Citation Nr: 1308324 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-36 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for right hip strain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to August 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In August 2011, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. In July 2011, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Although a right hip injury occurred during service, the preponderance of the evidence is against a finding that the Veteran's present right hip disability is related to an event, injury, or disease in service. CONCLUSION OF LAW Service connection for a right hip strain is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist With respect to the Veteran's claim, 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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. Notice letters dated in December 2004 and October 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Although the Veteran was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claims were readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had complete 38 C.F.R. § 3.159(b) notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA treatment records, and private medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. Additionally, VA examinations were provided in December 2009. Finally, a Veterans Health Administration (VHA) advisory opinion was obtained in July 2011. VA has fulfilled its duty to assist. Previously, in August 2011, the Board remanded the claims for the performance of a VA examination in connection with the claim. The requested examination was performed in September 2011. The Board has reviewed the VA examination report and finds that there has been substantial compliance with the requirements articulated in the Board's prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Claim A. General Law and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Analysis The Veteran seeks service connection for a right hip disorder. He has essentially asserted that his present right hip disorder is due to an in-service injury during a basketball game. The Veteran's service treatment records are negative for any signs, symptoms, or treatment for a right hip disorder. The July 1978 separation examination report reflects that the Veteran had normal extremities. The Veteran indicated on a July 1978 Report of Medical History that he did not experience any arthritis, rheumatism, or bursitis; bone, joint or other deformity; or lameness. The Veteran further indicated in August 1978 that there had been no change in his medical condition. Post service treatment records reveal continuing complaints and treatment for a right hip disability. Specifically, findings from a private magnetic resonance imaging (MRI) in April 2002 noted bilateral avascular necrosis of the femoral heads, secondary osteoarthritis of the right hip, and evidence of an "old" bony avulsion involving the right ischium. In April 2004, the Veteran visited his local VA outpatient treatment facility for complaints of chronic right hip pain. It was reported that the Veteran was involved in a car accident two years ago, which resulted in a pelvic crush and right hip injury. The VA physician also stated that there was a question regarding a previous injury to the right hip. X-rays revealed smoothly marginated ossific or calcific density over soft tissues projecting medial to the right hip, "possibly related to [an] old trauma[,]" and a large avulsion fracture lateral aspect inferior pubic ramus, which "appear[ed] old." More recently in a September 2009 VA x-ray report, a change in the bone fragment lateral to the right ischium, likely related to a prior avulsion injury, was noted. In a January 2009 letter, S.W., the Veteran's brother, recalled that the Veteran wrote to him about experiencing a hip injury while he was on active duty. At his July 2011 Board hearing, the Veteran testified that during his military service, he was a member of the basketball team. He explained that during one of his playoff games, he injured his right hip after performing a "slam dunk." The Veteran stated that he was transported to the military hospital via ambulance and underwent a physical examination, as well as x-ray testing. He was told by the treating physician that there was no treatment for the particular injury he incurred during the basketball game, but over the years it would progressively get worse. Since that time, the Veteran has reportedly endured constant right hip problems, and has asserted that his current right hip disability is attributable to his active military service. In September 2011, the Veteran underwent a VA examination of his hip. The examiner indicated a review of the claims file and noted the Veteran's report of an in-service hip injury while playing basketball. However, the examiner did not address the relationship of this reported in-service injury, if any, to his current disability. Instead the examiner opined: First of all, there was nothing in the service medical records to indicate [the Veteran] ever complained about the right hip so this in and of itself should exclude service connection for the hip. Irrespective of that, even the motor vehicle accident in 2002 is more than likely not the cause of the hip replacement. He was diagnosed with bilateral aseptic necrosis of the hips and subsequently underwent replacement. Aseptic necrosis of the hips certainly would not be caused or a result of the military service. The likelihood, in this patient is the possibility that the alcohol consumption contributed to this condition. It is therefore my opinion that the right hip is not caused by or a result of the military service. In October 2012, a VA Chief of Orthopedic Surgery offered an advisory opinion. The examiner reviewed the medical records, including the Veteran's statements as well as the opinion of the September 2011 VA examiner. The examiner commented on the Veteran's remarks concerning his in-service accident. He noted that the 2002 X-ray report showed evidence of an old healed avulsion fracture from the right ischial ramus of the Veteran's pelvis, which would correlate with the injury that the Veteran stated he suffered while dunking a basketball while on active duty. He further noted that avascular necrosis of both hips was noted on X-rays taken in 2002, and avascular necrosis was the condition that required the Veteran's subsequent total hip replacements. The examiner opined that the Veteran's prior avulsion injury would not have lead to avascular necrosis and would not have required hip replacements. It was further indicated that the prior avulsion fracture appeared to have healed and was not the cause of the Veteran's right hip pain from 2002 and thereafter. The examiner remarked that avulsion fractures heal without treatment and do not cause avascular necrosis of the hip to occur 25 years in the future. The examiner specified that there was no other evidence in the medical record that supported an award of service connection for the Veteran's current right hip disability. He specifically opined that it was less likely than not that the Veteran's right hip injury while playing basketball in the service in 1977 was the cause of his avascular necrosis of his hips and current right hip disability. As reviewed above, medical evidence of record clearly establishes the presence of a current right hip disability for VA purposes. Also, the Board finds the Veteran's account of experiencing a right hip injury during a basketball game while on active duty to be credible, despite the lack of contemporaneous documentation in service treatment records. His accounts of being injured during a basketball game have been consistent, and the Veteran is competent to describe such an observable symptom, even as a layperson. 38 C.F.R. § 3.159(a)(2). The evidence of record therefore clearly shows an in-service trauma and a current disability. What the Veteran must still show to establish service connection for his current right hip disability is that it is related to his in-service right hip injury. A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). A Veteran is also competent to testify regarding facts or circumstances that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) ("[C]ompetent testimony is . . . limited to that which the witness has actually observe, and is within the realm of his personal knowledge"). However, findings of competency and credibility are two distinct matters, and after a careful review of the evidence, the Board finds that while the Veteran is competent to testify as to observable symptoms, like experiencing pain during a basketball game, his assertion that he experienced right hip pain since service is not credible. Significantly, although the Veteran currently asserts that he has experienced right hip symptoms continually since his in-service basketball injury, he has not always asserted a continuity of such symptoms. In fact, the record reflects that on a July 1978 Report of Medical History-completed after the in-service accident-the Veteran indicated that he did not experience any arthritis, rheumatism, or bursitis; bone, joint or other deformity; or lameness. Because the Veteran has contradicted himself, the Board finds his statements regarding a continuity of symptomatology not credible. See Pond v. West, 12 Vet. App, 341 (1999). Having found the Veteran's statements that his right hip disability has persisted since his active duty service not credible, the Board finds that service connection for right hip disability on the basis that such disability became manifest in service and persisted since is not warranted. As there is no competent and credible evidence that a right hip disability was manifested in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease. 38 C.F.R. §§ 3.307, 3.309. Regarding whether the Veteran's current right hip disability is otherwise related to his service, to include his conceded basketball injury therein, none of the medical evidence of record supports the Veteran's claim. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The September 2011 and October 2012 VA examiners reviewed the Veteran's entire claims file, including his service treatment records, and opined that the Veteran's current right hip disability was less likely than not related to his military service. In reaching this conclusion, the VA examiners noted the Veteran's assertions of an in-service right hip injury during a basketball game. They also reviewed the post-service treatment records and considered the Veteran's self-reported history. Here, the Board places great weight on the September 2011 and October 2012 VA opinions, as they were provided by a physician's assistant and a Chief of Orthopedic Surgery (who by virtue of training and experience are eminently qualified to offer these opinions), contain a complete description of the right hip disability, include rationales for the opinions provided, and reflect familiarity with the clinical data and the Veteran's complete medical history. As for the statements from the Veteran relating his current right hip disability to his experiences in service, while he may be competent to testify as to the symptoms he experiences (such as pain), there are multiple intervening possible etiologies for his right hip pain (such as a car accident and avascular necrosis). It is beyond his competence as a layperson to ascribe his current disorder to any of these particular etiologies. The Veteran is a layperson and lacks the training to opine regarding medical etiology in this case; differentiating between multiple etiologies is a question that is medical in nature and may not be resolved by mere lay observation. See 38 C.F.R. § 3.159(a)(2). Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's current right hip disability and his service, to include his basketball injury therein. Accordingly, the appeal seeking service connection for a right hip disability must be denied. ORDER Entitlement to service connection for right hip strain is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs