Citation Nr: 1310069	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-13 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Waco, Texas


THE ISSUES

1. Entitlement to service connection lumbar spine degenerative disc disease, claimed as secondary to the service-connected residuals of bilateral hammertoe surgery.

2. Entitlement to service connection for a total right hip replacement, claimed as secondary to the service-connected residuals of bilateral hammertoe surgery.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active military service from November 1964 to October 1980.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the RO. The Board remanded the claims on appeal in June 2011, November 2011 and October 2012 for further development. That development has been completed, and the case has since been returned to the Board for appellate review.

The Board notes that, in addition to the paper claims file, 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.


FINDINGS OF FACT

1. The Veteran's lumbar spine degenerative disc disease has not been shown to be related to his military service or to his service-connected residuals of bilateral hammertoe surgery.  

2. The Veteran's degenerative joint disease status post total right hip replacement has not been shown to be related to his military service or to his service-connected residuals of bilateral hammertoe surgery.  


CONCLUSIONS OF LAW

1. Lumbar spine degenerative disc disease was not incurred in or aggravated in service and is not proximately due to, the result of, or aggravated by the service-connected residuals of bilateral hammertoe surgery. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 

2. Degenerative joint disease status post total right hip replacement was not incurred in or aggravated in service and may not be presumed to have been incuured therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

3.  Degenerative joint disease status post total right hip replacement is not proximately due to, the result of, or aggravated by the service-connected residuals of bilateral hammertoe surgery.  38 C.F.R. § 3.310 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in a February 2009 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection for the claimed lumbar spine and right hip disorders, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the February 2009 letter, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement.    

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal.  

In addition, the Veteran was afforded (most recently) a VA examination in November 2012 in connection with his claims for service connection for the claimed lumbar spine and right hip disorders. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the examination and medical opinions obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and the medical literature, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). 

Further, the Board is aware that this appeal was, most recently, remanded by the Board in October 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO obtain an adequate VA medical opinion regarding the etiology of the Veteran's lumbar spine and right hip disorders. Specifically, the VA examiner was to address whether the Veteran's lumbar spine and right hip disorders were caused by his service-connected residuals of bilateral hammertoe surgery; the examiner was also to address whether the Veteran's lumbar spine and right hip disorders were aggravated beyond their natural progression by the service-connected residuals of hammertoe surgery. Again, this development was completed in the November 2012 VA examination report. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order).

In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Arthritis is a chronic disease.  38 U.S.C.A. § 1101.  The appellant does have arthritis of the hip.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. 

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).

Analysis

The Veteran's service treatment records document that in September 1974 he complained of a 3-day history of low back pain. He reported that he experienced pain in his low back three days earlier after using a sledge hammer. On examination, the assessment was strained lower back. Otherwise, there were no complaints of, treatment for or diagnosis of symptoms related to a low back disorder or a right hip disorder. The August 1980 report of separation examination reflects that clinical evaluation of the Veteran's spine, other musculoskeletal was normal.

The Veteran does not contend that his right hip disorder onset was due to disease or injury sustained in service. Rather, he asserts that his current lumbar spine and right hip disorders are causally related to his service-connected residuals of bilateral hammertoe surgery. Specifically, he asserts that his altered gait from his bilateral foot disability has caused or contributed to his lumbar spine and right hip disorders.  In regard to the lumbar spine, the issue of direct service connection is raised by the record in light of him reporting a 25 year history of intermittent back pain.

A June 1998 private treatment record documents the Veteran's complaint of pain in the right hip and buttock area for several years. The Veteran reported that it was painful when he walked. He had developed a significant limp and it was painful, particularly with weight bearing or with twisting. He indicated that prior x-ray reports showed early degenerative joint disease. He also complained of periodic back pain and indicated that he had a prior history (25 years ago) of disc space infection. July 1998 private documents findings of an x-ray report which showed stage IV degenerative arthritis with bone on bone contact and distortion of the femoral head. The physician indicated the future total hip replacement would be necessary. A January 1999 private treatment record reflects the Veteran's desire to undergo, in pertinent part, total right hip replacement. February 1999 private treatment records documents the Veteran's total right hip replacement surgery. March to May 1999 treatment records reflect that the Veteran was doing well status post total right hip replacement. He was ambulating well and had good range of motion of the hip. A July 2005 private treatment record documents the Veteran's first complaint of right hip pain since his total right hip replacement. He was scheduled for epidural steroid injections and the physician expected dramatic improvement.

In the report of August 2009 VA examination, the examiner recorded the circumstances and initial manifestations of disease or injury related to the Veteran's claimed right hip and lumbar spine disorders. The examiner recorded right total hip replacement (date of onset February 1999) "with osteoarthritis of the right hip believed by orthopedist to be related to gait disturbance, but records not specific as to etiology." Also recorded, "patient with chronic low back pain for years (date of onset 1980's), became really a problem in the last 3-4 years, interfering with his work and other activities." On examination, the diagnoses were osteoarthritis of the hips with total right hip replacement and DJD/DDD (degenerative joint disease/degenerative disc disease) of the lumbar spine without sciatic symptoms. The examiner commented "unlikely there is a connection between treatment of muscular back pain with no apparent sequelae and current manifestations of DDD L5-S1. The examiner also opined that without resort to mere speculation he was unable to state whether the Veteran's lumbar spine and right hip disorders were due to or aggravated by his service-connected residuals of hammertoe surgery.

In June 2011, the Board found this opinion to be insufficient and remanded the claims for a clarifying opinion as to etiology of the lumbar spine and right hip disorders. Pursuant to the June 2011 Board remand, the Veteran was afforded another VA examination in July 2011. In the report of July 2011 VA examination, the examiner recorded the circumstances and initial manifestations of disease or injury related to the Veteran's claimed right hip and lumbar spine disorders. The examiner noted the service treatment record indicating the Veteran experienced back pain driving steaks for a tent with a sledge hammer. The Veteran reported that in service he was provided muscle relaxers and Motrin and told he would have to live with the pain so he never complained of the pain again. He reported that the back pain got worse about three years ago and had progressed to constant pain since that time. Sitting for more than 30 minutes, bending and walking a quarter mile aggravated his back pain; Advil provided some relief; and only hydrocodone relieved the back pain.

The examiner also recorded right total hip replacement (date of onset February 1999) "with osteoarthritis of the right hip believed by orthopedist to be related to gait disturbance, but records not specific as to etiology." On examination, the diagnoses were osteoarthritis of the hips with total right hip replacement and DDD of the lumbar spine. The examiner opined that it was unlikely that the musculoskeletal pain in 1975 (in service) resulted in DDD of the lumbar spine. The examiner also opined that it was unlikely that the Veteran's joint conditions, including spine and hips, were aggravated or caused by foot surgery.

The Veteran submitted medical literature to support his contention that his altered gait from his service-connected residuals of hammertoe surgery caused his current back and right hip disorders. Thus, in November 2011, the Board found the July 2011 opinion to be inadequate as it failed to provide rationale for the provided opinion (especially in light of the medical literature provided by the Veteran that supported his contention). Accordingly, the Board remanded the claims for further clarifying opinion as to etiology, to specifically include rationale for the provided opinion. 

Pursuant to the November 2011 Board remand, in an addendum December 2011 addendum, the examiner documented review of the claims file and concluded that based on the Veteran's symptoms and review of the treatment records, he could not make a direct connection between surgery for hammertoes and subsequent development of right hip DJD and DDD of the lumbar spine. However, the examiner acknowledged that he did not get any literature along with the claims file and therefore could not respond to any literature that suggested a positive association (supported the Veteran's contention).

In October 2012, the Board found this addendum opinion to be deficient and remanded the claims for a clarifying opinion as to etiology of the lumbar spine and right hip disorders. Pursuant to the October 2012 Board remand, the Veteran was afforded another VA examination in November 2012.

In the report of November 2012 VA examination, the examining physician recorded the Veteran's reported medical history. Regarding the lumbar spine, the Veteran reported that he injured his back while on maneuvers in Korea while driving steaks for a tent with a sledge hammer. He was taken to the clinic and was given muscle relaxers and some pain medication. He reports that he was told that his back would get better but would never get well and would get worse as he got older. He did not seek further treatment for back disorder during the remainder of his service. Subsequent to service, he worked for the U.S. Postal service for 26 years prior to his retirement. He complained of current back pain that was alleviated only by hydrocodone. 

On examination, the diagnosis was moderately advanced degenerative disc disease of the lumbar spine. The examiner reported that the Veteran did have an abnormal gait with a shortened forward swing phase, no heel strike, but rather with the foot coming to contact to the ground more flat footed in a shuffle and with absence of toe lift off. There was reduction in bilateral hip flexion during swing phase; during stance phase there was near zero hip extension. This gait pattern resembled the gait one would see of someone walking on ice and trying to keep feet in contact with the ground surface, resulting in a gait pattern significantly limiting stress on the remaining joints of the legs, including the hip with reduced hip and pelvic (reduced rotation and pelvic tilt) and thus reducing normal functional stressors of the low back. The examiner also reported that the Veteran had a very slight antaligic aspect as the left foot came in contact with the floor as he favored the left foot somewhat and avoided pressure on the toes. The shortened swing phase so adjusted the gait as to also act as a mechanism which limited flexion and pressure on the forefoot and toes of both feet during the stance and pre-swing phase. 

Regarding the right hip, the Veteran reported that he began having some problems with the right hip in approximately 1997. His office was located upstairs and he began having problems going up and down the stairs. Initially, he was treated with cortisone injections but eventually, he required hip replacement. He had done well since the hip replacement but was beginning to have some laxity in the right hip with range of motion of the hip. He also reported that his 42 year old son was having hip replacement that month. On examination, the diagnosis was DJD status post total right hip arthroplasty.

The examiner reviewed the claims file and thoroughly documented review of the pertinent records, including the medical literature provided by the Veteran to support his contention. The examiner indicated that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disability. The examiner explained that it was known that pathological biomechanical stress may occur due to altered gait resulting in joint problems, which may include hip and low back. This was often observed in the gait patterns such as gluteal medial lurch, trendelenber gait or significant antaligic gaits (where the individual has muscle weakness or altered gait due to pain). The examiner also explained that there were also instances of altered gait patterns resultant from patho-mechanical stress related to neuro-muscular dysfunction as is seen in post-polio syndrome or with poly-peripheral neuropathy or other syndromes resulting in loss of proprioception or sensory perception of the feet. However, these neurological gait patterns were not seen in the Veteran. He denied any history of polio or post-polio syndrome, diabetes mellitus or other neurological diagnosis. The examiner noted that the Veteran's service separation examination did not reveal any hip joint problems, low back disorders or altered gait. 

The examiner explained that the present examination revealed a gait pattern which would be sparing of biomechanical forces involving the joints, rather than a gait pattern that would worsen these forces. The examiner noted that the pre-surgical assessment (February 1999) indicated that the Veteran had developed limp with weight bearing or twisting which had occurred after a significant number of years had passed since the Veteran's discharge. This was particularly noteworthy since there was no mention of altered gait related to hammertoes or function of the feet (as noted in present examination); rather, there was only mention of a limp in reference to the hip complaint. The examiner found it also noteworthy that the Veteran had asymmetrical hip joint disease although his foot disability is bilateral. The examiner noted that review of the medical literature revealed risk factors for back pain included smoking, obesity, older age, sedentary work, strenuous work, job dissatisfaction, depression and anxiety. The Veteran had a long history of smoking and was noted for obesity. Obesity was a risk factor for development of osteoarthritis in weight bearing and non-weight bearing joints. Smoking was known to have a detrimental effect on bone and joints by reducing blood supply, reduced absorption of calcium resulting in increased risk of injury and reduced ability to heal after injury. The examiner thus concluded, based on review of the literature, claims file review and examination of the Veteran, that the Veteran's right hip and lumbar spine disorders were less likely than not (less than 50 percent probability) proximately due to, caused by or aggravated, beyond natural progression, by the service-connected residuals of bilateral hammertoe surgery.

Given its review of the record, the Board finds that service connection for the claimed lumbar spine degenerative disc disease and total right hip replacement is not warranted. In the November 2012 report of VA examination, the examiner explicitly concluded that the Veteran's right hip and lumbar spine disorders were less likely than not (less than 50 percent probability) proximately due to, caused by or aggravated, beyond natural progression, by the service-connected residuals of bilateral hammertoe surgery. The examiner explained that the Veteran demonstrated a gait pattern which would be sparing of biomechanical forces involving the joints, rather than a gait pattern that would worsen these forces. Further, the Veteran had other risk factors, notably a history of smoking and obesity, for the development of the lumbar spine and right hip disorders. The Board notes that this VA examiner's opinion was based on a thorough review of the medical records (including conflicting medical evidence), taking the Veteran's history, performing examination and reviewing the medical literature.   

Additionally, while the Veteran does not contend that his right hip disorder had onset due to disease or injury sustained in service, the Board points out that there is no credible evidence or opinion that even suggests that there exists a relationship, or nexus, between the right hip disorder and the Veteran's active service.  There are no complaints of right hip disability until many years after service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).Furthermore, there is no assertion of continuity of symptomatology and there is no evidence of arthritis within one year of separation from service.  38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309.

In regard to the lumbar spine, there was a single episode of back pain in service, diagnosed as strained lower back in September 1974; however, there were no further complaints or related sequelae until many years after service.  Although he has reported that he had a 25 year history (in 1998) and periodic problems, we note that disc disease is not an enumerated chronic disease and section 3.303(b) is not applicable.  38 U.S.C.A. § 1101; 38 C.F.R. § 3.303(b).  To the extent he has attempted to establish a lay nexus of ongoing symptoms since service (38 C.F.R. § 3.303(a)), we find such assertion to be not credible. The February 1978 examination disclosed that the spine was normal.  Similarly, the August 1980 separation examination disclosed that the spine was normal.  Similarly, in August 1980 he reported that he was in good health and he specifically denied a history of recurrent back pain.  To the extent that he attempts to establish a lay nexus to service, his reports statements are inconsistent with the contemporaneous records and are not credible.  

The only evidence of record supporting the Veteran's claim is his various general lay assertions. In this case, the Board finds that the Veteran is competent to state that his altered gait from his bilateral foot disability has caused or contributed to his lumbar spine and right hip disorders (the Board notes that he has consistently made this assertion). See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (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")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the medical literature submitted by the Veteran supporting his assertion, the Board also accepts his lay assertions as credible. However, in this case, the Board finds the opinion of the VA examiner in the November 2012 report VA examination to be more probative. The VA examiner is a medical professional who has reviewed the claims file, considered the reported history, performed physical examination and reviewed the submitted medical literature. The examiner used their expertise in reviewing the facts of this case and determined that the current lumbar spine and right hip disorders were unrelated to the Veteran's service-connected residuals of bilateral hammertoe surgery.

It is clear that the examiner fully understood the basis for the Veteran's claims yet still determined, after reviewing the facts of the case, that the current lumbar spine and right hip disorders were related to causes other than the Veteran's service-connected residuals of bilateral hammertoe surgery. The Veteran has not suggested that this examination was performed in an insufficient manner. 

For the foregoing reasons, the Board finds that the claims of entitlement to service connection for lumbar spine degenerative disc disease and total right hip replacement, to include as secondary to the service-connected residuals of bilateral hammertoe surgery must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Entitlement to service connection lumbar spine degenerative disc disease, claimed as secondary to the service-connected residuals of bilateral hammertoe surgery is denied.

Entitlement to service connection for a total right hip replacement, claimed as secondary to the service-connected residuals of bilateral hammertoe surgery is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs