Citation Nr: 1309517 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 05-06 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hip pain, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Cleveland, Ohio. In April 2009, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing at the RO located in Cleveland, Ohio. A Transcript of the proceeding has been associated with the claims file. In September 2009, June 2011 and August 2012, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further appellate review. FINDING OF FACT The Veteran has complaints of bilateral hip pain that are not attributable to a disease or injury incurred in service, there are no objective indications of a qualifying chronic disability underlying such symptoms. CONCLUSION OF LAW A bilateral hip disability was not incurred in or aggravated by service, nor is it due to an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in June 2004 letter prior to the date of the issuance of the appealed September 2004 rating decision. The June 2004 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. A January 2011 supplemental statement of the case advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite the untimely notice provided to the Veteran on the disability rating and effective date elements of his claim, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Because the Board concludes below that the preponderance of the evidence is against the Veteran's claim for compensation, any questions as to the appropriate disability evaluations or effective dates to be assigned are rendered moot. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, he was afforded VA examinations in February 2004, March 2006, September 2010 and July 2011. Additionally, the July 2011 VA examiner also performed a VA records review in October 2012. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). On November 2, 1994, Congress enacted the 'Persian Gulf War Veterans' Act,' Title I of the 'Veterans' Benefits Improvements Act of 1994,' Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asian theater of operations during the Persian Gulf War. To implement the Persian Gulf War Veterans' Act, VA added a regulation, 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f); 38 C.F.R. § 3.317(d). In this case, the Veteran is documented to have had such service. The Board notes that Congress revised 38 U.S.C.A. § 1117, effective March 1, 2002. In the revised statute, the term 'chronic disability' was changed to 'qualifying chronic disability,' and the definition of 'qualifying chronic disability' was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a) (2). Under 38 U.S.C.A. § 1117(a) (1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a 'qualifying chronic disability' that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 18, 2006, VA extended the presumptive period in 38 C.F.R. § 3.317(a) (1) (i) through December 31, 2011 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 71 Fed. Reg. 75669 (2006). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), (b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period are considered chronic. 38 C.F.R. § 3.317(a) (4). The term 'objective indications of a qualifying chronic disability' includes both 'signs,' in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a) (3). Signs or symptoms that may be manifestations of an undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g). Factual Background and Analysis The Veteran claims that he has a bilateral hip pain condition, to include as due to an undiagnosed illness relating to his service in the Persian Gulf. By way of background, the Veteran filed his claim for service connection in September 2003 (claimed as joint pain, and the Board notes that service connection for joint pain, excluding bilateral hip pain, was separately denied by way of a June 2011 Board decision). The Veteran's service treatment records are negative for treatments or complaints related to hip pain or a hip injury. The Veteran's May 1988 enlistment examination report notes no clinical abnormality of the lower extremities or other musculoskeletal system. His December 1991 separation examination report noted no clinical abnormality of the lower extremities or other musculoskeletal system. VA treatment records dated from March 2000 to May 2005 reflect complaints of hip pain. A February 2004 VA examination (Gulf War Registry / joints) reflects diagnosed quadriceps myalgia, noting that the Veteran's complaints of hip pain seemed to be centered more around the proximal thigh area, which the examiner related to the Veteran's steroid use (for a non-service connected pulmonary condition) and due to inactivity. At the same time, however, the examiner noted that June 2003 hip x-rays were negative, and that no tenderness was shown on examination. A March 2006 VA examination report (fibromyalgia) prepared by the same examiner reflects that there was tenderness on examination, range of motion was limited due to pain, and an impression of pain in the right hip was recorded. At the same time, the examiner noted that previous x-rays were negative and no abnormalities were shown on examination, including no neurological deficit. The examiner opined that the Veteran's hip complaints were not due to any fibromyalgia disorder, and that there was no basis to make a diagnosis of any physical condition regarding the Veteran's hips. In September 2009, in light of the inconsistencies in the above two examination reports, the Board remanded the Veteran's claim to obtain a new VA examination. A September 2010 VA examination report reflects that the examiner provided an opinion regarding the Veteran's knee and ankle complaints, but failed to address the Veteran's claimed bilateral hip condition. Based thereon, the Board again remanded the Veteran's claim in June 2011 for a new VA examination. A July 2011 VA examination report reflects that the examiner noted that there was no pathology of the bilateral hips, there was no medical record of complaint of hip pain since a May 2005 VA treatment record, and, therefore, that there was no bilateral hip disability. At the same time, however, the examiner noted that a July 2011 x-ray report reflects an impression of a normal configuration of the femoral head, but with findings indicating very early changes of avascular necrosis. The examiner further opined that there was no evidence supporting an undiagnosed illness or chronic multi-symptom illness, reasoning that all of the Veteran's conditions relate to specific diagnoses. As the July 2011 VA examination report reflected that an x-ray revealed findings consistent with very early necrosis, the Board in its August 2012 decision found that a remand s was necessary to seek clarification from the July 2011 VA examiner as to whether these x-ray findings accounted for the Veteran's complaints of bilateral hip pain, and whether such disability was related to service. Per the August 2012 Board remand instructions, the VA examiner who conducted the July 2011 VA examination provided a medical opinion in October 2012. She noted that on the July 2011 VA examination, she had determined that there was no pathology of the bilateral hips. Furthermore, she noted that the Veteran had made no complaints concerning his hips for many years now and last sought medical attention for them in 2005. She indicated that there was no disability from the bilateral hips since there was no condition of the bilateral hips. The examiner noted that there was no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's diagnosed condition of no pathology of the bilateral hips and the Veteran's environmental exposure event. She opined that it was less likely than not that the Veteran's condition of no pathology of the bilateral hips was caused or a result of military service and in particular, service in Southwest Asia, since there was no condition of the hips to be secondary to such service. There was no evidence for an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. All the Veteran's conditions were consistent with a disease with a clear and specific etiology and diagnosis. After examining the Veteran, and reviewing the claims file, the examiner determined that the Veteran's disability pattern represented a disease with a clear and specific etiology and diagnosis. All of the Veteran's conditions including disability patterns and diagnosed diseases were not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. The examiner noted that the Veteran had undergone appropriate VA examinations to determine the nature and etiology of any current hip disability and none had been found. There had been no disability found on examination so the examiner had not commented on the etiology of the disability since there was none. The examiner indicated that since no diagnosable hip disorder was identified and since the Veteran's claimed symptoms were not attributable to a diagnosis, she had indicated that there was no objective medical indication that the Veteran was suffering from joint problems. She noted that he determined that there was no undiagnosed illness that was incurred during active duty in the Southwest theatre of operations and that there was no affirmative evidence that any undiagnosed illness was caused by a supervening condition or event that occurred between his departure from the Southwest Asia theatre of operations and the onset of the illness since there was no such condition. The examiner also noted that at the time of the July 2011 VA examination, the claims file revealed that the Veteran had only made complaints regarding his hips on 3 occasions in March 2000, October 2003 and May 2005. Additionally, the Veteran had not made any complaints regarding his hips for the past 6 years. Overall, the examiner did not see any evidence for unexplained illness causing the Veteran's reported joint pain. She noted that the Veteran's sensitivity to pain was likely increased due to his generalized anxiety disorder and current depression. It was noted that the Veteran presented with complaints of hip pain to the rheumatology clinic in October 2003 but that he was diagnosed with lower extremity swelling and tenderness and generalized arthralgia. Nothing specific was diagnosed with respect to his hips. As she noted in his previous VA examinations, there was scant evidence that the Veteran had any symptomatology in any hip. It was noted that a previous VA examination in February 2004 noted quadriceps myalgia, but this had resolved at the time the same examiner evaluated him in March 2006. The examiner also noted that when she first evaluated the Veteran in September 2010 for "any current joint condition", he made only complaints concerning his knees and ankles and made no mention of any hip symptoms. The examiner noted that x-rays from July 2011 demonstrated normal configuration of the femoral head, but with findings of subchondral areas of increased density. In the report written in association with the July 2011 x-rays, it was noted that in the appropriate clinical setting, this could indicate very early changes of avascular necrosis. The examiner indicated that the wording "in the appropriate clinical setting" was the standard of care in the practice of medicine to raise any potential confounding diagnostic variables since clinical medicine did not work on the civil law caveat of more or less than a 50 percent probability but rather works on the principles of a differential diagnosis in which all diagnostic possibilities are listed and noted so that they can be systematically excluded. Thus, the July 2011 reviewing radiologist made the appropriate call in stating that there were nonspecific findings that "in the appropriate clinical setting" could have potential significance. The examiner noted that a radiologist did not have access to a patient's overall medical record and was simply reviewing and reporting on a radiological picture as opposed to a treating or forensic physician who did have access the entire record and who made decisions based on the entire evidence of record. Thus, the examiner determined that the July 2011 x-ray report was a nonspecific radiological finding with no clinical significance and did not mean that there was any evidence for a hip diagnosis or a chronic hip disability. The examiner determined that it remained her reasoned medical opinion that there was no pathology or diagnosis of any condition of either hip at any time, to include since the Veteran's military discharge in December 1991. The examiner concluded that it was less likely than not that the Veteran's condition of no pathology or diagnosis of any condition of either hip at any time was caused by or related to service since there was no condition in either hip to be related to military service. As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. Based on the above evidence, the Board finds that service connection for bilateral hip pain is not warranted. The Board finds a preponderance of the evidence is against finding a currently diagnosed disability of the bilateral hips, and a preponderance of the credible evidence of record is against finding a qualifying chronic disability for which service connection is warranted. In reaching this conclusion, the Board finds the July 2011 VA examination and October 2012 VA records review, both conducted by the same VA examiner, to be the most probative evidence of record. These opinions were provided by a medical professional who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). As discussed above, these opinions were based upon review of the claims folder, including the Veteran's service treatment records and post-service medical evidence. The reports discuss the Veteran's pertinent medical history and include a thorough physical examination conducted in July 2011. The examiner clearly explains her basis for finding no pathology of the bilateral hips and explains why a finding of undiagnosed illness would not be appropriate. Therefore, the Board finds the July 2011 and October 2012 opinions to be highly probative to determining whether the Veteran may be diagnosed with a current bilateral hip disability and, if not, whether the Veteran has exhibited any objective indications of a qualifying chronic disability. With respect to the question of whether a diagnosis of a bilateral hip disability is warranted, the Board finds the July 2011 examination report and October 2012 records review report to be more probative than the February 2004 and March 2006 VA examination reports. As noted above, February 2004 VA examination report reflected a diagnosis of quadriceps myalgia, noting that the Veteran's complaints of hip pain seemed to be centered more around the proximal thigh area, which the examiner related to the Veteran's steroid use (for a non-service connected pulmonary condition) and due to inactivity. At the same time, however, the examiner noted that June 2003 hip x-rays were negative, and that no tenderness was shown on examination. The March 2006 VA examination report made no hip diagnosis but did note tender areas on examination, despite having noted diffuse tenderness during the physical examination. The March 2006 opinion also noted there were no objective abnormalities on examination, while later noting that objective findings on examination were much less than the Veteran's subjective complaints. Conversely, in her October 2012 clarifying opinion, the examiner who conducted the July 2011 VA examination determined that there was no pathology or diagnosis of any condition of either hip at any time, to include since the Veteran's military discharge in December 1991. The examiner also concluded that there was no evidence for an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology, as all of the Veteran's conditions were consistent with a disease with a clear and specific etiology and diagnosis. In making this conclusion, the October 2012 examiner addressed the findings of the February 2004 VA examiner as well as the July 2011 VA x-ray report which revealed findings consistent with very early necrosis. The October 2012 VA examiner determined that while the VA examination in February 2004 noted quadriceps myalgia, this had resolved at the time the same examiner evaluated him in March 2006. The examiner also noted that when she first evaluated the Veteran in September 2010 for "any current joint condition", he made only complaints concerning his knees and ankles and made no mention of any hip symptoms. Regarding the July 2011 x-ray readings which demonstrated findings consistent with very early necrosis, the October 2012 VA examiner explained that the July 2011 reviewing radiologist made the appropriate call in stating that there were nonspecific findings that "in the appropriate clinical setting" could have potential significance as the wording "in the appropriate clinical setting" was the standard of care in the practice of medicine to raise any potential confounding diagnostic variables. However, the examiner concluded that the July 2011 x-ray report was a nonspecific radiological finding with no clinical significance and did not mean that there was any evidence for a hip diagnosis or a chronic hip disability. In making this conclusion, the examiner noted that a radiologist did not have access to a patient's overall medical record and was simply reviewing and reporting on a radiological picture as opposed to a treating or forensic physician who did have access to the entire record and who made decisions based on the entire evidence of record. Thus, even when taking the July 2011 x-ray report into consideration, the October 2012 examiner, who had access to the Veteran's overall record, determined that there was no pathology or diagnosis of any condition of either hip at any time. Thus, the Board finds a preponderance of the evidence is against finding a currently diagnosed disability of the bilateral hips, and a preponderance of the credible evidence of record is against finding a qualifying chronic disability for which service connection is warranted. The Board notes that the Veteran himself has asserted that he has current bilateral hip pain that is related to his military service. Even if the Board were to find the diagnosis of a bilateral hip disability in the case at hand to be a relatively simple medical question that requires no specialized training, see Jandreau, supra., the Board notes that the Veteran, as a lay person, is not competent to attribute his current bilateral hip pain to military service that ended years before any hip pain complaints. As noted above, the July 2011 VA examiner noted that the claims file revealed that the Veteran had only made complaints regarding his hips on 3 occasions in March 2000, October 2003 and May 2005. Additionally, the Veteran had not made any complaints regarding his hips for the past 6 years prior to the July 2011 VA examination. As the initial reports of hip pain occurred at least 8 years following his separation from service in December 1991, the Board finds that the Veteran does not possess the medical expertise to link any current hip pain to military service that ended more than eight years earlier. The Board next observes that, although the Veteran is a lay person, he is competent to report that he currently experiences symptoms of hip pain. See Jandreau, supra. (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The competency of an individual to testify, however, must be distinguished from the credibility of the testimony. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In the case at hand, the Board does not find the Veteran's reports of chronic joint pain to be credible. This conclusion is based on the Board's own review of the claims file and on the impressions of various VA examiners. For example, the March 2006 VA examiner found that "His objective findings on examination are much less than the subjective complaints, similar to the conclusion reached by [the October 2005 VA examiner] in her evaluation of his headaches. There is no basis to make a diagnosis of a physical condition regarding his right hip, knee, and ankle symptoms at this point in time." The September 2010 VA examiner described her October 2005 examination as follows: I did a VA compensation and pension examination dated 10/12/05 and diagnosed headache complaints vastly out of proportion to any objective findings. His description of his headaches changes with the encounter. Given the complete discordance between his complaint of the severity of his headaches, his current lack of distress, and his noncompliance with treatment, it appears most likely that the veteran's complaints are for purposes of compensation rather than of a true headaches disorder. There is nothing in the evidence of record to suggest the objective presence of a headache disorder. The October 2005 VA headaches examination report described the following: [The Veteran] complains of currently having a severe headache rating as an 8/10 on the pain scale, but there are absolutely no signs of distress. He is also noted to be carrying a cane for assisted ambulation. When questioned as to why, he states that he has a "balance problem" with no further description.... On testing of ambulation, the veteran is asked to refrain from use of his cane. His wife is present with him and just injured her knee and is returning from her own emergency room visit wearing a large leg brace. She wants to jump up to catch the veteran since she states that he will fall but is not allowed to do so. When assured that neither his wife nor I will catch him should he fall, his gait is completely normal. When leaving the area walking down the hall, he carries the cane at times without touching the ground with it. At other times, he taps it on the ground but at no times is observed using it for balance or assisted ambulation. It is more in the nature of a prop. Given the persuasive and consistent findings noted on VA examination that indicate that the Veteran is inventing or exaggerating his symptoms for compensation purposes, the Board must conclude that the Veteran's reports of chronic hip pain are not credible. In the absence of credible evidence of current hip pain, the Board cannot find that the Veteran has exhibited objective indications of a qualifying chronic disability for the purpose of establishing entitlement to service connection for bilateral hip pain based on an undiagnosed illness. In short, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to service connection for bilateral hip pain, to include as due to an undiagnosed illness. In making this decision, the Board has considered the benefit-of-the-doubt-doctrine, but it does not apply, because the preponderance of the evidence is against the claim. Gilbert, supra.; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hip pain, to include as due to an undiagnosed illness is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs