Citation Nr: 1309335 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 05-22 151 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a hip disorder, to include as secondary to the residuals of a partial amputation of a left great toe. 2. Entitlement to service connection for a back disorder, to include as secondary to the residuals of a partial amputation of a left great toe. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from November 1966 to October 1968. The instant claims initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2005, which denied service connection for hip and back conditions. In April 2006, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the RO before the undersigned Veterans Law Judge sitting in Washington, D.C. A transcript of this hearing is in the Veteran's claims folder. The Board has remanded the Veteran's claim on three occasions, most recently in July 2012, for additional development. The directed development has now been completed, and because the Board's orders have fully been complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's hip and back disabilities began during or were otherwise caused by his military service; or were secondary to or aggravated by his service connected left toe disability. CONCLUSIONS OF LAW 1. Criteria for service connection for a hip disorder, to include as secondary to the residuals of a partial amputation of a left great toe, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. Criteria for service connection for a back disorder, to include as secondary to the residuals of a partial amputation of a left great toe, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may also be found in certain instances in which a service-connected disability aggravates another condition. When aggravation of a veteran's nonservice-connected condition is proximately due to, or the result of, a service-connected condition, the veteran shall be compensated for the degree of disability - but only that degree - over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is seeking service connection for hip and back disabilities which he believes are secondary to, or were aggravated by, his service connected left foot disability. Service treatment records reveal that the Veteran partially amputated the large toe on his left foot with a lawnmower in 1959, prior to service. A February 2012 rating decision granted service connection for hammertoes of the Veteran's left foot after a medical opinion concluded that his left foot disability, which existed prior to service, was aggravated by his military service. The medical evidence has established that the Veteran does currently have back and hip disabilities. For example, x-rays of the Veteran's left hip from September 2003 show minimal degenerative changes; and x-rays of his back in February 2004 show narrowing disc spaces. Additionally, in March 2004, a CT scan showed scoliosis, as well as fragmentation of the facets at several levels. Given the presence of current disabilities, it must be determined whether the Veteran's back and hip disabilities either began during or were otherwise caused by the Veteran's military service, or whether they were either secondary to or aggravated by his service connected lower extremity disability. Direct service connection has not been specifically alleged with regard to the Veteran's hip or back; and there is no medical opinion that has been advanced even suggesting that a current, chronic hip or back disability either began during or was otherwise caused by the Veteran's military service. The Veteran's spine was found to be normal at his enlistment physical. Service treatment records do not show any complaints of or treatment for hip or back problems, with the lone exception of a single treatment record in October 1967, which indicated that a car fell and injured the Veteran's back. However, the x-rays that were taken following that incident were of the Veteran's ribs, not his back; and the x-ray report stated that the injury was to the Veteran's left side with no mention of the back being made. Moreover, the service treatment report found no external evidence of any injury and no follow-up treatment was described. The Veteran's separation physical found his spine to be normal and he specifically denied any back trouble of any kind on his medical history survey completed in conjunction with his separation physical. Following service, the Veteran did not file a claim for a back or hip disability for more than 30 years, despite filing a claim for service connection for three disabilities in 1990. He filed for service connection for back and hip pain in March 2005, nearly 40 years after separation, alleging that his toe had been aggravated by service and that this worsened lower extremity disability had caused a balance problem which had thrown off his back and caused severe hip pain. The first post service evidence of back or hip treatment appeared in September 1985 when the Veteran straightened up suddenly after kneeling down on his caterpillar. He was not able to work after that and went home for the day. In June 1998, x-rays of the hip and pelvis were unremarkable. In July 1998 the Veteran was seen with complaints of back pain; and imaging showed mild degenerative change of the upper spine. Imaging in 2003 showed degenerative changes in the thoracic spine. To summarize, service treatment records did not show the presence of any chronic back or hip disabilities in service, to include on examination at separation. The Veteran did not receive back or hip treatment for more than a decade after service, and no medical opinion has been advanced even suggesting that the Veteran's back and/or hip disabilities either began during or were otherwise caused by the Veteran's military service. The Veteran similarly has not made such an assertion. As such, the criteria for direct service connection have not been met, and the Veteran's claim is denied on that basis. The issue in this case therefore becomes whether the Veteran's service connected left foot disability caused or aggravated his hip or back disabilities. At a hearing before the Board in April 2006, the Veteran asserted that VA doctors had explained to him that his hip and back problems were related to weight transfer problems in his foot. Generally, a lay person's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (veteran's statement that his physician told him that he "most probably" had diabetes at time of his discharge from service was not sufficient medical evidence to establish service connection for diabetes). However, lay evidence may be considered competent to establish a diagnosis when that lay person is reporting a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran is not reporting a contemporary diagnosis, but rather is trying to relate what medical professionals had told him. The Board has obtained extensive private and VA treatment records for the Veteran, including statements from the medical professionals to whom the Veteran was referring. Having fully reviewed this evidence, the Board will defer to the actual comments from the medical professionals themselves, rather than relying on the Veteran's paraphrasing of what he was allegedly told, as the Board considers the statements of the medical professionals themselves to be a more accurate expression of their beliefs than a statement by someone who is seeking disability benefits recalling what they had expressed in a past conversation. Nevertheless, as the Veteran has asserted, several medical professionals have suggested the possibility of a link between his service connected left foot disability and his back and hip disabilities. For example, in December 1994, the Veteran presented with complaints that his hips and joints hurt, and the doctor stated that it was "probably an arthritic coming from the deformity in his foot and stuff." Likewise, in February 2004, a VA nurse suggested that the Veteran's back problems were influenced by his foot problems. Unfortunately, while both statements suggest the possibility that the Veteran's service connected disability caused or aggravated his back and/or hip disabilities, neither statement is considered to be sufficiently probative to establish that service connection is warranted for either a back or hip disability. Specifically, the doctor in 1994 did not address which foot problem he was referring to, which is relevant given that following service the Veteran discharged a shotgun into his right foot which has caused ongoing problems. Additionally, the doctor failed to clarify what "stuff" was in reference to. With regard to the December 2004 statement, the nurse failed to provide any rationale for her statement, and the statement did not appear to take into account a number of other potential risk factors for hip and back problems, including the Veteran's obesity (weighing more than 300 pounds) and the post-service gunshot wound to his right foot. The statement also failed to address a number of post-service back and hip injuries. For example, in 1985, the Veteran was seen for complaints of back pain after he straightened up suddenly after kneeling down on his caterpillar; in June 1998, he complained of left hip pain after catching himself as he was about to fall when a chair he was sitting down in moved; in July 1998, the Veteran again complained of left hip pain after shooting skeet out of the front seat of a van; and, in April 2002, the Veteran was seen for two injuries to his back after a horse had knocked him down, and a cow had subsequently hit him against a wall on his tail bone. Extensive VA treatment records have been reviewed, but do not address the etiology of the Veteran's hip or back disabilities beyond the records specifically discussed above. As such, given the uncertainty of the medical evidence of record, the Board remanded the Veteran's claim to obtain a medical opinion of record. In July 2012, the Veteran underwent a VA examination. He reported first noticing back and hip pain in the early 1970s, and asserted that his hip symptoms appeared in conjunction with the back symptoms. He described a consistent aching pain in his mid lower back and adjacent muscles, and stated that he had an operation in April 2009 to correct a leg length discrepancy and to replace his right hip. Following a physical examination and a review of the claims file, the examiner concluded that it was less likely than not that the Veteran's hip or back injuries were incurred in service or were caused by the in-service injury. The examiner pointed out that additional non-service related risk factors were identified within the treatment records that could contribute to or aggravate the Veteran's hip disability. These risk factors included a close range shotgun injury to the right foot in September 1979; morbid obesity; leg length discrepancy that was discovered at the April 2004 hip surgery (right leg was shorter than the left by 9/16 of an inch); two post service injuries to the Veteran's back, including in 2002 when a cow hit the Veteran against a wall, striking his tailbone and across the SI joint region, and in 1998 when the Veteran strained his left hip when he caught himself as he was sitting down in a chair that moved. The examiner explained that all of these risk factors could contribute to the Veteran's hip disability. The examiner also concluded that it was less likely than not that the Veteran's hip or back disabilities were either caused or aggravated by his service connected left foot disability, citing the same set of risk factors listed above. This opinion was rendered with a full knowledge of the Veteran's medical history; it was well-reasoned; and it was supported by a complete rationale that was grounded in the evidence of record and specific facts of this case. As such, the Board finds that this opinion is highly probative and entitled to great weight. Moreover, the examiner's opinion has not been specifically challenged or refuted by any competent evidence of record. The examiner was aware of the suggestions by several medical professionals that the Veteran's hip and/or back disabilities might be related to his service connected left foot disability, but he ultimately concluded that the significant number of non-service related risk factors made it less likely than not that the Veteran's back or hip disabilities were caused or permanently aggravated by his service connected disability. While the Veteran believes that his back and hip disabilities were caused or aggravated by his service connected foot disability, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of an internal disease process, such as in this case. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. As described, the weight of the evidence is against the conclusion that the Veteran's back and hip disabilities were either caused or aggravated by his service connected foot disability. As such, the criteria for service connection have not been met, and the Veteran's claims are denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in March 2005, July 2005, and November 2007 which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The November 2007 letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. In any event, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records have been obtained, as have service treatment records. Additionally, the Veteran testified at a hearing before the Board. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination to have been thorough and adequate and it provides a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disabilities. Moreover, neither the Veteran, nor his representative, has alleged that the examination is inadequate. This is relevant in that the representative did submit a post-remand brief in January 2013. The brief acknowledged that the examiner's opinion had been against the Veteran's claim, but the representative only argued that on the evidence of record service connection was warranted, regardless of the examiner's opinion. Had there been any objection to the adequacy of either the examination or the examination report, the brief would have been the time to voice such a contention. The Board takes this silence as tacit acceptance of the adequacy of the VA examination. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. [Continued on Next Page] ORDER Service connection for a hip disorder, to include as secondary to the residuals of a partial amputation of a left great toe, is denied. Service connection for a back disorder, to include as secondary to the residuals of a partial amputation of a left great toe, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs