Citation Nr: 1312045 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 07-30 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected residuals of a fracture of the pelvis and chronic low back strain. 2. Entitlement to an initial disability rating higher than 10 percent for the service-connected right leg radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. The appeal comes before the Board of Veterans' Appeals (Board) from October 2006 and March 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The October 2006 rating decision denied entitlement to service connection for right hip and right leg disorders, to include as secondary to service-connected chronic low back strain. The Veteran testified at a personal hearing before a Veterans Law Judge in June 2008; a transcript of that hearing is of record. In October 2008 and June 2010 the Board remanded the claims for additional development. In March 2012 the RO granted service connection for right leg radiculopathy and assigned an initial disability rating of 10 percent. In an April 2012 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the hearing was no longer employed by the Board and indicated that he was entitled to another hearing. The Veteran did not respond and accordingly the Board will proceed with the consideration of his case. In March 2013 the Veteran submitted to the Board additional evidence for consideration in connection with the claim for service connection for a right hip disability, along with a waiver of RO jurisdiction. 38 C.F.R. § 20.1304 (2012). The claims for increased ratings for residuals of a pelvis fracture and a lumbar spine disability, to include lumbar strain with degenerative disc disease, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The claim for entitlement to an initial disability rating higher than 10 percent for the service-connected right leg radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, degenerative changes of the right hip had its onset in service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for degenerative changes of the right hip have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for arthritis of the right hip. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran contends that he developed a right hip disorder due to an in-service injury. Specifically, he claims that the current degenerative changes of the right hip were caused by an in-service November 1967 accident in which the Veteran was pinned between the fork lift and another vehicle and sustained fractures to the right and left pubic bones. Alternatively, the Veteran asserts that he is entitled to service connection for a right hip disorder as a result of his service-connected residuals of a fracture of the pelvis and chronic low back strain. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists, and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). After a careful review of the evidence of record, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's right hip disability, diagnosed as severe degenerative changes of the right hip, had onset in service. The service treatment records documented a November 1967 accident in which the Veteran was pinned between the fork lift and another vehicle and sustained fractures to the right and left pubic bones. The Veteran was placed on complete bed rest for 4 weeks. He was also treated with muscle relaxants and analgesics. Subsequent treatment reports show complaints of back pain that radiated to the right lower extremity. The Veteran remained hospitalized for approximately 5 to 6 weeks after the accident. After service, a November 1978 VA orthopedic examination report contained complaints of pain that radiated down the back of his left leg and at times down the back of his right leg. The initial impression was residuals of pelvic fracture, 1967, with history of intermittent left low back pain at times radiating down the right or left leg. X-rays of the hips, pelvis, and the lumbar spine were reportedly normal. In an April 1990 VA pelvis and spine examination report, the Veteran complained of pain down both legs at times when standing too long and pain in the leg socket/pelvic area. In a VA spine examination report dated in December 1998, the Veteran reported pain in the right low back and hips, along with feeling pressure with motion of the right hip. The diagnosis was x-rays of the right hip that showed sclerotic changes of the right S1 joint, indicating possible post-traumatic arthritis which caused intermittent pain. On VA spine examination in January 2006, the Veteran stated that he had radiating pain of the right lateral hip. In a private treatment report in September 2006, Dr. R.P.C. noted the Veteran's reported history of right hip pain that had onset due to injuries incurred 30 years earlier when he was crushed between a truck and a forklift. At the time he was treated with traction, but no surgery. The Veteran reported ongoing daily right hip pain since that time. X-rays revealed severe degenerative joint disease of the right hip. April 2008 private chiropractic treatment records reference right hip symptoms. The Veteran testified during a June 2008 hearing that a private physician treated him for his claimed right hip disorder, as well as his back disorder. He also related feeling pressure on his right hip on motion. Initially, the Board must assess the Veteran's competence and credibility to assert that his right hip condition had onset in service. A Veteran is competent to testify to factual matters of which he had first-hand knowledge. The Board finds that the Veteran is credible and competent to report that he experienced right hip pain after he fractured his pelvis in the November 1967 in-service incident. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that lay evidence concerning recurrence of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's complaints of pain involving the pelvis, back and the right lower extremity, which presumably would include the area involving the right hip, were initially noted on his service treatment records. Since that time, the Veteran has consistently reported onset of right hip pain following the 1967 injury that resulted in a fractured pelvis. In this regard, VA examination reports and private treatment recorded a history of right hip pain that had onset due to injuries incurred in service when he was crushed between a truck and a forklift. The Board considers the Veteran's statements regarding ongoing symptoms since service to be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record, to include medical history recorded in the service and post-service VA and private treatment records. Caluza v. Brown, 7 Vet. App. 498 (1995). As a current right hip disability and an in-service event have been established, the only remaining requirement is a causal nexus between the two. On the question of medical causation, in a statement from a private chiropractor dated in June 2008, N.H., D.C. indicated that he had been treating the Veteran since May 2004 for a back disability, sciatica, and unspecified myalgia and myositis. He opined that the continued aggravation to the Veteran's condition was being caused by an injury that occurred in 1967 when he was pinned between a forklift and a truck and suffered trauma to his pelvis that involved the hips and spine. A VA examination and medical opinion report was obtained in June 2009. The examiner opined that the Veteran's current orthopedic problems were less likely as not caused by the in-service injury in 1967. The examiner thought that the cause of the pain was right hip degenerative arthritis. The physician's reasoning was that the Veteran had a normal examination and x-ray of the spine and pelvis on VA examination in 1978 and later presented with intermittent limp and back pain through the past years. In a statement in January 2010, Dr. R.P.C. reported that the Veteran had been his patient since 2006 at which time he related being crushed between a truck and a forklift 30 years earlier. He was treated with traction. Reportedly, the right hip had become increasingly painful and disabling throughout the years. The Veteran complained of severe right hip pain. Dr. R.P.C. opined that the most likely cause of the Veteran's significant degenerative changes in the right hip, as well as radiolucencies through acetabulum, would be the crush injury 30 years earlier. In this regard, Dr. R.P.C. explained that while the left hip also showed degenerative changes, these were significantly less than those seen in the right hip. Dr. R.P.C. explained that while it was not impossible to develop arthritis such as that noted in the Veteran's right hip, it was likely that the in-service accident played a significant role in the Veteran's current right hip degenerative changes. In August 2010, the Veteran underwent a VA examination performed by the examiner who previously evaluated him in June 2009. The Veteran reported increase hip pain and limping. The examiner noted that the in-service crush injury of the pelvis, which resulted in a fracture of the pubis ramis, was treated conservatively with bed rest and it healed. X-rays of the right hip revealed severe degenerative arthritis of the hip with total decreased joint space of the superior aspect of the hip joint and significant spurring of the lumbosacral spine throughout. The examiner stated that while he believed that the spine problem could be connected to the in-service crush injury, he doubted that the hip was at all related to the 1967 injury. In an addendum report in November 2011, the VA examiner reiterated that the opinion that it was less likely than not the Veteran's right hip condition was related to the in-service injury in 1967. The examiner explained that x-ray of the pelvis were normal on VA examination in 1978. Thereafter in a March 2012 addendum report, the examiner opined that there was no aggravation of the right hip disability as it was less likely than not directly related to the in-service injury, therefore, there could be no aggravation. The examiner added that the Veteran's degenerative joint disease was the result of the aging process and it was separate from the fractured pelvis. The examiner disagreed with Dr. R.P.C.'s opinion statement because the in-service fracture was in the form and center of the pelvis, involving the pubic ramis, which had no impact on the degree of degenerative disease of the right hip bone. Additionally, 1978 x-rays of the right hip were normal. The examiner concluded that the Veteran's right hip degenerative joint disease was age-related because it was also present in the left hip. While the examiner determined that the Veteran's right hip degenerative changes were age related as arthritis was also present in the left hip, the examiner failed to address the basis for Dr. R.P.C.'s opinion, that is, that the difference in severity of degenerative changes between the right and left hips supports a finding that trauma to the right hip contributed to the current disability. While 1978 x-rays of the hips were noted as normal, December 1998 x-rays of the right hip were indicative of possible post-traumatic arthritis and there is no evidence in the claims file of a history of trauma to the right hip during service or post-service discharge, other than the 1967 in-service crush injury. Additionally, the Board finds that the VA addendum opinion reports failed to adequately consider the Veteran's credible reports of recurrent right hip pain following the in-service pelvis fracture. The Board further finds that Dr. R.P.C. adequately explained that while it was not impossible to develop arthritis such as that seen in the Veteran's right hip, it was likely that the in-service accident played a significant role in the Veteran's current right hip disability because degenerative changes in the left hip, were significantly less than those seen in the right hip. Dr. R.C.P.'s opinion is consistent with other evidence of record, to include post-service discharge radiological findings such as the December 1998 x-ray report. The medical opinions from Dr. R.P.C. and N.H., D.C., place the evidence of a causal nexus between the in-service injury and the current right hip disability in relative equipoise. The Board finds that the medical opinions from Dr. R.P.C. and N.H., D.C., are competent and are probative with respect to the question of causal nexus in this case as they were definitive, based on the respective physician's medical experience and treatment of the Veteran. Further, each physician supported their opinion with a clear and well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Based on such equally compelling nexus opinions, both of which acknowledge that the Veteran's in-service crush injury, and the current radiological findings, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's service connection claim. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for right hip degenerative changes is warranted. 38 U.S.C.A. § 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for degenerative changes of the right hip is granted. REMAND As noted in the introduction, service connection for right leg radiculopathy was established by a March 2012 rating decision. A disability rating of 10 percent was assigned effective August 4, 2006. The Board is in receipt of a December 2012 correspondence from the Veteran wherein he asserts entitlement to a disability rating higher than 10 percent for the service-connected right leg radiculopathy. The Board accepts the Veteran's December 2012 statement as a Notice of Disagreement with the March 2012 rating decision. See 38 C.F.R. § 20.201 (2012). To date, however, the RO has not issued the veteran a Statement of the Case (SOC) with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: Issue a statement of the case which addresses the claim for entitlement to an initial compensable rating for right leg radiculopathy. Inform the Veteran of his appeal rights and that he must perfect a timely appeal for the issue to be considered by the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs