Citation Nr: 1301467	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  10-09 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a pelvic disability.


REPRESENTATION

Appellant (the Veteran) is represented by: Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from July 1970 to March 1972.  

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the RO in St. Paul, Minnesota.

In August 2012, the Board remanded this appeal for additional evidentiary development.  It has since been returned to the Board for further appellate action.  In addition to remanding the claim listed above, in August 2012, the Board also denied a claim for service connection for a spinal cord disability, on appeal at that time.  The Board's decision with respect to that claim is final.  See 38 C.F.R. § 20.1100 (2012).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  The Veteran did not engage in combat with the enemy.  

3.  During service, the Veteran sustained a kick to the back, but did not sustain a pelvic injury or disease.

4.  Symptoms of a pelvic disability were not chronic in service.

5.  Symptoms of a pelvic disability have not been continuous since service separation.

6.  Arthritis did not become manifest within a year of service separation. 

7.  No current pelvic disability is related to service.



CONCLUSION OF LAW

A pelvic disability was not incurred in service; arthritis is not presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (CAVC) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. 

In this case, the Veteran submitted his initial claim for service connection for pelvic disability in October 2009.  He was sent a letter later that month which advised him of the information and evidence necessary to substantiate his claim of service connection.  That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the October 2009 letter was sent to the Veteran prior to the initial adjudication of the claim in December 2009, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In short, VA has complied with its duty to notify the Veteran in this case.

VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim for service connection for a pelvic disability.  The only outstanding evidence identified by the Veteran or apparent from the record consists of records from St. James Hospital.  The Veteran contends that he underwent X-ray studies of his spine and pelvis at that facility in 1974 or 1975.  The record shows that he authorized VA to obtain records from the referenced facility, and that the RO attempted to obtain records from the St. James Hospital.  The St. James Hospital informed VA in November 2009 that no records for the Veteran were available; that facility apparently holds medical records for a period of 10 years, and the Veteran first authorized VA to obtain those records more than 3 decades after he was seen at the facility.  VA informed the Veteran of the unavailability of records from St. James Hospital in the December 2009 rating decision and January 2010 statement of the case.  Although VA did not specifically notify the Veteran that it was now his responsibility to obtain those records, given that there is affirmative evidence that his records with the St. James Hospital actually do not exist, the Board finds this deficiency to be harmless error.  The Board points out that the October 2009 correspondence advised the Veteran to submit pertinent records in his possession.  Accordingly, the Board finds that VA's efforts to assist the Veteran in obtaining records from the St. James Hospital has been fulfilled.

VA afforded the Veteran a VA examination in January 2011.  As to the claimed pelvic disability, the VA examiner reviewed the claims file, including the Veteran's account of an injury in service.  The examiner physically evaluated the Veteran, had X-ray studies taken of his lower back, and reviewed those studies.  An addendum opinion was requested in the Board's August 2012 remand, as the initial opinion did not directly address the claimed pelvic disorder.  In September 2012, the January 2011 VA examiner provided an addendum opinion based on claims file review.  The Board finds that the Veteran has been afforded an adequate VA examination and opinion in this case.  The January 2011 examination was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The resulting September 2012 opinion and rationale were consistent with the examination and the record.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  

The Board also notes that the Veteran initially requested a Board hearing in March 2010.  In July 2010, he requested a hearing before a Decision Review Officer (DRO) in lieu of a Board hearing.  His requested hearing was scheduled for November 2010, but on the scheduled day, he instead participated in an informal conference with the DRO, rather than a formal hearing; he indicated at that time that he would decide on what type if hearing he wished in connection with his appeal after speaking with a representative.  In June 2011, the Veteran's representative apparently clarified with the RO that the Veteran no longer wished a hearing of any type in connection with the appeal.  In sum, the Board finds that VA's duties to notify and assist the Veteran have been fulfilled.

Remand Compliance

As noted above, this appeal involves a remand by the Board for additional evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

In this case, the RO substantially complied with the Board's August 2012 remand instructions by obtaining a supplemental opinion by the examiner who evaluated the Veteran in January 2011.  The examiner provided an opinion as to whether the Veteran has a pelvic disability (including arthritis), and whether it is at least as likely as not that any such disorder is etiologically related to service, or was manifest within one year of discharge from service.  The examiner provided a rationale for each opinion offered.

Service Connection - Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009).  


Combat Rule

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor.  See VAOPGCPREC 12-99.  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999). 

Although the Veteran served during a period of war, the evidence does not suggest, and the Veteran does not contend, that he engaged in combat with the enemy.  As such, the combat rule is not applicable.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).

Analysis of Service Connection for Pelvic Disability

The Veteran contends that a pelvic disability is related to an incident in service in which he purportedly was kicked in the pelvic area in 1972.  The only information he has offered to VA concerning the circumstances of this injury is that the kick was delivered by a sergeant whose name he does not know, and that the incident occurred at an airport while he was awaiting transportation to Fort Sill in Oklahoma.  He alleges that, when discharged, he had X-ray studies of the spinal cord and pelvis which showed damage.  (It is unclear whether he means that the referenced damage was documented at discharge, or some time thereafter.)

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that symptoms of a pelvic disability were not chronic in service.  The service treatment records reflect no treatment for pelvic complaints, or any kicking injury.  The Veteran was seen in September 1971 for left side abdominal pain, which was diagnosed as a strain.  Nevertheless, as the Board found the Veteran's account of such a kick to be credible in its August 2012 decision, the Board continues here to find the account to be credible.  The Veteran does not contend that he was treated in service, and actually does not contend that he had pelvic symptoms in service.  Instead, he maintains only that, when discharged, he had X-ray studies which showed damage to the pelvis.  The Board points out that the X-ray studies he mentioned are likely the ones he purportedly underwent in 1974 or 1975, and not at service discharge.  To the extent he does assert that such X-rays were taken while he was in service, the records themselves undermine his assertion, and the Board finds that his account lacks credibility.  In this regard, the records do not mention X-rays.  If an appellant affirmatively describes undergoing a treatment modality that is not reflected in service records that are otherwise complete, the absence of mention of the modality in the record undermines the allegation.  This is consistent with Buchanan, supra, as the absence of records that should exist (according to an appellant's account) is a different situation from that where there is a mere absence of complaints (where an appellant never claimed to have sought treatment).  

The Board also finds that symptoms of a pelvic disability were not continuous after service.  Following service, the Veteran maintains that he sought treatment in 1974 or 1975, at which time X-ray studies purportedly demonstrated some sort of damage to the pelvis.  This is already more than a year after service separation.  Regarding the presence of arthritis or other disability at that time, the Board notes that a Veteran is, in general, competent to report a diagnosis of disability relayed to him by a medical professional.  See Jandreau, supra.  In this case, however, the Veteran has not identified the diagnosis purportedly relayed to him.  Instead, he has indicated only that the X-ray studies purportedly showed damage to the pelvis.  Such a description is too vague to constitute evidence of a disability at that time.  The credibility of the Veteran's account is further undermined by the absence of any records following the claimed X-ray studies until 2009, a period of more than 3 decades.  The Veteran has not contended that he experienced symptoms continuously from 1975 until 2009, or that he sought treatment after 1975 until 2009.  X-ray studies of the lower spine in December 2009 disclosed the presence of minimal arthritis of questionable clinical significance.  The records from 2009 indicate only that he had experienced his current symptoms for several years.  This rather substantial interval of years renders the Veteran's account of pelvic damage in 1974 or 1975 incredible.  If X-ray studies in 1974 or 1975 had in fact shown a disability, it is reasonable to expect that the Veteran would have sought some treatment in the intervening years, or that he at least now would aver that he experienced continuity of symptoms since the earlier X-ray studies.

The Board finds that no current pelvic disability is related to service.  A VA treatment record in January 2010 shows that the Veteran reported that his lower back pain began several years prior to that date, although he reported that he underwent physical therapy years ago after an initial injury in service consisting of a kick to the pelvis.  He was assessed as having sacroiliac joint dysfunction and piriformis hypertonicity contributing to pain.  This is in essence a recitation of assertions made by the Veteran in connection with his disability claim.  

The Veteran attended a VA examination in January 2011.  The examiner noted that there were no physical musculoskeletal abnormalities noted at service separation and a review of systems completed that same date identified no complaints of swollen or painful joints, having worn a brace for back support, history of broken bones, arthritis or rheumatism, bone, joint or other deformity, lameness, or back trouble of any kind.  His current complaints included left paralumbar region pain.  X-ray findings revealed no fracture or dislocation; joint spaces of the hips were preserved; there was mild osteophytic spurring along the right acetabular roof; the femoral heads were normal in shape.  The examiner did not include a diagnosis of any pelvic disability. 

The Board's August 2012 remand requested an addendum opinion from the VA examiner to specifically address the claimed pelvic disability.  After further review of the record, the VA examiner submitted an addendum opinion in September 2012, finding that there was no pathologic diagnosis of a pelvic disability or pelvic arthritis.  The examiner reiterated that, while in active duty status, the service treatment records identified no evidence of evaluation for or treatment of a pelvic condition. Separation history and physical examination identified no physical abnormalities of the pelvis or complaints of osseous pain referred to the pelvis.  Review of the file identified no evidence of ongoing care for a pelvic condition during the first year after separation from active-duty status.  Review of available VA outpatient notes identified no specific evaluation for a pelvic condition and no diagnostic imaging or treatment recommendations made regarding a pelvic condition.  Current physical examination identified no physical evidence of a chronic pelvic injury.  Current X-rays of the pelvis identified no acute osseous abnormality of the pelvis, and the sacroiliac joints were specifically reported to be unremarkable.  The examiner concluded that there is no pathologic diagnosis of a pelvic disability and specifically no pelvic arthritis.  

The examiner noted that mild degenerative changes of the right hip were noted as occurring along the right acetabular roof.  The Veteran reported being kicked in the posterior aspect of the pelvis, not in the right hip region.  The examiner reasoned that, given the mild degenerative changes of the right hip, the absence of any evaluation for or treatment of a right hip condition while in active duty status, the absence of a physical abnormality of the right hip at separation from active-duty status, and the absence of any evidence of ongoing care for a right hip condition during the first year after separation from active-duty status, the current mild degenerative changes of the right hip are most likely secondary to aging and an active lifestyle.

Even assuming the Veteran's account of being told he had "damage" to the pelvis in the 1970s were credible, the Board finds that the probative value of his account is outweighed by the September 2012 opinion of the January 2011 VA examiner.  That examiner determined that there was no pelvic abnormality, and that arthritis of the right hip was not related to the reported kick in the back in service.  The Board points out that the Veteran is a layperson, without any professed training, education or experience in medical matters, and that the VA examiner clearly is qualified in matters involving medical diagnoses and etiology.  The Board consequently finds that the Veteran's account of a pelvic disability in service or at any point prior to 2009 lacks probative value.  As already discussed, his account of continuity of symptoms since service is not credible.  

The Board notes that the VA examiner reviewed the evidence on file and acknowledged the kicking incident, but accurately noted the absence of any pelvic complaints or findings for many years after service.  The examiner reviewed current X-ray studies, and ultimately concluded that there was no pelvic abnormality, and that arthritis of the right hip was not related to the reported kick in the back in service.  He offered a rationale for his opinion which is supported by the record.  

The only opinion supportive of the claim in this case is that of the Veteran himself.  Although in some instances a layperson such as the Veteran is competent to offer a lay opinion concerning etiology, in this case, the Board finds that the matter is more properly within the realm of medical expertise.  This is particularly true given that the Veteran himself has been vague about what he was purportedly told in 1974 or 1975, and in light of the rather substantial gap of more than 30 years between service and the first assertion in the record of a pelvic disorder.  

In sum, the Board finds that symptoms of a pelvic disability were not chronic in service and  have not been continuous since service separation; arthritis did not become manifest within a year of service separation; and no current pelvic disability is related to service.  Therefore, service connection for a pelvic disability is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.



ORDER

Service connection for a pelvic disability is denied.



____________________________________________
T. D. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs