Citation Nr: 1127694 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 08-36 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for left hip fracture with arthritis. 2. Entitlement to service connection for migraine headaches, claimed as due to undiagnosed illness. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to November 1991, to include service in the Persian Gulf from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to the benefits sought. Upon first consideration of this case in March 2010, the Board denied several then pending claims on appeal for service connection. As to the two remaining issues of service connection for migraine headaches, and a left hip fracture, these were remanded to accomplish further development. The matters have since been returned to the Board. The Board presently decides the claim for service connection for left hip fracture with arthritis. The issue of service connection for migraine headaches 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. VA will notify the Veteran if further action is required on her part. FINDING OF FACT There is no competent and probative evidence linking any current left hip disability with the Veteran's military service, including an averred incident involving a left hip fracture. CONCLUSION OF LAW The criteria have not been met for service connection for left hip fracture with arthritis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2010), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through VCAA notice correspondence dated from June 2005 and August 2006, the RO/AMC notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Meanwhile, an addendum to the August 2006 correspondence informed the Veteran regarding both the disability rating and effective date elements of a pending claim for benefits consistent with the holding in the Dingess/Hartman decision. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice letters preceded issuance of the RO rating decision on appeal, and thereby comported with the definition of timely notice. The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran in this case, through obtaining service treatment records (STRs), personnel records, VA outpatient records, and private clinical records based on those outstanding treatment records the Veteran has identified. Pursuant to the Board's prior remand directive, an inquiry was made with the Veteran to identify the approximate dates and location of any relevant hospitalization for a left hip fracture, and a VA Form 21-4142 (medical authorization and release form) was enclosed for the purpose of indicating the source of any pertinent private treatment records. The Veteran's response was to identify a military base hospital, and the name of a private hospital in Atlanta, Georgia where she allegedly received treatment. No dates of treatment were mentioned. The Veteran indicated that documentation of the injury should already be in STRs (which as previously found, do not reference such injury). Based on the limited information provided, there is no plausible foundation to conduct a further records search for documentation of a left hip fracture in service. The Board at this time also observes that it is not necessary the Veteran undergo a VA Compensation and Pension examination. Rather, while in 2005 there was left hip symptomatology noted, there is no competent evidence of in-service left hip fracture as to demonstrate that the more recent symptoms may have a connection to the Veteran's military service. See 38 C.F.R. § 3.159(c)(4) (2010). See too, McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In support of her claim, the Veteran provided several personal statements. She declined the opportunity for a hearing. There is no indication of any further available evidence or information that has not already been obtained. Thus, the record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain disorders involving what are recognized as diseases of a chronic nature, 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; 38 C.F.R. §§ 3.307, 3.309. Provided however that the issue presented is still one of direct service connection, not presumptive, the foregoing applies. Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). There is no reference to a left hip fracture, or any left hip injury provided in the Veteran's STRs. Unfortunately, there is no separation examination of record as to provide a more comprehensive medical history. Records of post-service VA outpatient treatment include a May 2005 Persian Gulf War exam, during which the Veteran described an incident in which while on guard duty at a gate she was struck by a vehicle, requiring hospitalization and open surgery to the left hip and pelvis. According to the treating physician, the Veteran was "vague on follow-up." Upon physical examination, neurological evaluation indicated good hand to knee motion using the right leg, but inability to control for the maneuver on the left side, with possible hip injury. Otherwise, there was no objective sign of arthritis. On a primary care consultation the same month, the assessment was probable hip flexor strain. During another VA primary care consultation in November 2005 the Veteran described having continuing left hip pain, for which she took over-the-counter pain relievers. Thereafter, on an August 2006 VA Compensation and Pension examination for general medical evaluation, the Veteran reported that in regard to the musculoskeletal system, she had generalized muscle pain and joint pain. There were no trigger points or any sore areas. No specific joint hurt more than another. It was later noted objectively that the Veteran had generalized joint discomfort involving most all of her joints, however, she moved all of her joints equally well and moved them all through the full range of motion. This included both hips. All of the joints also appeared normal, and there was no tenderness on palpation. The diagnostic summary indicated myalgias of undetermined etiology, and arthralgia of undetermined etiology, but did not reference a left hip condition. In its March 2010 remand, the Board acknowledged the Veteran's indication of having sustained a left hip fracture in service, even though that fact was not corroborated through review of the service medical history. To ensure that there were no additional records of in-service treatment not yet obtained, the Board directed the RO/AMC to inquire with the Veteran as to the approximate date and location of hospitalization for a left hip fracture. Based on the Veteran's response, the RO/AMC was to then request hospitalization records for the appropriate medical facility from the National Personnel Records Center (NPRC). The RO sent a development letter to the Veteran in April 2010 requesting the pertinent information on in-service hospitalization. In a March 2011 statement, the Veteran responded that following an in-service left hip injury at Fort McPherson she sought treatment from physicians on the base, and at Grady Hospital in Atlanta, Georgia. According to the Veteran, the occurrence of the underlying incident should have been documented in her existing STRs. No approximate date was given for the stated treatment in question. Given the Board's comprehensive review of the evidence in this case, it is determined that service connection for residuals of a left hip fracture must be denied. As a preliminary point of consideration, there is no conclusive medical evidence of a current left hip disability for which service connection may be awarded. A finding of a current disability is indispensable to a valid claim for service connection. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."). See also Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At most, there is evidence in 2005 of left hip pain symptomatology, which in itself does not definitively show current disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("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."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). An August 2006 VA examination was then demonstrably free of left hip symptomatology. Regardless, since there was some evidence of left hip pain and possible constrained motion in 2005, the Board will for the sake of argument presume that the Veteran has a current left hip disability. The operative question for purposes of service connection then becomes whether such condition developed incidental to a left hip fracture during military service. Having closely evaluated the record, there is no documentary evidence of a left hip fracture in service, based on the STRs. Nor is there contemporaneous evidence of any private medical treatment around the Veteran's period of military service for a left hip problem. In short, there is no recorded evidence of left hip fracture. Ordinarily, that fact alone would not equate to categorically ruling out in-service injury. The Veteran is also competent to allege observable events from during military service. See e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). However, the Board runs into difficulty here accepting the Veteran's account of a left hip fracture as credible and definitive for case adjudication purposes. Initially, an injury as significant as a fracture of the left hip would reasonably be expected to be noted somewhere within the STRs, and then given in considerable detail, given the severity of the injury and likely recovery time. The Veteran's own account is likewise devoid of many details, including when and where the hip fracture transpired. The physician who wrote down her account himself found the description of events to be somewhat vague. With that in mind, the Board gave the Veteran the opportunity on remand to identify the timeframe of said injury and location of hospitalization, to support a medical records search. When prompted to do so, the Veteran did not identify a time period or give the year when the incident occurred. Without such information, the Board has no basis to conduct a records search of Fort McPherson hospital to ensure that all relevant STRs have been obtained. Nor did the Veteran complete a medical authorization form for records from a private medical facility she mentioned as having treated her, located in Atlanta, Georgia. Here again, then, there are no grounds to complete a meaningful records search. Given the Veteran's lack of forthcomingness in provided details about the alleged incident, unfortunately, the Board cannot presume based on her report alone that she sustained an injury as momentous as a left hip fracture during military service. For the reasons stated, moreover, efforts to attempt to corroborate the incident by way of medical documentation have been unsuccessful. It follows that there is no competent evidence of a precipitating in-service injury involving a left hip fracture, and no ensuing basis to conclude that current symptomatology has any causal connection to this described incident of military service. Accordingly, absent competent and persuasive evidence of a causal nexus linking left hip symptomatology to an averred left hip fracture during military service, the Veteran's claim must be denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for left hip fracture with arthritis is denied. REMAND Unfortunately, having reviewed the steps undertaken by the RO/AMC to comply with the Board's prior March 2010 remand on the claim for service connection for migraine headaches, it is presently concluded that still further development measures are in order Applicable law found at 38 U.S.C.A. § 1117 provides that VA disability compensation is available to a Persian Gulf veteran with a qualifying chronic disability that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or, to a degree of 10 percent or more not later than December 31, 2011; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(2). The term "qualifying chronic disability" refers to a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome; and (3) any diagnosed illness that the Secretary determines by regulation to be service-connected. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Moreover, those signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). With these governing provisions in mind, the Board's March 2010 remand ordered a VA medical opinion from a physician who had previously examined the Veteran in August 2006, addressing the issue of the etiology of the Veteran's migraine headaches. As the Board then pointed out, an essential component of this inquiry was whether the Veteran's headaches comprised an "undiagnosed illness," cognizable as a "qualifying chronic disability" under 38 U.S.C.A. § 1117. The Board's remand instructions were for a VA opinion indicating whether the Veteran's headaches by all available history, physical examination, and laboratory tests could not be attributed to any known clinical diagnosis. If the headaches were found attributable to a known clinical diagnosis, then the VA examiner was to otherwise state whether this condition was directly related to military service. In response, a May 2010 addendum opinion was obtained from the March 2010 VA examiner: [T]he Veteran has indeed over the years been examined and rendered a diagnosis of migraine headaches. This is substantiated by the record, on examination reveals she has been given this diagnosis. There is no specific test that is indicative of migraines, nor is there any laboratory test that can render that diagnosis; it is essentially a clinical diagnosis. Therefore, the diagnosis that I have given in my exam in August 2006 is a continuation of what had previously been given by her VA physicians in the past and stands as correct. (emphasis added) See May 2010 VA addendum opinion The preceding opinion, while attempting to answer the question posed by the Board, ultimately does not conclusively address whether the Veteran's migraine headaches are a form of "undiagnosed illness." A migraine headache literally is its own diagnosable condition as the VA examiner has pointed out. However, for the Board's use, and for adjudication purposes, the Veteran's migraines would be attributable to a known clinical diagnosis only if explained by an underlying physical pathology (or in some cases, mental pathology). For instance, if the Veteran's headaches were due to sinusitis, there would be a known clinical diagnosis. If the headaches were brought upon by recent life psychological stress, that too would be a known diagnosis. For the Board's purposes, though, as long as the Veteran has migraine headaches without explanation, there is no known clinical diagnosis -- just headache symptomatology with no identifiable cause. So the underlying issue of whether the Veteran has headaches due to "undiagnosed illness" essentially has not yet been resolved. (The Board further notes that there was an April 2011 VA Compensation and Pension examination which resulted in the opinion that it was "less likely as not" that headaches had their origin during military service. While clearly relevant to the claim before the Board, this opinion does not address at all the question of whether the Veteran has a "qualifying chronic disability" under 38 U.S.C.A. § 1117, and therefore as well does not resolve the matter of etiology of headaches.) Consequently, the Board believes that a new VA Compensation and Pension examination should be scheduled to properly address the etiology of the Veteran's migraine headaches, in accordance with the criteria of the VA undiagnosed illness statute. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Accordingly, this claim is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA neurological examination to determine the etiology of claimed migraine headaches. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. It is requested that the VA examiner provide an opinion as to whether the Veteran's migraine headaches by all available history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. The examiner is informed that under 38 U.S.C.A. § 1117, a disorder that cannot be attributed to a known clinical diagnosis is subject to presumptive service connection based upon service in the Persian Gulf. The examiner is further informed that for purposes of this particular inquiry, known clinical diagnosis specifically contemplates that the headaches have an identifiable pathology (e.g., sinusitis, or head injury residuals, or a response to post-service psychological stress) -- that is, as long as the headache symptomatology is unexplained, there is no known clinical diagnosis. Only if migraine headaches are attributable to a known clinical diagnosis, the examiner must then opine whether this disorder is at least as likely as not (50 percent or greater probability) directly related to the Veteran's military service. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 2. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claim for service connection for migraine headaches, as due to undiagnosed illness, based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim. Her cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. [continued on following page] 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs