Citation Nr: 1307724 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-06 875A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Roanoke, Virginia. While the Veteran had initially requested a hearing before a Veterans Law Judge, the Veteran withdrew his request in May 2012. Therefore, no hearing was held in this matter. In September 2012, the Board remanded this claim for additional development. FINDING OF FACT There is no current diagnosis of a right hip disorder. CONCLUSION OF LAW A right hip disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). By letter dated June 2007, the Veteran was notified of the information and evidence necessary to substantiate his claim. VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. VA satisfied the notice requirements under Dingess in the June 2007 letter, wherein VA informed the Veteran as to the type of evidence necessary to establish a disability rating or effective date. Adequate notice has been provided to the Veteran prior to the transfer and certification of his case to the Board, and thus, compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been met. Nonetheless, in light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded a VA examination in October 2012. This examination addressed the nature and etiology of his claimed hip disorder with the examiner providing etiology opinions based upon a claims file review and consideration of the Veteran's reported medical history. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria for Service Connection Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in the "Virtual VA" electronic records storage system. At present, there are no pertinent documents in Virtual VA. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background and Analysis The Veteran is claiming entitlement to service connection for a right hip disorder. He asserts that as a result of a parachute injury in service, he has continued pain and stiffness in his right hip. The service treatment records (STRs) have been reviewed and there is no indication of any diagnosed hip condition. There is documentation that the Veteran was injured in a parachute accident in 1975, but no complaints of hip pain following this accident were noted. Additionally, on service separation examination and report of medical history in March 1977, there were no complaints, treatment, or diagnoses of a hip condition. Post-service records were also reviewed, but the objective medical evidence does not reveal a current diagnosis of a hip disability. In a September 2008 statement from the Veteran, he reported numbness in his right leg and hip, which he stated that two of his private physicians attribute to his spine being compressed from the parachute injury in service. The Board notes that a March 2008 record from a private physician indicated that the Veteran's hip pain was probably sciatica all along and is related to his parachute accident. An August 2008 record from another private physician noted a history of discomfort in the right anterior thigh after a parachute injury; however, an examination of the Veteran's thigh revealed that his legs were nontender to palpation, including a thorough palpation of the right anterior thigh and hip. There was no instability or spasticity in both legs and there was normal strength in his bilateral hip flexors and hip extensors. The physician's assessment was right anterior thigh discomfort, and possible sciatica pain. The Board notes here that the Veteran is currently service-connected for sciatica pain (neurological symptoms in his right lower extremity). On the basis of the Veteran's complaints of pain and the physician's opinion that the Veteran's hip pain was sciatica caused by his service-connected back disability, the Board ordered a VA examination and one was provided in October 2012. During the examination, the Veteran reported that he thinks this condition started in 1975 after a bad parachute accident and he is currently taking Motrin every other day as needed for the pain. He stated that his discomfort is made worse by standing in one place, walking too far, and lifting. He reported that flare-ups with weight-bearing activities impact the function of his hip and/or thigh. Range of motion studies revealed no limitation in range of motion of the hip and no objective evidence of painful motion. Additionally, the examiner noted that abduction was not lost beyond 10 degrees and adduction was not limited such that the Veteran cannot cross his legs, nor is rotation limited such that the Veteran cannot toe-out more than 15 degrees. Further, the Veteran was able to perform repetitive-use testing with no limitation in range of motion. The examiner noted no functional loss of the hip and thigh as well as no ankylosis of either hip joint. Muscle strength was normal. The examiner did note that the Veteran uses a cane occasionally when walking. Imaging studies of the hip were performed and revealed no other significant findings. On examination, the Veteran was diagnosed with sciatica symptoms to the right thigh since the early 1980s. The examiner noted that the Veteran has radiculopathy characterized by intermittent back pain which radiates down the lateral aspect of buttock to lateral right thigh and stops just above the knee. The radicular pain is sometimes dull and sometimes sharp intermittent shooting pain, rated 7/10 and lasting for 20-30 minutes. The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. In support of his opinion, the examiner stated that the Veteran does not have a diagnosed hip or thigh disorder, but instead is diagnosed with sciatica, which is related to the Veteran's back condition and is characterized by pain into his right thigh area. The examiner further reiterated that there is no intrinsic hip or thigh disorder noted on this examination nor on the radiographs. Here, there is no diagnosis of a hip disorder in service, including on the service separation examination. Further, while there is post-service evidence of hip pain, this pain has been diagnosed as sciatica, for which the Veteran is already service-connected. In addition, the October 2012 VA examination report, which included diagnostic imaging studies and range of motion studies, revealed no diagnosis of a hip or thigh disorder. The Veteran is also not currently receiving treatment for any diagnosed disability of the hip. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statutes governing Veteran's benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). There is no current diagnosis of a hip disability. In addition, the Board notes that the combat presumptions, assuming they are applicable (see the Veteran's service personnel records which reveal receipt of the Navy Commendation Medal and a list of his combat history expeditions), cannot substitute for competent evidence linking a current disorder to service. While 38 U.S.C.A. § 1154(b) relaxes the evidentiary burden for a combat Veteran, it is important to note to what section 1154(b) pertains. "Section 1154(b) deals with the question whether a particular disease or injury was incurred or aggravated in service - that is, what happened then - not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required." Caluza v. Brown, 7 Vet. App. 498, 507 (1995). The Board has also considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed a claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. The Board again notes, however, that no evidence of record reflects the presence of a diagnosed disability during that time frame. Thus, in the absence of a current diagnosis, the other elements of service connection for the claim need not be addressed and the claim for service connection for a right hip disorder must be denied. In reaching this conclusion, the Board has considered the Veteran's assertions of hip pain since service, in addition to a buddy statement which stated that she recalled the Veteran complaining of hip soreness following a parachute injury. However, complaints of pain alone are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). Further, the Veteran's opinion alone cannot create the link between his current symptoms and experiences during service; that is a medical question, and requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir, 2007). In sum, because of the absence of a current diagnosis of a hip disability and the negative medical opinion, the Board finds that the evidence is against a grant of service connection for a right hip disorder. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER The appeal for service connection for right hip disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs