Citation Nr: 1301175 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-29 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals of a left hip injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's current left hip disability either began during, or was otherwise caused by, his military service. CONCLUSION OF LAW The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If an injury or disease was alleged to have occurred or been aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, while the statute provides a presumption that a particular injury occurred in service, it is still necessary for the veteran to demonstrate the presence of a current disability and to establish a nexus between the in-service event and the disability. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran is currently seeking service connection for residuals of a left hip injury he believes is the result of his military service. The Veteran served courageously and honorably in the Republic of Vietnam during a time of war. His DD-214 reflects he received many awards for his combat service, including three Purple Hearts. Therefore, the Veteran is entitled to the combat presumption discussed above. The law provides that a Veteran who served for six months or more shall be presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1132. On the Veteran's entrance examination the medical professional indicated the Veteran had previously broken a leg in 1953. The examination report does not indicate which leg the Veteran previously broke. However, the Veteran indicated he broke his right leg as a child, and it healed with no residuals of the injury. As such, the Board is convinced the Veteran was in sound condition upon entrance to service, and the presumption of soundness applies. The evidence of record establishes that the Veteran currently has a left hip disability. However, a currently diagnosed disability alone is not sufficient grounds for service connection. Rather, the disability must be caused by service, or caused or aggravated by a service-related injury. This connection can be established by either medical opinion of record or by credible lay evidence that establishes continuity of symptomatology. While it is conceivable that the Veteran may have injured his left hip during service, the Board alternatively finds that his current hip disability is not related to any in-service injury. First, while the Veteran has asserted that he injured his left hip on two occasions in service, a chronic left hip disability is not shown by the service treatment records. In fact, the service treatment records fail to note any specific injury to his left hip. The records do reference two different incidents of damage to the Veteran's left side. The first occurred in September of 1966 when the Veteran fell on a rock during a night training exercise. Following this slip and fall, the Veteran was treated for contusion on the left side of his body. However no specific trauma to his left hip, or any injury other than bruising, was noted. It is reasonable to expect that if an injury to the left hip joint was present it would have been noted when the Veteran specifically sought treatment following the fall. Additionally, the service treatment records do not reflect the Veteran received any follow-up treatment after the fall. The Veteran's second injury to his left side occurred during combat in January 1968 when a mortar exploded near him. The Veteran has asserted that he was blown up into the air when the mortar round exploded. Following this explosion he was admitted to the hospital for multiple fragment wounds to his left shoulder, left arm, right shoulder, and the back of his neck. The service treatment records following this injury make no mention of any injury to the Veteran's left hip. The Board understands that during combat many injuries go unreported, however following this injury the Veteran was specifically treated for numerous injuries to his left side. It is reasonable to assume that if the Veteran had injured his hip in the mortar explosion he would have received treatment for it; however, the extensive treatment records only describe treatment for his left shoulder, arm, right shoulder, and neck. Furthermore, the radiographic testing following this injury focused on the Veteran's shoulders, neck, and feet. No x-rays appear to have been taken of his left hip, and the Veteran has not made any assertions to the contrary. In fact, there is no record of any structural damage to the Veteran's hip while in service. The lack of any medical notation suggests that a significant left hip injury did not occur. Furthermore, the separation physical failed to indicate any musculoskeletal disabilities to the Veteran's left leg or hip. This fact takes on added significance because the injuries to the Veteran's back and shoulders, as well as broken elbow and finger, were specifically noted. It is reasonable to assume that if he was having problems with his left hip at that time it would have been similarly noted on the report. The first indication of a left hip disability is not of record until the spring of 2008, nearly forty years after the Veteran separated from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). While the absence of treatment alone is not dispositive, the Board does find the lack of any post service medical treatment for a hip disability for multiple decades to be probative in this case. This is not a case in which the Veteran was unaware of the VA; rather he filed his initial claim within six months of separation from service. In this initial claim, the Veteran sought service connection for several disabilities, including residual damage to both shoulders, but made no mention of any left hip issues at that time. The filing for service connection for other complaints related to injuries during service establishes that the Veteran was aware of the VA and the process for filing disability claims for service connection. Furthermore the Veteran filed multiple claims with the VA through the years, including a claim for hearing loss in 1987 and PTSD in 2005. However, none of these claims mention any left hip disability until February 2009. Failure to seek service connection for injury to his left hip weighs against the conclusion that he experienced a left hip injury during service with chronic symptoms thereafter. Therefore, the Board finds the Veteran's failure to file a claim for a left hip disability during this time is probative evidence that the Veteran did not experience an ongoing left hip disability since service. In his formal appeal in May 2010, the Veteran argued that traumatic arthritis damage does not show up for many years following the trauma, suggesting that the alleged hip trauma during service initiated the development of his hip arthritis. However, while the Veteran is competent to report what comes to him through his senses, such as pain in his hip, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his current disability occurring several decades after service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, a medical opinion is needed to establish a nexus between the Veteran's combat injury and his current left hip disability. The medical opinion evidence of record does not, however, establish that the Veteran's current left hip disability was caused by his military service. The Veteran's first reports of pain and limited mobility of his left hip are from May 2008 when he told his doctor he could no longer cross his left leg over his right due to pain. X-ray evidence from his visit shows no evidence of fracture, dislocation, or other bone or joint pathology in the left hip. The physician opined that the Veteran's pain was stemming from his groin/pelvis area. There is no suggestion in the record that the Veteran damaged his pelvis or groin during his military service. Throughout the Veteran's post-service treatment records he describes shooting pain down his left groin, left inner thigh, and down to left knee. However, no x-rays of the Veteran's hip show structural damage but rather only reveal arthritic changes and a slight bulge in the L3-4 disc of the lumbar spine. Therefore post-service treatment records do not establish the Veteran experienced a left hip injury during service and continued to experience chronic symptoms thereafter. Based on the Veteran's allegations, he was given a VA examination in May 2009 to investigate the etiology of his hip arthritis. Prior to this examination the examiner reviewed the Veteran's service treatment records and claims file, and it is clear from a review of the examination report that the examiner had a complete and accurate understanding of the Veteran's medical history, including his in service injuries. The examiner also personally interviewed and examined the Veteran. Despite this extensive knowledge of the Veteran's history and current condition, the examiner stated she could not give an opinion as to whether the Veteran's left hip condition is related to his time in service without resorting to mere speculation. A conclusion that an etiology opinion is not possible without resort to speculation is a medical opinion and may be relied upon by the Board if the examiner explains the basis for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case, the examiner gave several reasons for her inability to reach an etiology conclusion. She noted there is no record of a specific left hip injury in the Veteran's service treatment records, the first complaints of left hip pain were not made until 2008, medical professionals suggested the pain was due to a lesion in the left sacroiliac joint rather than the left hip, and there was evidence of degenerative arthritis in other joints. Essentially, the examiner is asserting that she could not find sufficient reasons to connect the Veteran's current disability to his military service. This reasoning is based on a lack of evidence of any nexus with service despite a full review of the Veteran's medical and service history. The examiner's opinion provided a rationale for her inability to find service connection, and was based on a complete and accurate review of the record, as well as personally interviewing and examining the Veteran. As such, the Board finds this medical examination is adequate and may be relied upon by the Board as a finding that the Veteran's current disability is not related to his military service. As described, the evidence does not show that it is as likely as not that the Veteran's current left hip disability was either caused or aggravated by his time in service. First, there is no record that the Veteran injured the area in question during service. Second, no damage to the Veteran's left hip was found at his separation examination. Third, the Veteran made no complaints of pain to this region until nearly forty years after service. Finally, no medical professional has found that the Veteran's current pain is related to his time in service. As such, the preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107. The Veteran's claim for service connection for residuals of a left hip injury is denied. 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 the 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 April 2009, 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. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Veteran and his representative have specifically challenged the adequacy of this examination, stating that the examiner abrogated her responsibility to render an opinion. However, as discussed above, the Board finds that the examiner's opinion that she cannot reach a conclusion without resorting to speculation was supported by a rationale based on a complete review of the Veteran's claims file. As such, the Board finds that the medical examination provided by the VA was adequate and the Board's duty to assist has been met. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As discussed, 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. ORDER The Veteran's claim for service connection for residuals of a left hip injury is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs