Citation Nr: 1312467 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-37 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to April 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned in February 2010. A transcript of that hearing has been associated with the claims file. The Board remanded the Veteran's appeal in April 2010 for additional development. The Veteran also appealed denials of service connection for lumbar and left knee disorders; however, during the pendency of this appeal, by an August 2011 rating decision, the RO granted service connection for these disabilities. Thus, as these issues were granted in full they are not in appellate status before the Board and need not be addressed further. The Board again remanded the Veteran's appeal in November 2011 for additional development. In an August 2012 decision, the Board denied the Veteran's claims for increased initial ratings for a left foot disability and a left ankle disability and remanded the claim of service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in April 2012, which addressed this additional evidence. FINDING OF FACT The preponderance of the evidence demonstrates that a left hip disorder, noted during the pendency of the appeal, did not originate in service, is not related to any incident during active service and is not directly related to or aggravated by any service-connected disabilities. CONCLUSION OF LAW The criteria for the establishment of service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the August 2005 rating decision, she was provided notice consistent with the requirements of the VCAA in February 2005. Additional VCAA letters were provided in May 2010 and November 2011. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received information in May 2010 and November 2011 about the establishment of disability ratings and effective dates if a claim of service connection was successful. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. In February 2010, the Veteran was afforded a Travel Board hearing before the undersigned. The transcript reflects that the Veterans Law Judge conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The transcript of the hearing reflects that the Veterans Law Judge identified the material issue - entitlement to a service connection for a left hip disorder, noted by the undersigned in the hearing as bursitis. The Veterans Law Judge also noted the current left hip bursitis, that the Veteran was service-connected for left ankle strain and left plantar fasciitis and asked whether any physician had related her left hip disorder to the left ankle or left plantar fasciitis. In response to the Veteran's reports that her physician, Dr. Drew Pearson, M.D., stated that the hip could be related to her left ankle and left plantar fasciitis, the undersigned asked the Veteran whether she could ask him to write a letter on her behalf and the Veteran was afforded an additional period of time to do so. As discussed below, the Veteran did not submit any further information. The Veterans Law Judge also noted that in order for the Board to determine whether her left hip was related to her service-connected left ankle or left foot disorder, competent medical evidence was needed. In addition, the Veteran was provided a VCAA notice in May 2010 in which she was asked to provide VA with any treatment records related to her condition or, in the alternative, to return the attached VA form 21-4142, Authorization and Consent to Release Information in order to have VA obtain the records on her behalf. Thereafter, no records or response was received with regard to additional treatment records. Thus, the Board finds that the hearing officer's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the hearing that was provided. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The February 2010 hearing was legally sufficient. The Board notes that the June 2005 and January 2010 VA examination reports and the September 2012 VA addendum report reflect that the examiners reviewed the Veteran's medical history, documented her current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the medical examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This case was remanded by the Board in August 2012 to provide the Veteran with an adequate VA opinion for the left hip disorder. As the VA examiner provided the requested opinion and complied with the Board's remand instructions in the September 2012 VA addendum report, the development requested by the Board's remand has now been satisfactorily completed. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where the Board's remand instructions were substantially complied with). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, adequate VA examinations, an adequate VA addendum and statements and testimony from the Veteran and her representative. The Veteran has not indicated that she has any further evidence to submit to VA, or which VA must obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and her representative have been accorded ample opportunity to present evidence and argument in support of her appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). The Merits of the Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. The Court has held that "this requirement 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 and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, recency is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). The Veteran contends that her service-connected left ankle and foot disabilities resulted in pain in her left hip and were the source of her left hip disorder. Service treatment reports are absent of any complaints or findings related to the left hip. In the June 2002 enlistment examination, there were no abnormalities of the lower extremities found upon clinical evaluation. In the June 2002 Report of Medical History, the Veteran did not report a history of problems with the left hip. At that time, she only noted having a history of bone, joint or other deformity, specified as double jointed elbows, and broken bones, specified as a fracture of the left fifth toe. An April 2003 Report of Medical Examination revealed no abnormalities of the lower extremities upon clinical evaluation and the Veteran did not report any history of problems with the left hip in either of the two separate April 2003 Reports of Medical History. A November 2003 Medical Board Examination clinical evaluation of the lower extremities reveled normal findings and no problems with the left hip were documented. A November 2003 Report of Medical History reflects that the Veteran reported a history of arthritis, rheumatism or bursitis, impaired use of the arms, legs, hands or feet, swollen or painful joints, and bone, joint or other deformity. However, the Veteran reported this history included having been told she had the beginning of arthritis, but it was never written in the medical records, and that she had problems since boot camp due to her foot and ankle. An April 2004 Report of Medical Assessment reflects that the Veteran reported that since her last medical assessment and physical examination her overall health remained the same. She also reported having no illnesses or injuries since her last medical assessment and physical examination that had caused her to miss duty for longer than three days; had not been seen or treated by a health care provider; admitted to a hospital or had surgery since that time. The Veteran reported she had not had any injury or illness while on active duty for which she did not seek medical care and she was not on medications. In a June 2005 VA examination of the spine, the Veteran reported that she developed low back pain in her last month in the Navy but did not receive treatment for it. She also reported that she then currently had pain daily in her lower back with occasional radicular symptoms into the left hip. A physical examination revealed left hip tenderness over the greater trochanter with no pain on movement. External rotation was to 35 degrees, internal rotation was to 30 degrees, and abduction was to 40 degrees, both passively and actively. Leg lengths were equal. The Veteran was diagnosed with trochanteric bursitis of the left hip. Private medical records from Dr. Drew Pearson, M.D., from January 2006 to March 2006 are absent of any complaints or treatment related to the left hip, although left foot, ankle and leg pain were reported. VA outpatient treatment reports from September 2006 to March 2012 reflect that the Veteran complained of pain the left foot radiating into her hip in January 2007 and she was treated for complaints of left hip pain and weakness on the left side, including into the hip flexors, in February 2010. During the February 2010 Travel Board hearing, the Veteran testified that her left ankle condition affected the entire left side of her body, including her back and hip, and that her left ankle was the source of her hip bursitis. She also reported that a physician at the Salem Foot Clinic, Dr. Drew Pearson, M.D., related her hip disorder to her left ankle and left plantar fasciitis and that no other physician besides Dr. Pearson had made this finding. The Veteran testified that she was currently treated for pain, including in the ankle, which radiated up to her hip and back. During a June 2010 VA examination, the Veteran reported that she developed problems after running in "boot camp" during her active service and was provided multiple examinations and testing, including a bone scan in June 2003 which demonstrated findings consistent with degenerative changes in the bilateral ankles. She also stated that, at that same time, she started developing pain in the left knee, left hip and low back. She stated that while she reported these symptoms, there was no documentation in the service treatment records that she was treated for those conditions. The June 2010 examiner found there was no isolated diagnosis of left hip bursitis. He found that it was clear from interviewing the Veteran and reviewing her claims file that she had chronic pain across her entire left side. However, he did not find that this had any major gross deformity or pathology along her left side as illustrated in x-ray, magnetic resonance imaging (MRI), and objective physical findings. While he did not assess her complaints as malingering, the examiner noted there were very limited objective findings and she demonstrated excellent range of motion. In a September 2012 VA addendum, the June 2010 VA examiner specifically found that a left hip disorder was less likely than not proximately due to or the result of the Veteran's service-connected left foot or left ankle disabilities. The examiner stated that it was less likely than not that the Veteran's 2005 diagnosis of left hip bursitis was caused or aggravated beyond its natural progression by the service-connected left foot or ankle disabilities. He explained that the Veteran did not have any major anatomic deformity of the left foot or ankle that scientifically could cause left hip bursitis or aggravate it beyond its natural progression. Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability, is not warranted. While the Veteran had a diagnosis of left hip bursitis in the June 2005 VA examination, there is no competent, credible or probative objective evidence of any left hip complaints, injury or treatment in service and the probative evidence of record does not demonstrate a nexus between the left hip bursitis noted in June 2005 and either her active service or her service-connected left foot or ankle disability. While not dispositive of the issue of whether service connection may be granted, the service treatment reports are absent of any treatment, findings or complaints related to the left hip during the Veteran's active service. There is no medical evidence which links the Veteran's left hip disorder to service or to her service-connected left foot or ankle disability. The Veteran is competent to state that her left hip pain began during her active service, which she reported in the June 2010 VA examination. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, she is not competent to diagnose or medically attribute any in-service symptom to a current disorder or to relate her current left hip disorder to any other service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The evidence does not demonstrate that the Veteran has the requisite medical competence to diagnose or identify a left hip disorder or identify any etiology. As in Jandreau, the Veteran's assertions of causality have been investigated by competent medical professionals and found without merit. Moreover, while competent, the statements regarding the onset of her left hip pain symptoms in service, which was reported in the June 2010 VA examination, are not credible evidence as they are internally inconsistent and are inconsistent with the contemporaneous medical evidence of record. The Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). As to some of the factors that go into making these determinations both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). Most recently, the Federal Circuit ruled that the principle of a continuity of symptomatology discussed in 38 C.F.R. § 3.303(b) does not apply to any disease or condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's left hip disorder, diagnosed as left hip trochanteric bursitis in the June 2005 VA examination, is not a chronic disease or condition recognized under 38 C.F.R. § 3.309(a). The earliest indication of a left hip disorder in the record was when the Veteran was diagnosed with left hip bursitis in the June 2005 VA examination. In fact, the Veteran's service treatment records do not reflect any complaints, treatment or findings of a left hip problem throughout her entire period of active service. In particular, the June 2002, April 2003 and November 2003 in-service examinations revealed no abnormalities of the lower extremities upon clinical evaluation. In fact, the one and only allegation of left hip pain beginning in service was made during the June 2010 VA examination. Therefore, the statements regarding the onset of her the left hip pain in service, are inconsistent with the contemporaneous medical evidence of record. Jandreau, supra. While the Veteran testified in the February 2010 Travel Board hearing that her physician, Dr. Drew Pearson, M.D., stated that the hip could be related to her left ankle and left plantar fasciitis, and that she would ask him to provide a statement regarding this relationship, no such information was received. Even after a VCAA notice was sent in May 2010, asking the Veteran to either provide VA with any treatment records related to her condition or, in the alternative, to return the attached VA form 21-4142, Authorization and Consent to Release Information in order to have VA obtain the records on her behalf, no records or response was received. Accordingly, the preponderance of the evidence is against the claim. Service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability, is not warranted and the appeal will be denied. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). CONTINUED ON NEXT PAGE ORDER Service connection for a left hip disorder, to include as secondary to a service-connected left foot or ankle disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs