Citation Nr: 1307752 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-32 267A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a spinal disorder to include the thoracolumbar and cervical spine. 2. Entitlement to service connection for bilateral knee disorders. 3. Entitlement to service connection for a right hip disorder. 4. Entitlement to service connection for a left hip disorder. REPRESENTATION Appellant represented by: Non Commissioned Officers Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to June 2006. He served in combat in Iraq. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before a Decision Review Officer (DRO) at a hearing held in February 2009 and before the undersigned Veterans Law Judge at a videoconference hearing in January 2013. A transcript of the hearing is associated with the electronic record. At the hearing the Veteran and his representative indicated that the claim for the spine disability encompasses the entire thoracolumbar and cervical spine. January 2013 Hearing Transcript at 2, 10. A petition to reopen a previously denied claim for an earlier effective date for a grant of service connection for sleep apnea has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See January 2013 HearingTranscript at 3. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a left hip disorder, a spinal disorder and bilateral knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The balance of the evidence reflects that the Veteran's right hip disability, with X-ray findings on private orthopedic evaluation of October 2009 shown to include some degree of Cam shape of the femoral head and a slight supermedial flattening of the right femoral head, at least as likely as not began in service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, service connection is warranted for right hip disability. 38 U.S.C.A. §§ 1110, 5107, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159. 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and To Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the claim for service connection for a right hip disorder. Accordingly, even if error was committed with respect to either the duty to notify or the duty to assist as it pertains to the matter decided herein, such error was harmless and will not be further discussed. II. Service Connection Generally, applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may be granted for any disease 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). In order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may also be granted if the evidence shows that the condition was observed during service and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). VA is required to accept a combat veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the veteran's service and there no is clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Where a veteran served continuously for ninety 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 or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, supra. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the 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). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that service connection is warranted for a right hip disorder. The Veteran's DD-214 shows that his military occupational specialty was as a Cavalry Scout, with combat service in Iraq shown. Service treatment records do not show any findings of hip problems on entrance examination of February 2001, with the accompanying report of medical history negative for any history of orthopedic problems such as arthritis, rheumatism or bursitis, bone, joint or other deformity, lameness or broken bones. The January 2001 medical prescreen was also negative for these potentially pertinent orthopedic complaints and he denied having any surgery on any joints. Service treatment records are silent for any complaints regarding the right hip. However post deployment evaluations of January 2006, February 2006 and June 2006 gave some varying histories that were potentially pertinent. The January 2006 post deployment evaluation, which also confirmed combat service in Iraq from April 2005 to February 2006 gave a history negative for swollen, stiff or painful joints. However the February 2006 post deployment examination revealed he checked "yes" for swollen, stiff or painful joints, and for muscle aches during deployment. It was not made clear what joints were involved. A June 2006 post deployment examination was negative for swollen, stiff or painful joints as a current problem. However also in June 2006, he was seen for a military services physical in which complaints of joint pain and myalgias were reported. He was cleared for separation. Again the location of the joints involved was omitted. An October 2006 VA general examination primarily addressed a claimed skin disorder, but examination was noted to include normal range of motion on examination of the musculoskeletal system, with no joint tenderness, effusion or crepitus. The Veteran in his May 2008 claim cited pain in the lower joints ongoing since July 2006. At a February 2009 DRO hearing, the Veteran and his fiancée confirmed that he served as a Cavalry Scout in combat arms. He described combat duties that included assaulting cities and he was on his feet jumping up and down off vehicles at a 4 foot height. He denied receiving any treatment for the right hip at the VA. However he reported the right hip hurt when he walks. An October 2009 private orthopedic evaluation done by a Dr. C, reveals that the Veteran was seen for right hip discomfort dating back to his time in service in 2003 and 2004. The Veteran reported sitting in an armored vehicle for many hours, which brought on symptoms. He indicated that there were times he lived in the vehicle. He described a dull 2/10 pain in his groin region intermittently. This affected him occasionally when getting in and out of cars. He also reported difficulty squatting and he did not do running or any other activities as he felt this might be aggravating. He denied any prior injection therapy or surgical intervention for the right hip. Examination revealed in pertinent part some discomfort in the groin on the right at the extreme of right hip internal rotation, adduction and flexion, which was more severe than on the left. His ranges of motion for the right hip were 35 degrees internal rotation, and 50 degrees external rotation, the same as on the left side. He also had some sensitivity in the right groin, which was more than on the left. However it was not frankly tender. There was no swelling in the region. His strength to resistance was equal to that on the left. X-rays of the pelvis/right hip were shown to demonstrate a Cam shape of the femoral head with some flattening of the superomedial aspect of both sides. There did seem to be some relative lucency on the superiorlateral aspect of the femoral neck in the base of the head on the right side, exceeding that on the left. The hip joint space superiorly on the right was equal to the left at 4.5 millimeters. At the inferioromedial aspect of the right, it was about 2 millimeters as opposed to 3.5 millimeters on the left. This may be projectional in nature. There was no evidence of acute periosteal change nor lucency seen. His bone density was grossly normal. The impression rendered was right hip pain and possible right hip femoral acetabular impingement. Dr C discussed the findings with the Veteran and opined that by X-ray finding, there was some degree of Cam shape of the femoral head and a slight supermedial flattening of the right femoral head. Prior to his stint in the Armed Forces, he did not have any significant symptoms associated following this. However being in a vehicle for hours, days and weeks at a time, he developed the symptoms. Thus there does seem to be an association with his service. Dr. C discussed further options for treatment including undergoing an MR arthroscopy if he wanted to pursue this further. The option of treatment including arthroscopic or decompression surgery in the future was discussed. However at this time there was no pressing need for treatment intervention at this time as warranted for the symptoms he was experiencing. He was to give a call if he wished to further pursue having the study completed. The report of a December 2010 VA examination, pertaining to the right hip revealed the Veteran to report pain in multiple joints including the right hip. He reported military activities included carrying heavy infantry equipment on his back, jumping off of high assault vehicles, and hurting the right hip joint. He denied any medical treatment. He reported walking more than 1 block or climbing more than 1 flight of stairs caused more pain in the hip joint. He could not sit for more than 15 minutes at a time. He denied septic arthritis or other constitutional symptoms. He used no braces or splints. He had no restrictions of daily routine activities and denied incapacitating episodes. Examination revealed the right hip had 40 degree abduction, 20 degrees adduction, 100 degrees forward flexion, 30 degrees backwards extension, 40 degrees internal rotation and 50 degrees internal rotation. These were unchanged by repetitive motion. He had no evidence of inflammatory arthritis, muscle wasting or atrophy around the hip joint. X-rays of both hip joints were essentially unremarkable. The diagnosis in pertinent part was chronic sprains involving the right hip joint. The examiner opined that the current right hip condition was at least as likely as not related to active military service. However this was shown to be a typographical error, which the examiner corrected in a March 2011 addendum that stated that the sentence should read that the Veteran's bilateral hip disorders are not likely related to his active military service. The examiner gave a rationale in the December 2010 examination that there was no documentation of chronic conditions related to the right hip in active service as well as in civilian medical records immediately after service. The examiner could not comment whether the joint pain and stiffness documented in the symptom list of January 2006 are related to his hip joints. The examiner did not remark on the other symptom lists reported in the other post deployment evaluations of February 2006 or June 2006, nor did he remark on the history given of joint pain and myalgias in the June 2006 military services physical. The Veteran testified in his January 2013 Videoconference hearing that he started experiencing pain in his legs in service. He indicated he was in Iraq for the 2003 invasion up to the Syrian border. He described being in Bradley fighting vehicles and was exposed to concussions from nearby explosions while sitting on a metal set for up to 20 hours a day. He described being diagnosed with accelerated flattening of the bones of his hips which will lead to early onset of arthritis. Based on review of the evidence the Board finds that the evidence is in equipoise and affording the Veteran the benefit of the doubt, finds that service connection is warranted for a right hip disorder. The Veteran's lay contentions regarding the history of his right hip disorder reported in his written contentions and testimony at the February 2009 and January 2013 hearings are consistent with duties under combat conditions. 38 U.S.C.A. § 1154. Moreover, there is not a lengthy period of time between his combat service and the onset of right hip complaints that would tend to adversely affect his credibility. Indeed, the Board notes that there is no evidence that clearly contradicts the Veteran's history of in-service right hip problems beginning in service and continuing after service. To the contrary the medical history given in the February 2006 post deployment examination in which he answered "yes" for swollen, stiff or painful joints, and for muscle aches during deployment appears consistent with his lay history of right hip problems during of service. While there is an absence of specific documentation of a right hip injury or disorder in the service treatment records, the Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In support of his claim, the favorable opinion rendered by Dr. C in the October 2009 private orthopedic evaluation considered the Veteran's lay history of his service during combat conditions with lengthy periods of time spent in an armored vehicle in determining that the claimed right hip condition was at least as likely as not incurred in or caused by such conditions of service. This opinion was based on a clear rationale describing the right hip pathology as manifested as Cam shape of the femoral head and a slight supermedial flattening of the right femoral head, and noting that the Veteran reported symptoms only during and after such service. By contrast, the unfavorable opinion in the December 2010 VA examination failed to fully consider the Veteran's competent and credible lay statements and did not provide adequate rationale, citing the lack of medical documentation of chronic conditions related to the right hip in active service as well as in civilian medical records immediately after service as a basis for the unfavorable opinion. The examiner's review of the medical evidence also appears to have been incomplete and faulty, as the examiner only referenced the January 2006 post deployment examination, which it erroneously stated had confirmed joint pain and muscle aches, but failed to consider the additional pertinent medical evidence to include the correct records of February 2006 and June 2006 confirming complaints of joint pain and muscle aches. The examiner failed to mention the favorable findings and X-ray manifestations pertaining to the right hip shown on the 2009 private orthopedic evaluation, even though this significant evaluation report was associated with the claims file prior to the December 2010 VA examination. Therefore, the Board lends little weight to the opinion from the December 2010 VA examination. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current right hip disorder is causally or etiologically related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for a right hip disability is warranted. ORDER Entitlement to service connection for a right hip disability is granted. REMAND In regards to the remaining appellate issues of entitlement to service connection for a left hip disorder, spine disorder (to include thoracolumbar and cervical spine), and bilateral knee disorders, the Board finds that further development is necessary. The VA examination of December 2010 did not properly address Veteran's lay statements regarding onset of symptoms during combat service or his reported continuity of symptoms. As previously noted in the above decision, VA is required to accept a combat veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the veteran's service and there no is clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Further a Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy etc. See Washington, supra. The examiner also appears not to have fully examined the pertinent evidence in the claims folder as shown by the omission of pertinent evidence in STRS besides the 1/06 post deployment evaluation. Furthermore the examiner also was incorrect in describing the symptoms reported in that January 2006 evaluation. Of note the examiner stated that there was no mention of back problems in the January 2006 evaluation, when in fact he did report back pain in this evaluation (but not in the other evaluations of February 2006 or June 2006). The joint symptoms and muscle aches (or myalgias) were reported in the February 2006 post deployment examination and in a June 2006 military services physical, but the VA examiner did not discuss these findings in determining that the disorders of the spine, left hip, and bilateral knees were not related to service. Thus the thoroughness of the examiner's review of the relatively small amount of medical evidence in this claims file is questionable. Additionally, the nature of the claimed disorders is unclear, with only pain syndrome being diagnosed for the bilateral knee disorders, and chronic hip sprains of the left hip and lumbar spine diagnosed. The examiner is also noted to have diagnosed chronic sprain of the right hip (for which service connection has now been granted), with no consideration given as to the findings of the right hip joint abnormality of flattening of the femoral head diagnosed on the X-ray of the private orthopedic examination in October 2009. This suggests that further evaluation is needed to include more complete review of the pertinent evidence and more thorough musculoskeletal examination. Furthermore, the Veteran in his January 2013 videoconference hearing has described the existence of medical evidence that does not appear to be associated with the claims file or electronic record. Specifically he described having been examined by a "Mr. P" at Orthopedics Associates in Detroit and stated that this report was provided to the VA. The only private orthopedic report from is from Dr. C at Metropolitan Orthopedics Associates in Harper Woods Michigan, which is limited to evaluation of the right hip. No examination or other report from a "Mr. P" is shown to be of record. The rest of the private records pertain to other medical problems besides the claimed orthopedic issues. As such record could prove pertinent to the matters remaining on appeal, the Board finds that further attempt should be made to obtain this report. Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain and associate the report from "Mr. P" at Orthopedics Associates in Detroit that had been described by the Veteran as having been associated with the claims file (but which is not currently shown to be). This should include requesting that the Veteran furnish signed authorizations for release to the VA of this non-VA source identified. If a request for this private treatment record (or any additional treatment records) is not successful, the RO should inform the Veteran of the non-response so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2012). 2. The Veteran should be scheduled for a VA examination before an appropriate specialist regarding his claimed left hip disorder, a spinal disorder (to encompass the cervical through thoracolumbar spine) and bilateral knee disorders. The Veteran's claims file and a copy of this remand must be provided to the examiner for review. All indicated studies should be performed. All manifestations of current disability should be described in detail. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's left hip disorder, a spinal disorder (to encompass the cervical through thoracolumbar spine) and bilateral knee disorders manifested during, or as a result of, active military service, to include service under combat conditions. In addressing this matter, the examiner must consider not only the evidence shown in the service treatment records, that do include a positive history cited of back pain, joint symptoms and muscle aches (or myalgias), but also the lay history provided by the Veteran regarding the onset of symptoms consistent with combat service. A complete rationale for all opinions offered must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs