Citation Nr: 1306099	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  09-39 428	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected degenerative joint disease of the cervical spine.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran served on active duty from February 1985 to August 1987.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The claim was remanded by the Board in May 2012 for additional development.  


FINDING OF FACT

A current diagnosis of a bilateral hip disorder is not of record.


CONCLUSION OF LAW

A bilateral hip disorder was not incurred in or aggravated by active military service, and is not proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

The RO's December 2007 letter advised the Veteran of the foregoing elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date.  See Dingess/Hartman, 19 Vet. App. at 486.  Notice advising the Veteran of what evidence was necessary to support a claim for service connection on a secondary basis was provided in a December 2011 letter and the claim was readjudicated in a March 2012 supplemental statement of the case.  Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim is sufficient to cure a timing defect).  

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's available service treatment records, as well as VA and identified private medical treatment records, have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There has been substantial compliance with the Board's May 2012 remand as the Veteran's records from the Social Security Administration (SSA) were associated with the claims folder.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Board acknowledges that the March 2012 VA examiner reported that the medical records department at Darnall Army Medical Center where the Veteran reported treatment following a motorcycle accident was contacted and they indicated that records from that time period would have been forwarded from their facility.  The examiner further noted that additional calls to the storage facility in St. Louis, Missouri, had revealed that if records were in storage, they could be obtained from the National Personnel Records Center.  The examiner also noted that this information was provided to the Veteran so that he can pursue obtaining records and that the Veteran was provided a phone number and web site specifics.  

The majority of the Veteran's service treatment records are not available.  See March 2008 memorandum.  As the Board has determined that the Veteran's account of an in-service motorcycle accident is both competent and credible as it relates to the claim for service connection for a bilateral hip disorder, there is no need to remand for additional efforts to obtain any outstanding service treatment records.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. 

Service connection may be established for disability resulting from personal injury incurred in or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis 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.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Veteran seeks entitlement to service connection for a bilateral hip disorder, which he contends is the result of a 1986 in-service motorcycle accident.  In the alternative, he asserts that a bilateral hip disorder is the result of his service-connected degenerative joint disease of the cervical spine.  

The only available service treatment records are several laboratory reports, a radiologic consultation request/report, and reports of medical examination and history conducted in July 1987 in conjunction with the Veteran's discharge from active service.  Although the Veteran reported fracturing his cervical spine in 1986 as a result of a motorcycle accident, and complained of problems with his neck and wrist in a July 1987 report of medical history, he did not report any problems with his hips.  In addition, the clinical evaluation in July 1987 of his lower extremities was normal and there were no notations made by the examiner related to his hips.  

Given the unavailability of the Veteran's service treatment records, and for the purpose of this claim only, the Board finds that the Veteran's statements are competent evidence is competent and credible evidence of an in-service motorcycle accident.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  

Post-service medical evidence of record reveals that the Veteran has been seen with complained of bilateral hip pain while seeking treatment at Family Chiropractic Center in September 2008, February 2009 and October 2009.  No specific diagnoses were reported in conjunction with these complaints, nor was any opinion on the etiology of the Veteran's complaints provided.  VA treatment records and records obtained from the SSA are devoid of reference to complaint of, or treatment for, any problems with the Veteran's hips.  

The Veteran underwent a VA examination in March 2012, at which time his claims folder was available for review.  A history was obtained from the Veteran, which included his report of the in-service motorcycle accident, and a detailed physical examination was conducted.  The examiner reported that bilateral x-rays of the Veteran's hips obtained on March 13, 2012 were negative.  The examiner concluded that "careful review of all available medical records, Veteran's history, and examination including x-rays of the hips fail to establish an objective medical condition of the hips.  Therefore, it is less likely than not that the Veteran has a hip condition incurred in the service or secondary to his service-connected cervical spine degenerative joint disease."  

The preponderance of the evidence of record is against the claim for service connection for a bilateral hip disorder.  A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  The Board acknowledges the Veteran's assertions and the evidence indicating he was seen with complaints of bilateral hip pain.  However, without evidence of a current disability, however, service connection for a bilateral hip disorder is not warranted on either a direct or secondary basis.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (noting that there must be a diagnosis of an underlying disability to establish a claim for service connection).  

As the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hip disorder, the statutory provisions regarding resolution of reasonable doubt are not applicable.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

ORDER

Service connection for a bilateral hip disorder is denied.  



____________________________________________
JOY A. MCDONALD  
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs