Citation Nr: 1311474	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  09-13 831	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for bilateral hip disability, including arthritis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Crohe, Counsel


INTRODUCTION

The Veteran served on active duty in the National Oceanic & Atmospheric Administration from October 1973 to November 1989 and the Navy from December 1989 to July 2006. 

This appeal arose before the Board of Veterans' Appeals (Board) from a rating decision issued in December 2006 from the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied service connection for bilateral hip arthritis.  The claims file was subsequently transferred to the jurisdiction of the Houston, RO.  

On his April 2009 VA Form 9, the Veteran indicated that he desired a Board hearing at his local VA office (Travel Board).  Accordingly, a January 2012 letter informed the Veteran that his hearing was scheduled in February 2012.  That letter, sent to the Veteran's last known address, was returned to the Board as undeliverable.  The Veteran did not appear at the hearing or provide an updated mailing address.  See 38 C.F.R. § 3.1 (q) (Notice means written notice sent to a claimant or payee at his or her latest address of record.).  The Veteran has a duty to keep VA apprised of his current address.  Jones (Raymond) v. West, 12 Vet. App. 98 (1998); Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  If he does not, VA is not obligated to "turn up heaven and earth to find him."  See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  The request for a hearing is considered withdrawn.  See 38 C.F.R. § 20.704 (If an appellant fails to appear at a scheduled hearing, and a request for postponement has not been received and granted, the case will be processed as thought the request for a hearing had been withdrawn.).   


FINDING OF FACT

Chronic hip disability did not have its clinical onset in service and is not otherwise related to active duty; hip arthritis was not exhibited within the first post service year.  


CONCLUSION OF LAW

A bilateral hip disability was not incurred or aggravated in active service, and arthritis may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  The United States Court of Appeals for Veterans Claims (Court) held that VA 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a).  Compliance with the first Quartuccio element requires notice of these five elements.  Id.  

Prior to initial adjudication of the appellant's claim, a VCAA notice letter was issued in March 2006.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.  A letter addressing the assignment of a disability rating and/or effective date, in the event of award of the benefit sought was issued in March 2008.  Dingess/Hartman, 19 Vet. App. at 490. 

In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction (AOJ) decision.  See Pelegrini, 18 Vet. App. at 121.  Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claims, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.  However, this was not prejudicial to him, since the claim was readjudicated after the appellant received the March 2008 notice letter and an additional supplemental statement of the case (SSOC) was provided to the appellant in March 2009.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

Duty to Assist

The Board concludes VA's duty to assist has been satisfied.  The appellant's service treatment records are in the file.  The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The Veteran was provided with a VA examination in March 2006.  The examination is adequate for the purposes of adjudication as it was conducted by qualified healthcare provider based upon review of the claims file, interviews with the Veteran, and clinical findings.  See Barr v. Nicholson, 21 Vet. App. 303 (2007). 

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. 

The appeal is thus ready to be considered on the merits.

II. Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. §3.303(b)(2012).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. §3.303(d) (2012). 

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"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

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).

The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

III.  Factual Background and Analysis

The Veteran asserts that he his hip pain began in service and has become progressively worse since that time.  See December 2007 Notice of Disagreement (NOD).  He indicated that while seeking treatment for his bilateral hip pain in service, X-rays were obtained and interpreted by radiologists as showing arthritis.  He was prescribed Celebrex.  See December 2007 NOD and April 2009 Form 9.  

Service treatment records reflect that in April 2001, the Veteran sought treatment for right hip pain.  May 2001 x-rays reportedly revealed osteophyte formation in the right hip.  The Veteran was diagnosed was probable right hip osteoarthritis (OA).  Subsequent treatment records included a past medical history or a diagnosis of arthritis in bilateral hips for which the Veteran was prescribed Celebrex.  On December 2005 retirement Report of Medical Examination, the spine and remaining musculoskeletal system were essentially normal on clinical examination; however, the examiner noted bilateral hip degenerative joint disease (DJD) in the summary section.  On the December 2005 retirement Report of Medical History, the Veteran indicated that he had swollen or painful joints and referred to his hips and knees.  It was reported that bilateral hip arthritis was diagnosed on x-rays in May 2001.  

On review of the Veteran's service treatment records, the May 2001 assessment of "Probable OA (R) hip" is not a definite diagnosis.  The left hip was normal during that evaluation.  The subsequent diagnoses of bilateral hip arthritis were not based on x-ray evidence of arthritis or a complete orthopedic work-up.  The subsequent reports of arthritis are based on clinical history, which is less than completely accurate.  

In March 2006, the Veteran was provided a VA examination to ascertain whether or not he had a current bilateral hip disability.  The examiner noted the history of bilateral hip pain that began in service.  X-rays of the hips taken at the time of examination were negative and normal.  The examiner found on examination that there was mild tenderness at the trochanteric bursa of the right hip.  However, this caused no apparent loss of function and no disability was noted.  The examiner found that there was no evidence on examination and x-rays of any arthritic changes and no disability was noted at this time.  

The Veteran has contended that service connection should be granted for arthritis of the hips.  The record demonstrates that arthritis was suspected in service and a diagnosis was carried since 2001; however, the diagnosis was never confirmed.  Moreover, on March 2006 VA examination report dated after the Veteran's separation from service, there was no showing that he had arthritis or any other chronic hip disability.  In fact, no chronic hip disability has been confirmed following an orthopedic work-up either in service or since then.  

The Veteran is competent to state that he had hip problems in service and relate his medical history; however, he is not shown to be a medical professional.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).   Therefore, he is not competent to state that he had pathology that is due to service.  Arthritis is not readily recognizable by a layman, such as varicose veins or acne.  Even medical professionals rely on computed tomography scans, x-rays, laboratory test results and other diagnostic tools to diagnose arthritis.  Thus, his assertions are not competent evidence to address the complex medical question of whether he has current degenerative findings of the bilateral hips.  Jandreau, 492 F.3d at 1376-77. His reports of a current bilateral hip disability have no probative value.  See id.  On VA examination in 2006, no bilateral hip disability, including arthritis was found.  The Board has considered the Veteran's reports of worsening pain; however, pain is not analogous to disability.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (the claimant was seeking service connection for a neck disability and an increased rating for a low back disability.  On the issue of service connection, the Court held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted.  Subsequently, the Federal Circuit dismissed the issue of service connection stating it was precluded from reviewing the factual determinations of the Board or the Court.) 

The preponderance of the evidence is against the Veteran's claim of service connection for bilateral hip disability, including arthritis and the claim is denied.


ORDER

Entitlement to service connection for bilateral hip disability, including arthritis is denied. 



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs