Citation Nr: 1308803 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-46 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for degenerative joint disease of the left hip. 3. Entitlement to service connection for radiculopathy of the left leg as secondary to a lumbar spine and left hip disability. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1958 to February 1962. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied service connection for degenerative disc disease of the lumbar spine, radiculopathy of the left leg (claimed as a left leg injury), and degenerative joint disease of the left hip. FINDINGS OF FACT 1. Degenerative disc disease of the lumbar spine was not manifest in service, was not manifest within one year of separation and is not related to service. 2. Degenerative joint disease of the left hip was not manifest in service, was not manifest within one year of separation and is not related to service. 3. Radiculopathy of the left leg is not shown to be etiologically related to or aggravated by service connected disability, or active military service. CONCLUSIONS OF LAW 1. Degenerative disc disease of the lumbar spine was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Degenerative joint disease of the left hip was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for radiculopathy of the left leg, including as secondary to service-connected disability, are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided notice to the Veteran in an October 2008 letter, prior to the date of the issuance of the appealed March 2009 rating decision. The October 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports various VA examinations to include a recent June 2011 VA examination. The June 2011 examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf. The Board finds that no additional RO action to further develop the record on the claim is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 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. 2009). 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"). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he has current low back, left hip and left leg radiculopathy disabilities that are related to an in-service injury he sustained when parachuting in service which resulted in him falling out of a tree and landing on his side. Service treatment records reflect that in May 1960, the Veteran sustained an injury to his left hip while climbing out of a tree following a parachute jump. Following landing in a tree, the Veteran attempted to jump to the ground and in doing so landed hard on a canteen just over his left iliac crest. X-rays were taken and were negative for fracture. The diagnosis was contusion of the left iliac crest. A follow-up examination 3 days later noted that the treating physician felt that the Veteran would gradually get over this contusion and return to active duty. Subsequent service treatments records to include the Veteran's December 1961 separation examination report are negative for treatments, complaints or diagnoses related to a left hip or back disability. VA outpatient treatment records show that the Veteran complained of low back pain in December 2006. A contemporaneous x-ray revealed multilevel degenerative disc disease of the lumbar spine but no evidence of acute fracture-dislocation of the left hip. In a September 2008 letter, a private physician noted that the Veteran presented with complaints of low back pain with associated pain in the left buttock and left leg. Ultimately, the Veteran related a 20 year history of various symptomatology. This places on onset of symptomatology to the late 1980s. The Veteran underwent a VA examination in January 2009. He presented with complaints of lower back and left leg/hip pain that he believed resulted from a parachute jump he performed in 1960. X-rays revealed progressive degenerative osteoarthritis changes of the left hip and degenerative changes of the lumbar spine. The diagnosis was lumbar degenerative disc disease, left lumbar radiculopathy and left hip degenerative joint disease. In a March 2009 addendum, the January 2009 VA examiner opined that the Veteran's left hip and lumbar conditions were less likely than not due to his military service to include the incident in May 1960. He noted that the medical records showed no fracture on x-ray and the diagnosis at the time was iliac crest contusions with no complaints of lumbar spine pain. The examiner noted that the iliac crest is not part of the hip joint. The examiner also noted that the Veteran's injury had resolved and that he was improving on follow-up appointments after the injury. He concluded that if the injury was severe enough to cause degenerative joint disease of the hip or degenerative disc disease of the lumbar spine, he would have been in much more severe pain. In an August 2009 letter, a private physician noted that the Veteran presented with progressive arthritis of the left hip. The physician noted that "apparently" the Veteran sustained a parachute jump injury resulting in direct impact on to the ground to the lower left extremity. He indicated that he reviewed the Veteran's chart which included x-rays at the time of the injury which were negative for fracture and or dislocation. The physician opined that after a review of the chart and an examination of the Veteran that certainly an impact of this capacity "could have resulted in an injury to the cartilaginous surface of the hip joint that would be undetectable by x-ray at that point in time which eventually could lead to arthritic changes". He concluded that "obviously with a 50 year interval of time, it is unclear that there can be a direct correlation, but it is certainly plausible". The Veteran underwent a VA examination in May 2011 for peripheral nerves. He presented with complaints of low back pain that radiated down to his leg. He also had numbness and tingling in his back. There was evidence of neuropathy or radiculopathy on clinical examination or electrophysiologic testing. The examiner concluded that it was less likely than not that the Veteran's left hip lumbar conditions were due to his military service related incident in 1960. The Veteran underwent a VA examination in June 2011 for his low back and left hip conditions. The examiner noted that aside from the May 1960 parachute jumping injury, there was no other documented treatment related to the Veteran's claimed hip condition in service. It was noted that as a result of the increased pain, the Veteran underwent a left total hip replacement in March 2011. The Veteran also reported that he was unsure of when his low back pain started. However, he indicated that his back pain had started about 10 years ago and had worsened over time. He presented with complaints of tingling and numbness to his left foot at times. The diagnosis was lumbar spondylosis and left hip strain status post left total hip replacement. The examiner indicated that based on the Veteran's history, physical examination and imaging studies, his current low back and left hip conditions were not at least as likely as not a result of his military service. He noted that the Veteran sustained a contusion of the left iliac crest on May 3, 1960 while in service. He was seen again on May 6, 1960 and was improving. Additionally, there was no other documented persistent pain or treatment of this condition in his service treatment records. The Veteran also reported that his left hip pain had began 15 years ago and had worsened to the point where he a underwent a total hip replacement. The examiner noted that the joint space of his left hip was maintained on the December 2006 left hip x-ray but there was evidence of progressive degenerative osteoarthritis changes with a narrow joint space on the January 2009 x-rays. Based on this information, his left osteoarthritis was most likely the result of aging. The Veteran also had a left iliac crest contusion which was not part of the hip joint. The examiner noted that a contusion of the left iliac crest typically resolved in a very short period of time. Additionally, there was no documented injury or treatment related to his claimed low back condition. Therefore, his current low back condition was not related to service as aging played a significant role in causing degenerative changes in the lumbar spine. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a low back disability, a left hip disability and radiculopathy of the left leg is not warranted. The Board notes that there is a question of whether the Veteran has a current disability of radiculopathy of the left leg as the January 2009 found that the Veteran had left lumbar radiculopathy while the May 2011 VA examiner determined that there was no evidence of neuropathy or radiculopathy on clinical examination or electrophysiologic testing. When affording the Veteran the benefit of the doubt, the Board finds that the Veteran has current radiculopathy of the left leg. Accordingly, there are current diagnoses of lumbar degenerative disc disease, left lumbar radiculopathy and left hip degenerative joint disease; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Initially, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this instance however, service connection for arthritis on a presumptive basis is not warranted as the first evidence of arthritis of the lumbar is the December 2006 x-ray report and the first evidence of arthritis of the left hip is the January 2009 x-ray report. The record does not show manifestations of arthritis within one year of the Veteran's service separation. Accordingly, service connection for arthritis on a presumptive basis is not warranted. With regard to service connection on a direct basis for the Veteran's left hip and low back disabilities, the Board notes that the Veteran's service treatment records demonstrate complaints of left hip pain after his May 1960 paratrooping accident which resulted in a diagnosis of a contusion of the left iliac crest. The service treatment records, however, were negative for any or diagnoses of any chronic hip or lumbar back disorders as the hip and back complaints were medically addressed in service, and appear to have been of an acute and transitory nature. Significantly, a follow-up examination 3 days later noted that the treating physician felt that the Veteran would gradually get over this contusion and return to active duty and the Veteran's December 1961 separation examination was negative for treatments, complaints or diagnoses related to a left hip or back disability. While the Veteran had an in-service parachute injury, there are no clinical findings or diagnoses of lumbar back or left hip disabilities until many years after service. The first post-service evidence of a lumbar spine disability was the December 2006 diagnosis of degenerative disc disease of the lumbar spine and the first post-service evidence of a left hip disability was the January 2009 diagnosis of left hip degenerative joint disease. To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board does not find the Veteran to be credible with regard to any assertions that he has had symptoms of these disabilities since service. While the Veteran's representative in a May 2012 correspondence noted that the Veteran had back and hip complaints that progressed in severity since service, his separation examination report is negative for any treatment, complaint, or diagnosis pertinent to the low back, left leg or left hip. Moreover, during treatment in September 2008 and on his VA examination in June 2011, the Veteran reported an onset of back and hip complaints decades following service. This documented medical history is in conflict with his representative's more current assertions that his current symptoms have continued since service. The Board places greater probative weight on the history reported in September 2008 and on his VA examination in June 2011 as such history was obtained in conjunction with treatment versus in connection with a pending claim for compensation benefits. Furthermore, the history reported in September 2008 and June 2011 is consistent with most recent treatment records which place the onset of symptoms well after service. As the Veteran was not diagnosed with a low back and left hip disability until many years after service and there was a significant period between his service injury and his post-service complaints where the medical record was silent for complaints of a back or hip disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Having found that there is no credible evidence of a continuity of symptomatology since service, the Board notes that the relationship between his left hip and low back disabilities and service will turn on the conflicting medical opinions of record addressing the possibility of such a relationship. As noted above, in an August 2009 letter, a private physician concluded that the Veteran's in-service injury "could have resulted in an injury to the cartilaginous surface of the hip joint that would be undetectable by x-ray at that point in time which eventually could lead to arthritic changes". Conversely, the June 2011 VA examiner specifically found that the Veteran's current low back and left hip conditions were less likely than not a result of his military service. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the June 2011 VA examiner's opinion to be the most probative. Regarding the August 2009 letter of the private physician which indicated that the Veteran's in-service injury "could have resulted in an injury to the cartilaginous surface of the hip joint that would be undetectable by x-ray at that point in time which eventually could lead to arthritic changes", the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Additionally, while the August 2009 letter related the Veteran's left hip disability to service, no rationale was provided for this opinion and the physician did not provide any specific evidentiary or medical basis for the opinion. Significantly, the treating physician also noted that with a 50 year interval of time, it is unclear that there can be a direct correlation between the in-service injury and his current disabilities. In contrast, the June 2011 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's claimed left hip and low back disabilities were not related to the Veteran's service. Significantly, the examiner noted that that the Veteran's osteoarthritis was most likely the result of aging as the joint space of his left hip was maintained on the December 2006 left hip x-ray but there was evidence of progressive degenerative osteoarthritis changes with a narrow joint space on the January 2009 x-rays. The examiner also noted that the Veteran also had a left iliac crest contusion which was not part of the hip joint and that a contusion of the left iliac crest typically resolved in a very short period of time. For these reasons the Board finds the June 2011 VA examiner's assessment to be the most probative. Given that the most probative opinion is against a finding of a relationship between a left hip and low back disability and service, the Board finds that service connection is not warranted. Regarding the Veteran's claimed left leg radiculopathy disability, the Veteran contends that this resulted from his low back and left hip disabilities. However, as discussed above, service connection has not been established for a low back or a left hip disability as the most probative opinion is against a finding of a relationship between these disabilities and service. As such, service connection may not be established for left leg radiculopathy, as secondary to a service-connected low back or left hip disability, as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In addition, there is simply no competent, probative, medical evidence or opinion even suggesting a relationship between any left leg radiculopathy and service and neither the Veteran nor his representative has identified, presented, or alluded to the existence of any such medical evidence or opinion. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements and the statements of his representative in which they asserted their belief that the Veteran's claimed left hip, low back and left leg radiculopathy are related to service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons are generally not competent to opine as to medical etiology or render medical opinions. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to indentify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer."). That is, the Veteran is competent to report that he has left hip, low back and left leg symptoms; however, he is not competent to state that his left hip, low back and left leg disabilities are a result of his in-service injury or that his left leg radiculopathy is a result of his low back or left hip disability. Moreover, as noted above, the Board has found the Veteran's reports of a continuity of symptoms since service to lack credibility. Accordingly, the Board has placed greater probative weight on the conclusions reached by the VA examiner, who, as a medical professional, is competent to render opinions regarding medical matters. As the preponderance of the evidence is against the Veteran's claims, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is denied. Entitlement to service connection for degenerative joint disease of the left hip is denied. Entitlement to service connection for radiculopathy of the left leg as secondary to a lumbar spine and left hip disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs