Citation Nr: 1126449 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 07-28 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a left hip disorder. 3. Entitlement to an increased disability evaluation for a service-connected anxiety disorder, currently rated as 30 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from October 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board will decide the Veteran's service connection claims for hip disorders below. The issues for an increased rating for anxiety, and for a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In a statement of record dated in October 2010, the Veteran reiterates a claim that a 2007 decision denying service connection for a bilateral hip disorder was clear and unmistakable error (this claim had been denied in a previous rating decision dated in August 2007). In a statement of record dated in December 2010, the Veteran indicates an interest in claiming an increased rating for his service-connected kidney disorder. The Board does not have jurisdiction over these issues as neither has been adjudicated by the Agency of Original Jurisdiction (AOJ). They are therefore referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's right hip disorder is unrelated to service. 2. The Veteran's left hip disorder is unrelated to service. CONCLUSIONS OF LAW 1. A right hip disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. A left hip disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will initially discuss whether the claims decided here have been properly developed for appellate purposes. The Board will then address the merits of the claims, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claims, and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA provided the Veteran with several VCAA notification letters dated between April 2006 and February 2009. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. The Veteran was informed of the elements of his claims, and of the evidence necessary to substantiate the claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). See also Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009) (notice need not be Veteran specific, provide alternative diagnostic codes or ask the Veteran to submit evidence indicative of daily life impairment). The Veteran was advised of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claims. VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini). The Veteran received VCAA notice prior to the adverse rating decision on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). And the Veteran's claims have been readjudicated in statements of the case and supplemental statements of the case of record. See Overton v. Nicholson, 20 Vet. App. 427 (2006) (a timing error may be cured by a new VCAA notification letter followed by a readjudication of the claim). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions. And VA obtained medical records relevant to this appeal. The Board notes that VA did not provide the Veteran with medical examination and an opinion for his service connection claim for a bilateral hip disorder. A VA medical examination and opinion is required only when a reasonable possibility exists that such assistance would aid in substantiating a claim. 38 U.S.C.A. § 5103A. VA's duty to provide a medical examination is triggered where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability may be associated with the Veteran's service; but (4) insufficient medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). See also Duenas v. Principi, 18 Vet. App. 512 (2004). Here, no reasonable possibility exists that recent medical examination or opinion would assist the Veteran in substantiating his claim to service connection for a bilateral hip disorder. The medical evidence of record retrieved by the RO demonstrates that the Veteran currently has the disorder. Conducting medical examination to determine a diagnosis would serve no purpose here. Moreover, the record indicates that the Veteran's hip disorder did not manifest during service, during an applicable presumptive period following service, or in the several years following service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Conducting a medical examination for the purpose of rendering a nexus opinion would serve no purpose therefore. Indeed, the evidentiary foundation for a medical nexus opinion is lacking for the claims here. As such, no reasonable possibility exists that medical examination and opinion would aid the Veteran in substantiating the service connection claim to a bilateral hip disorder. See 38 U.S.C. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), Duenas and McLendon, both supra. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claims here. II. The Merits to the Claims for Service Connection Since January 1997, the Veteran has claimed service connection for several disorders which he asserts are due to injections he received in his buttocks during basic training in 1965. Claims for service connection for disorders of the buttocks and for disorders of the nerves in or near his buttocks have been previously addressed in final decisions by the RO and Board. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.1100 (2010). The claims on appeal addressed in this decision stem from an April 2006 original service connection claim in which the Veteran asserted that the in-service injections caused disorders involving his hips as well. In the July 2006 rating decision on appeal, the RO denied his claims. For the reasons set forth below, the Board agrees with that decision. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.303(a) (2010). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2010). Certain disorders, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 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). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection under 38 C.F.R. § 3.303 will be granted where the record demonstrates (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). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The record demonstrates that the Veteran has current hip disorders. A private orthopedic report dated in April 2006 indicates osteoarthritis in the bilateral hips. Private magnetic resonance imaging in August and May 2004 revealed advanced osteoarthritis in the right hip and mild arthritic changes in the left hip. Several x-ray reports of record dated from December 1995 indicate avuscular necrosis with degenerative changes in the right hip, and degenerative changes in the left hip. A June 2000 VA compensation examination report of record notes degenerative changes in both hips. And private and VA treatment records dated between the mid-1990s and April 2009 note multiple complaints of hip pain and limitation, and note arthritic changes in the Veteran's hips. The record lacks evidence, however, showing that the Veteran had a hip disorder during service, within the first year of discharge from service, or manifested a continuity of symptomatology indicative of a hip disorder in the years following discharge from service in 1968. The Veteran's service treatment records are negative for complaints, diagnoses, or treatment of a hip disorder. The Veteran's separation report of medical examination dated in 1968 is negative for a hip disorder. The earliest evidence of record that the Veteran had a hip disorder is found in private and VA medical records dated in the mid 1990s. The earliest diagnosis of a hip disorder is dated in the mid 1990s, over 25 years following discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be construed as evidence against a claim of service connection). And the Veteran did not assert service connection for disorders related to the claimed in-service injections until the late 1990s, almost 30 years following discharge from service. Moreover, despite the volumes of medical records in the claims file, and the many medical professionals who have reviewed the Veteran's theory that in-service injections caused him chronic residuals, the record contains no medical evidence of a nexus between a hip disorder and service, or the in-service injections. See Pond, supra. Rather, the record contains statements by medical professionals which indicate skepticism of the Veteran's theory of causation here. A June 2006 VA compensation examination report stated that neurological findings indicated that the Veteran was not injured by an in-service injection in 1965. And the Veteran's treating VA physician indicated in a statement received by the RO in August 1999 that he "concurred" with a rating decision which found that an injection in 1965 did not relate to a neurological problem in the buttocks. The examiner indicated that the Veteran's pain was not due to the injections and any residuals, but to a current right hip disorder for which the Veteran was referred to an orthopedic specialist. Nevertheless, certain evidence of record tends to favor the Veteran's claims. The record contains lay statements from the Veteran and his spouse. And the Veteran has submitted into the record studies and articles which address his theory regarding injections. With regard to the lay statements, the Veteran has repeatedly stated that his hip disorders result from the in-service injections, and has repeatedly stated that hip-region pain has continued since leaving service. The Veteran's spouse corroborated the claim by stating that she observed the Veteran's walking difficulty during his leave from boot camp in 1965. She also stated that the Veteran has had difficulty walking since then. See 38 C.F.R. § 3.303(b). Lay evidence may be used to diagnose a medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay evidence may be used to diagnose a condition when "(1) a 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"). Lay testimony can be considered competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As indicated earlier, lay evidence may show a continuity of symptomatology following service, and thereby prove sufficient to establish service connection. See Barr, supra. But the Board also notes that a layperson is not competent to prove matters requiring medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The issue in this matter is whether in-service injections caused the current hip disorder which began manifesting in the 1990s. This particular question is a medical question - is an internal pathology in the Veteran's skeletal system causally related to a medical procedure administered 45 years ago. Indeed, the internal nature of the hip disorders precludes lay observation by the Veteran and his spouse. Though each is competent to attest to the Veteran's walking difficulty during and after service, neither is competent to offer evidence regarding what disorder, if any, the Veteran may have had inside his hips. The Board therefore finds the Veteran's assertions, and those made on his behalf, to be of limited probative value. The lay witnesses in this matter are simply not competent to provide evidence that requires medical knowledge. The Board notes that it has also reviewed the articles and studies submitted into evidence by the Veteran. Though certain of these articles add substance to the Veteran's theory of causation here, none addresses the Veteran's case specifically. Each is therefore of limited probative value, and insufficient to establish the element of medical nexus. See Sacks v. West, 11 Vet. App. 314 (1998). In sum, the Veteran has clearly explained his theory of causation here - that injections received in the buttocks area during service in 1965 caused him to develop hip disorders. But the theory is unsupported by competent medical evidence. Indeed, in this protracted case, which includes volumes of medical evidence, not one medical professional expressly supports his theory. And the studies and articles submitted into the record are of no probative value in the absence of medical evidence directly supporting the Veteran's theory. See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). As such, in weighing the evidence of record, the Board finds the preponderance of the evidence to be against the lay statements and medical articles submitted in support of the Veteran's claims. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to service connection for a right hip disorder is denied. 2. Entitlement to service connection for a left hip disorder is denied. REMAND The Veteran claims entitlement to a disability rating in excess of 30 percent for his service-connected anxiety disorder. The Board finds remand for a new examination warranted here. In a March 2011 statement from the Veteran's representative, a new VA compensation examination into this claim is requested. As noted by his representative, the Veteran has not undergone VA examination since March 2008. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (finding that fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination). The Board will also remand the Veteran's claim for a TDIU as it may be inextricably intertwined with the claim for increased rating for an anxiety disorder. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001) (separate claims are adjudicated together when they are "intimately connected"); Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The Veteran should be scheduled for a VA examination with an appropriate specialist to determine the nature and severity of the Veteran's service-connected anxiety disorder. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints should be recorded in full. 2. The RO should then readjudicate the issues on appeal, to include the claim for a TDIU. If a determination remains unfavorable to the Veteran, the RO should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue(s). An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs