actual right hip disability has not been shown by the medical evidence of record. As no evidence of a right hip disability has been presented in this case, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran's claim of entitlement to service connection for a right hip disability is denied. ORDER Service connection for a right hip disability is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's right arm/elbow claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran claims entitlement to service connection for a right arm/elbow disability. The Veteran underwent a VA examination in connection with the claim in October 2010. The examiner noted the Veteran's report that a tow bar had fallen on his right elbow and forearm while he was serving in Iraq in 2005. The Veteran reported that he had some abrasions and pain in his elbow and arm, but he cleaned up and returned to duty. After examination, the Veteran was diagnosed as status post trauma of the right elbow with persistent limitation of motion. The examiner opined that it was more likely than not that the Veteran's current elbow impairment was related to the injury that he sustained on active duty, despite the fact that no fracture could be demonstrated, and that the evidence indicated continuing symptoms in the arm since the original injury. In an addendum to the October 2010 report, the examiner then found that, after a thorough review of the claims file, he could not find any reference in the notes to the injury which the Veteran described when he was struck by a tow bar on his right elbow in 2005, and that he could not find where the Veteran sought treatment for the injury within one year of discharge. The examiner stated that, despite that, the Veteran's current limitation of motion in the right elbow was consistent with an injury causing temporary dislocation of the elbow or a fracture subsequently healed. He then stated that he could not substantiate the Veteran's injury from the claims file. In this regard, the Board notes that a further review of the claims file indicates that the Veteran was seen in May 2005 for superficial avulsion of the right posterior hand. The treatment note indicated that the Veteran had been lifting a tow bar from a vehicle when it fell and caught his hand. The Veteran was indicated to have a ROM wound, no active bleeding, and no acute distress. The treatment note indicated that the Veteran had a superficial avulsion right anterior that was cleaned and dressed. Based upon the foregoing, the Board concludes that this matter must be remanded and that, upon remand, the RO should arrange for the Veteran's claims folder to be reviewed by the October 2010 VA examiner (or a suitable substitute if the examiner is unavailable), for the purpose of preparing an addendum that specifically addresses the May 2005 service treatment note and then addresses, in light of this note and the medical evidence contained in the Veteran's claims file, whether the Veteran has a right arm/elbow disorder that had its onset in active service, within one year of service, or as a result of the Veteran's active military service, to include as a result of the accident with the tow bar in 2005. The examiner should also specifically identify the diagnosis pertaining to any right arm/elbow disability found. Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his claimed disabilities. The Veteran has received treatment at the Little Rock VA Medical Center. Records from this facility dated since August 2009 should be associated with the Veteran's claims file. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disorder. This should specifically include records of the Veteran's treatment at the Little Rock VA Medical Center dated since August 2009. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. After all outstanding records have been associated with the claims file, the Veteran's claims file and a copy of this remand should be returned to the examiner who conducted the October 2010 VA examination or to another examiner if he is unavailable. The examiner is asked to provide an addendum opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a right arm/elbow disorder that had its onset in active service, within one year of service, or as a result of the Veteran's active military service, to include as a result of the accident with the tow bar in 2005. The examiner should also specifically identify the diagnosis pertaining to any right arm/elbow disability found. In offering such opinion, the examiner is requested to fully review the claims file, to include the May 2005 service treatment record describing how the Veteran had caught his right hand while lifting a tow bar. The examiner should also consider the Veteran's lay statements regarding service incurrence and continuity of symptomatology of the claimed disorder. The rationale for any opinion offered must be provided. If necessary, the examiner should attempt to reconcile his opinion with any conflicting medical opinions of record. 3. Following the completion of the above, and any other development deemed necessary, the matter on appeal should be readjudicated. If the benefits sought are not fully granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the case is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs