Citation Nr: 1301987 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 08-26 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a left hip disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from March 1996 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2009, the Veteran testified before the undersigned Acting Veterans Law Judge at a video-conference Board hearing. A transcript of the hearing is of record. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The Board's review discloses that none of the many electronic records found only in the "eFolder," and not in the claims file, are pertinent to the issues now on appeal. Therefore, there is no prejudice to the Veteran in proceeding to adjudication of his claims. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran does not have a right hip disorder that is due to injury or disease in service or proximately due to or aggravated by a service-connected disability and arthritis of the right hip was not manifest to a compensable degree within one year of discharge. 2. The most probative evidence of record shows that the Veteran does not have a left hip disorder that is due to injury or disease in service or proximately due to or aggravated by a service-connected disability and arthritis of the right hip was not manifest to a compensable degree within one year of discharge. CONCLUSIONS OF LAW 1. A right hip disorder was not incurred in or aggravated by active service, nor may service incurrence be presumed, and is not proximately due to, the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A left hip disorder was not incurred in or aggravated by active service, nor may service incurrence be presumed, and is not proximately due to, the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been satisfied by information provided to the Veteran in a letter from the RO dated in November 2007 before the initial adjudication of his claim in the March 2008 rating decision now on appeal. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his service connection claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his service connection claims. Thereafter, the claims were reviewed and a supplemental statement of the case was issued in February 2012. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the November 2007 letter and in subsequent correspondence dated in May 2008 as well. However, neither the November 2007 nor the May 2008 correspondence formally notified the Veteran of the information and evidence necessary to substantiate the secondary service connection theory of his claims. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. However, in the recent case of Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review, the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In the present case, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the issue of whether service connection for the left hip disorder was warranted on a secondary basis was raised in the March 2009 private medical opinion. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial rating decision, the RO did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Although the appellant never received such content complying notice, a review of the record demonstrates that he did have actual knowledge of the requirements to establish secondary service connection. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The transcript of his video conference Board hearing shows a discussion among the Veteran, his attorney, and the undersigned about both his hip claims and whether the left hip condition was caused by his inservice back injury and whether his right hip condition was caused by his left hip condition. The Board also notes that his then attorney argued for both direct service connection and secondary service connection in her April 2009 written submission. The report of the January 2012 VA examination also includes notations to the effect that the Veteran attributed his right hip pain to overcompensation for his left hip problems and his left hip condition to his inservice back injury for which he had chiropractic treatment. Finally, the Veteran's own private consultant, Dr. L.E.D., raised the issue of secondary service connection for the left hip claim in his March 2009 submission to VA. Therefore, the Board finds that the Veteran and his representative had actual knowledge of the requirements to establish a secondary service connection claim and any notice deficiency in this case has not prejudiced the Veteran. In addition, the Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, any defect in the notice provided to the Veteran in this case is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The duty to assist also has been fulfilled as service treatment records and post-service VA medical records have been requested or obtained and the Veteran has been provided with VA examinations. The Board finds that the available medical evidence is sufficient for an adequate determination. In addition, the Veteran was provided an opportunity to be heard when he testified during a video conference Board hearing. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307(a)(1), 3.309(a) (2012). Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a) (2012). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 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). Lay evidence can be competent and sufficient to establish a diagnosis of 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran seeks entitlement to service connection for both a left hip and a right hip disorder. In his written statements and Board testimony, the Veteran contends that he has had left hip pain continuously since he injured his back in service and currently has an intermittent right hip disorder. He has also contended that his right hip problem was due to his left hip and back disorders. Service treatment records do not specifically mention either the left hip or the right hip. Service treatment records indicate that in November 1997 the Veteran was evaluated by a chiropractor for complaints of lower back pain. It was noted that he said a year earlier he unloaded heavy boxes and crates. Assessment was chronic sacroiliac arthralgia. On an April 2002 report of medical history, the Veteran checked "yes" to having recurrent back pain and explained that he hurt his lower back in boot camp, saw a chiropractor, and that his back never recovered. The examiner noted that the Veteran hurt his back while unloading trucks in boot camp. When examined for separation in May 2002, diagnoses included "musculoskeletal/ LBP". On a May 2002 medical assessment, the Veteran reported that he strained his back in boot camp and it occasionally prevented him lifting and running. The examiner at that time noted that the Veteran had "LBP [that] began in boot camp has seen chiropractic for it in past". Post-service, VA treatment records associated with the claims folder or found on the eFolder computer system fail to show any treatment or diagnosis of a hip disorder. A VA examination dated in February 2008 noted the Veteran's complaint of pain in the hips, but otherwise provided no findings or a diagnosis related to either the left or the right hip. A March 2009 medical evaluation was prepared by L.E.D., D.C., a private chiropractor, who reviewed the Veteran's service medical records and current clinical examination findings. The pertinent diagnoses were segmental dysfunction at L4, L5, and the left sacroiliac, chronic left lumbosacral myositis, and chronic myositis of the left piriformis muscle. In Dr. L.E.D.'s opinion, the Veteran suffered an initial strain/sprain-type injury during boot camp that was aggravated by heavy lifting and caused the chronic back condition. Further, Dr. L.E.D. opined that the Veteran's left hip disorder, diagnosed as chronic myositis left piriformis muscle, was due to the back condition. Dr. L.E.D. explained that the piriformis muscle was attached to the sacrum and hip and was affected in the Veteran's original injury, became chronic over time, and was related to his low back. Dr. L.E.D. provided no diagnosis or opinion regarding the Veteran's claimed right hip disorder. During his June 2009 Board hearing, the Veteran denied having any pre-service back problems. He testified that in March 1996, while in basic training, he injured his back and left hip while unloading food from more than a dozen 18-wheelers over a 12- to 14-hour period. He said that he did not seek treatment for his back until he got to his first permanent duty station and told his division chief about his pain. This division chief then put in the paperwork for the Veteran to see a chiropractor on base. The Veteran also testified that he was an electronics technician in service and sometimes had to lift heavy electronic gear from aircraft, or lift the tailpipe of an aircraft, or move chain boxes used to tie down aircraft in case of hurricanes. He said a chain box weighed 400 to 500 pounds. He said this lifting of heavy objects in service hurt his left hip. He and his attorney also indicated that the Veteran had intermittent right hip pain post-service, but not on the day in March 2009 when he was evaluated by the private chiropractor. The Veteran testified that he favored the right hip over the left hip because the left hip bothered him the most. He also testified to numbness in his left leg and said that his left hip bothered him all the time. The Veteran underwent a VA examination in January 2012. The VA examiner diagnosed bilateral hip strain. The report of examination noted the Veteran's assertions of a gradual onset of left hip pain in service with no specific associated injury for which the Veteran had chiropractic treatment. Several years ago the Veteran also had gradual onset of right hip pain which he attributed to overcompensation due to left hip problems. Slight limitation of motion in each hip was recorded and the examiner noted that the Veteran was not able to perform repetitive-use testing with three repetitions. It was also noted that the Veteran's hip disorder impacted his ability to work as he had reportedly quit a housekeeping job due to back and hip pain. After a full review of the record, the January 2012 VA examiner opined that both direct service connection and secondary service connection were not warranted in this case. He stated that there was no evidence of any acute or chronic hip disorder or injury in the service treatment records. While severe hip problems could potentially cause lumbar strain due to gait disturbance, the mild lumbar strain such as the Veteran has would not be expected to result in pathology of the hips as no such logical anatomic connection exists. In a February 2012 rating decision the Veteran was granted service connection for lumbar strain and for peripheral neuropathy of the left lower extremity. Right Hip Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any current right hip disorder was incurred as a result of any established event, injury, or disease during active service, including the service-connected back disability. The Board notes that there is no competent medical evidence of a right hip disorder during service or complaints of right hip problems. Medical records associated with the claims file do not show a diagnosis of right hip strain until the January 2012 VA examination, or more than nine years after discharge from active service in August 2002. The Board notes that the passage of a significant period of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The lengthy period following service without competent medical reports of a right hip disability weighs against the Veteran's claim. Moreover, the Veteran has not provided competent medical or competent and credible lay evidence to demonstrate that any currently manifest right hip disorder was caused by or was a result of his period of service, including his service-connected back disability. Neither the January 2012 VA examiner or the Veteran's private chiropractor has posited an opinion relating any right hip manifestations to the Veteran's military service or to his service-connected back disability. Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson, 12 Vet. App. at 253. The Veteran is competent to report that he experienced right hip pain in service and since that time. However, the Board finds that his assertions are not credible in light of the contemporaneous medical reports that failed to show that the Veteran sustained any type of hip injury or other symptoms related to hip complaints until after the Veteran filed his VA claim. Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright, supra. Consequently, the Board finds that no probative weight can be assigned to the statements regarding experiencing right hip pain since service. In addition, presumptive service connection is not warranted for the Veteran's claim for service connection for a right hip disorder because there is no X-ray evidence of arthritis in the right hip within one year of the Veteran's separation from active duty in 2002. See 38 C.F.R. §§ 3.307, 3.309. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Left Hip Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any current left hip disorder or pain was incurred as a result of any established event, injury, or disease during active service, including the service-connected back disability. The Board notes that there is no medical evidence of a chronic left hip problem recorded in the Veteran's service treatment records. When he was examined for separation from service, there were no notations of any left hip complaints or abnormality. Medical records associated with the claims file do not show a diagnosis of chronic myositis left piriformis muscle until the March 2009 report of a private chiropractor, or nearly seven years after discharge from service. The Board notes that the passage of significant time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333. The service discharge findings of a normal left hip, and the lengthy period following service without a showing of a left hip disability weighs against the Veteran's claim. The Veteran is competent to report that he experienced right hip pain in service and since that time. However, the Board finds that his assertions are not credible in light of the contemporaneous medical reports that failed to show that the Veteran sustained any type of hip injury or other symptoms related to hip complaints until after the Veteran filed his VA claim. Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright, supra. Consequently, the Board finds that no probative weight can be assigned to the statements regarding experiencing left hip pain since service. Moreover, the Board finds that the most probative evidence of record shows that the Veteran's currently manifest left hip complaints are not proximately due to or aggravated by service or a service-connected disability. Moreover, arthritis of the left hip is not demonstrated by X-ray evidence within one year of discharge from active duty. In this regard, the Board observes that the January 2012 VA examiner opined that it was less likely as not that the Veteran's left hip condition was caused by his service-connected lumbar strain or that lumbar strain had aggravated the left hip condition beyond its normal progression, noting that the Veteran's mild lumbar strain would not be expected to result in pathology of the hips because that there was no such logical anatomical connection. This opinion was based on a thorough examination and a full review of the record. Hence, the Board has accorded it significant probative value. In contrast, the report of the private chiropractor, Dr. L.E.D., concluded that there was a relationship between the Veteran's current lumbar strain and his left hip disorder because he believed the Veteran injured his piriformis muscle at the same time as he injured his back in service. However, as detailed above, there are no notations of injury to the hips or the left piriformis muscle in the Veteran's service treatment reports. Since Dr. L.E.D.'s opinion was based on an inaccurate factual background, the Board has accorded it minimal probative value. Consequently, for the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right hip disorder, including secondary to service-connected back disability, is denied. Service connection for a left hip disorder, including secondary to service-connected back disability, is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs