Citation Nr: 1310163 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-48 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a bilateral hip disability as secondary to his service-connected lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from April 1976 to April 1979 and from September 1990 to May 1991. He also had service in the Army Reserves. This matter came before the Board from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which denied service connection for a bilateral hip disability. In August 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO; a copy of the transcript has been associated with the record. FINDING OF FACT The Veteran's currently diagnosed bilateral hip disability is not directly related to, or aggravated by his service-connected lumbar spine disability. CONCLUSION OF LAW Entitlement to service connection for a bilateral hip disability as secondary to a service-connected lumbar spine disability, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The RO provided notice to the Veteran in a July 2010 letter, prior to the date of the issuance of the appealed August 2010 rating decision. The July 2010 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 report of a July 2010 VA examination. The July 2010 VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the July 2010 VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); 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 The Veteran asserts that he has a bilateral hip disability that was either caused or aggravated by his service-connected lumbar spine disability. A review of his service treatment records discloses no complaints or assessments regarding his bilateral hips. The service treatment records demonstrate multiple complaints of back pain and lumbar radiculopathy. Specifically, the Veteran reported that he injured his back in April 1991 when lifting ammunition boxes during his deployment for Desert Storm. A September 1993 VA treatment note demonstrated a diagnosis of lumbar radiculopathy. However, they are completely negative for complaints related to hip pain. The Veteran underwent a VA joints examination in July 2010. The diagnosis was extensive degenerative changes of both hips, with the left being worse than the right. The Veteran also underwent a VA bones examination in July 2010. The examiner, an orthopedist, noted that he reviewed the Veteran's private and VA treatment records prior to examining the Veteran. The Veteran denied any specific injuries to his hips and could not recall a specific injury in the service. He reported that the pain in his hips began in 1991. He noted that while in the service, he presented with complaints of some radicular symptoms running down his legs and that he was ultimately diagnosed with narrowing of his L5-S1 of the lumbar spine. X-rays demonstrated bilateral degenerative joint disease with the left more severe than the right. The diagnosis was bilateral degenerative joint disease of the hips. The examiner opined that the Veteran's bilateral hip disability was less likely as not the result of his service-connected mild narrowing of his L5-S1 lumbar spine. The examiner indicated that the Veteran's bilateral hip pain was most likely degenerative in nature as he had not suffered a specific injury causing posttraumatic arthritis. There was no evidence based on literature that supports that the Veteran's degenerative lumbar spine would have resulted in increased arthritic changes or degeneration of the bilateral hips. Also, a history of bilateral degenerative hips in no way contributed to an increased risk for degenerative disc disease of the lumbar spine. The examiner was also unable to find any significant service treatment records for his bilateral hip pain being related to his lumbar spine. His lumbar spine pain in all the documented notes was causing radiculopathy. Bilateral hip arthritis in no way would contribute to a radiculopathy of the lower extremities. The examiner concluded that there was no aggravation of the bilateral hips in association with his service-connected lumbar spine issues. In September 2010, the Veteran underwent a total left hip replacement. In an October 2010 letter, a private physician noted that when the Veteran injured his back in 1991, he had back pain and concomitantly experienced left hip pain at the same time. The physician noted that this was documented in the records that the Veteran had from Desert Storm. He noted that due to the Veteran's back pain, his hip pain was overlooked despite the fact that it had continued since this time. It was noted that the Veteran had recent hip surgery. The physician opined that he felt that the Veteran's left hip pain was connected to his back injury in service in 1991. He noted that "definitely arthritis and injury in the back would have contributed to early degenerative changes in the hip." He concluded that he would recommend that the back and hip disabilities to be service connected. A February 2011 VA treatment note indicated that the Veteran was to undergo a right rotator cuff repair before undergoing any right hip replacement surgery. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a bilateral hip disability as secondary to a service-connected lumbar spine disability is not warranted. As noted above, there is a current diagnosis of degenerative joint disease of the bilateral hips; 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 bilateral hips is the July 2010 VA x-ray report. While the Veteran maintains that his hip pain began in 1991, the record does not demonstrate hip complaints or a diagnosis of arthritis within a year of the Veteran's service separation. Multiple treatment records from 1991 demonstrate that the Veteran presented with complaints of back and radiculopathy symptoms, but they are negative for complaints related to bilateral hip pain. As the record does not show manifestations of arthritis within one year of the Veteran's service separation, service connection for arthritis on a presumptive basis is not warranted. With regard to service connection on a direct basis for the Veteran's bilateral hip disabilities, the Board notes that the Veteran's service treatment records demonstrate complaints of back and radiculopathy complaints but are entirely negative for bilateral hip complaints. Additionally, as noted above, the first post-service evidence of a bilateral hip disability is a May 2010 VA treatment note indicated that the Veteran had bilateral hip pain. 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 a bilateral hip disability since service. While the Veteran reports hip complaints since his in-service in jury in 1991, his separation examination report is negative for any treatment, complaint, or diagnosis pertinent to his bilateral hips. Moreover, during treatment in September 1993 for his back and back radiculopathy, he made no mention of hip pain or symptoms related to his hips. This documented medical history is in conflict with his more current assertions that his current symptoms have continued since service. The Board places greater probative weight on the symptoms reported in September 1993 as such history was obtained in conjunction with treatment versus in connection with a pending claim for compensation benefits. As the Veteran was not diagnosed with a bilateral 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 bilateral hip disability, the Board concludes that the weight of the evidence is against a finding of continuity of symptomatology since service. 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 bilateral hip disabilities and service will turn on the conflicting medical opinions of record addressing the possibility of such a relationship. In this regard, 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). The October 2010 letter by the private physician suggests that there is a link between the Veteran's current bilateral hip disability and his service-connected lumbar spine disability. However, while the physician found that there was a connection between his bilateral hip disability and his service-connected lumbar spine disability, no rationale was provided for this opinion and the physician did not provide any specific evidentiary or medical basis for the opinion. Additionally, the Board also notes that the physician erroneously noted that after his back injury in 1991, the Veteran experienced back pain and concomitantly experienced left hip pain at the same time which was documented in the records that the Veteran had from his service during Desert Storm. However, as detailed above, service treatment records show that after the 1991 injury the Veteran only presented with back pain with no concurrent complaints of left hip pain. The service treatment records noted continued complaints of back pain and radiculopathy, but were negative for complaints of hip pain. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461(1993). In contrast, the July 2010 VA examiner had the benefit of a review of the Veteran's claims file, and provided a more detailed rationale than the October 2010 private physician's opinion. The July 2010 VA examiner also addressed the timing of the Veteran's hip symptoms and accurately noted that there were no significant service treatment records for his bilateral hip pain being related to his lumbar spine. The examiner noted that lumbar spine pain in all the documented notes was causing radiculopathy and that bilateral hip arthritis in no way would contribute to a radiculopathy of the lower extremities. The examiner also provided a rationale for his conclusions when determining that it was less likely than not that the service-connected lumbar spine disorder caused or aggravated the bilateral hip disability. For these reasons the Board finds the July 2010 VA examiner's opinion to be the most probative regarding the issue of whether the Veteran's current bilateral hip disability is secondary to his service-connected lumbar spine disability. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on the foregoing, the Board has placed greater probative weight on the VA opinion. Given that the most probative opinion is against a finding of a relationship between a bilateral hip disability and his service-connected lumbar spine disorder, the Board finds that service connection is not warranted. 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 bilateral hip disability is related to his service-connected lumbar spine disability. 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 bilateral hip symptoms; however, he is not competent to state that his bilateral hip disability is the result of his service or is a result of his service-connected lumbar spine disability. 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 claim, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Entitlement to service connection for a bilateral hip disability as secondary to his service-connected lumbar spine disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs