Citation Nr: 1307241 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-40 899 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a low back disability, to include secondary to service-connected chondromalacia of the right and left patella. 2. Entitlement to service connection for a right hip disability, to include secondary to service-connected chondromalacia of the right and left patella. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from August 1990 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the RO which, in part, denied the benefits sought on appeal. A hearing before the undersigned at the RO was held in October 2012. FINDING OF FACT The preponderance of the competent medical evidence is against finding that a low back or right hip disability was present in service, or is otherwise causally or etiologically related to, or aggravated by his service-connected bilateral knee disability. CONCLUSIONS OF LAW 1. The Veteran does not have a low back disability due to disease or injury which was incurred in or aggravated by military service, nor is any claimed disability proximately due to or aggravated by the service-connected bilateral patella chondromalacia. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The Veteran does not have a right hip disability due to disease or injury which was incurred in or aggravated by military service, nor is any claimed disability proximately due to or aggravated by the service-connected bilateral patella chondromalacia. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in November 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA and private medical records identified by the Veteran have been obtained and associated with the claims file. The Veteran was also examined by VA during the pendency of this appeal and testified at a hearing before the undersigned at the RO in October 2012. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. The Veteran was also afforded a hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully identified the issues on appeal and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Travel Board hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that adjudication of the claims can proceed based on the current record. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of such 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, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Factual Background & Analysis The Veteran contends that service connection should be established for a low back and right hip disability secondary to his service-connected bilateral chondromalacia or, in the alternative, that his current disabilities are due to the physical demands of military service, including the numerous parachute jumps he made during service. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Concerning the Veteran's contentions, while his is competent to provide evidence regarding his observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) [it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F. 3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. Historically, the STRs are completely silent for any complaints, treatment, abnormalities or diagnosis for any low back or right hip problems in service. In fact, the Veteran specifically denied any history of back pain, arthritis, rheumatism,, bursitis, lameness or, swollen or painful joints on a Report of Medical History for separation from service in January 1995, and no pertinent abnormalities were noted on examination at that time. The Veteran's spine and musculoskeletal system was normal on examination. Additionally, the Veteran made no mention of any low back or right hip problems on his initial VA compensation claim, received in February 1995, or on a subsequent claim received in April 1995. While the Veteran did report a history of constant "back pain" when examined by VA in April 1995, he specifically identified it as involving the thoracic area radiating into his chest. Moreover, examination of the thoracic spine was entirely within normal limits. The Veteran did not mention any pain or symptoms involving his lower back or right hip, nor were any pertinent abnormalities noted on examination. Private chiropractic records received in April 2009, showed that the Veteran was seen in April 2003, primarily for pain in his right arm and neck (cervical spine). He also reported pain in his lower back in the mornings and said that his "hip and pelvis area goes out a couple of times a year." The Veteran reported that he walked a lot and had to wear a lot on his belt. Other than a history of having been thrown from a horse a few times, the Veteran did not report any prior injuries or trauma to his lower back or right hip, and no pertinent abnormalities referable to either area was noted. Chiropractic notes in June 2003, showed that the Veteran was seen for a dull pain in the lumbar sacral area after picking up drywall the previous day, and reported that he initially injured his lumbar spine when he fell from a ladder a week earlier. In June 2004, the Veteran was seen for increased pain in his upper and lower back radiating into his shoulders and legs after he slipped and fell on wet metal stairs at work. He reported "cracking, popping and throbbing pain in his lower back and weakness in his legs, and said that the cracking and popping seemed to come from the right side of the spine. The Veteran described a radiating, stabbing pain in the right inguinal area, shooting pains down his leg, and a hot, radiating pain into his thighs and lower legs. Other than having been thrown off horses a few times, the Veteran made no mention of any other pertinent injuries or trauma. In a letter to the Veteran's insurance company in June 2004, the chiropractor reported that the Veteran's flat feet, low back pain and lumbar/sacral subluxation were associated with his excessive pronation of the feet and that his spinal condition was related to instability of the feet. In October 2005, the Veteran was seen for low back pain (left sacroiliac region) shooting down his leg after riding a four wheel vehicle over the weekend, and said that his pain was agitated when he went back to work. A chiropractic note, dated in December 2005, showed continued weakness on the left side and an achy pain on the left sacroiliac region. The diagnoses included subluxation, sacrum, lumbosacral sprain, low back pain and subluxation of lumbar vertebra. The Veteran was treated at a private emergency room in early April 2007, after an all terrain vehicle (ATV) fell on him when he was unloading it from a truck. His pain initially involved his back, groin, arm and leg, and he was found to have three nondisplaced rib fractures on the right side. When seen on follow-up three days later, his only complaint was back pain, primarily on the right side. A private treatment note by Dr. Bellak, dated in October 2007, showed a history of three rib fractures and injuries to his right hip and knee from the ATV accident in April 2007. In October 2009, the Veteran was examined by VA to determine the nature and etiology of his current low back and right hip complaints. The Veteran reported a gradual onset of hip pain beginning in 2004, and said that his low back pain started after his discharge from service, but that he could not give a specific date. The Veteran denied any injury to his spine and said that it was just a gradual onset that became more pronounced with time. The examiner indicated that that x-ray studies of the Veteran's hip were negative and that x-ray studies of his lumbar spine were not indicated, as the spine was asymptomatic on examination with full range of motion and no tenderness. The examiner stated that there was no diagnoses for either a hip or spine condition, therefore, no opinion could be given. Additional private medical records received in April 2011, showed that the Veteran was seen by Dr. Bellak in January 2010. At that time, the Veteran reported that he had been an MP and jumped out of planes during service, and that "after that time," he began experiencing bilateral hip pain (right greater than the left) and low back and neck pain. He said that he didn't complain about it much until recently when his pain had become more significant. In February 2010, Dr. Bellak noted that an MRI of the lumbar spine showed mild degenerative disc changes at L5-S1, with a small left paracentral disc protrusion and minimal left lateral recess stenosis. Dr. Bellak stated that the Veteran's hip and low back pain were related to degenerative changes that was as likely as not to have occurred from his military work experience as from other activities, and that he could not rule out his prior military experience as a possible cause of his degenerative joints. In August 2010, the Veteran was examined by VA to determine the nature and etiology of his current low back and right hip disabilities. The examiner indicated that the claims file was reviewed and included a detailed description of his complaints, medical history, and current findings. On examination, the Veteran had mild pes planus with no unusual shoe wear or abnormal calluses. His gait and posture was normal and there was no evidence of abnormal weight bearing. The diagnoses included early osteoarthritis of the right hip and lumbar spine facet arthrosis. The examiner concluded that it was less likely than not that the Veteran's current right hip and low back problems were related to his service-connected chondromalacia. The examiner explained that the Veteran's left hip was normal functionally and on x-ray studies, and that there was no laxity of the knees or more than mild symptoms on examination. Further, there was no evidence of chronicity of symptomatology for many years after service to associate his knee disabilities to the right hip or lower back. The examiner opined that the Veteran's current right hip and low back disabilities were more likely due to aging, and less likely related to his military service. In a letter received in November 2012, Dr. Bellak indicated that he reviewed the Veteran's STRs and noted that he was treated for "musculoskeletal issues" including foot, knee, ankle and T1-7 problems at various times during service, and opined that his current "chronic back, knee and ankle pain" were more likely than not related to injuries sustained in service. In this case, the Board finds the August 2010 VA opinion persuasive, as it was based on thorough examination of the Veteran and included detailed discussions of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current low back and right hip disabilities were not related to service and were not due to or otherwise aggravated by the service-connected bilateral knee disability. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) In contrast, the favorable private medical opinions from Dr. Bellak offered no explanation or analysis for the conclusory assessment that the Veteran's current "back" disability was related to injuries sustained in service. While Dr. Bellak noted that the Veteran was treated for various "musculoskeletal issues" in service, none of those injuries involved the Veteran's lower back or right hip. It is also significant to note, that while Dr. Bellak treated the Veteran for right hip pain shortly after the ATV accident in 2007, he made no mention of that incident, or the Veteran's other numerous post-service back injuries, nor did he offer any explanation for the fact that the Veteran specifically denied any history of low back problems or other "musculoskeletal issues" (other than his knees and feet) and was not shown to have any pertinent abnormalities at the time of his service separation examination. The Court has held that a medical opinion containing only data and conclusions is not entitled to any evidentiary weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). For the reasons discussed above, the Board finds that the favorable private medical opinion is of limited probative value and declines to assign it any evidentiary weight. The issue in this case does not involve a simple diagnosis and the Veteran is not competent to provide more than simple medical observations. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) see also Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Veteran is competent to provide information regarding his experienced symptoms, he is not a medical professional competent to offer an opinion as to the nature or etiology of any current claimed disability. Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this case, the Veteran does not claim, nor does the evidence show any complaints, treatment, abnormalities or diagnosis for any low back or right hip problems in service or until several years after service. Rather, the Veteran believes that the current disabilities on appeal were due to the cumulative effect of the physical activities of his military duties, or in the alternative, due to his service-connected bilateral knee disabilities. In this regard, however, the Veteran is not competent to offer a medical opinion concerning the nature or etiology of his current low back or right hip disabilities. Given the complete absence of any low back or right hip injuries or symptoms in service, the objective evidence of multiple low back injuries after service, and the VA medical opinion that the current disabilities are not related to service or to the service-connected bilateral knee disabilities, the Board finds that the preponderance of the competent medical evidence weighs against a favorable disposition of the Veteran's appeal. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for a low back or right hip disability. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability, to include secondary to service-connected bilateral patella chondromalacia, is denied. Service connection for a right hip disability, to include secondary to service-connected bilateral patella chondromalacia, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs