Citation Nr: 1312475 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-00 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a right hip disorder, claimed as osteoarthritis, right greater trochanter (right hip disorder). REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from October 1997 to December 2005. This case was most recently remanded by the Board of Veterans' Appeals (Board) in January 2012 to the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO) to obtain additional treatment records and, if warranted, a current right hip examination and nexus opinion. Additional treatment records were subsequently added to the record, and a VA right hip evaluation with nexus opinion was obtained in October 2012. As additional treatment records and a VA evaluation of the right hip have been added to the claims files in response to the Board remand, there has been substantial compliance with the January 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). The Veteran and her husband testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in April 2010, and a transcript of the hearing is of record. Although VA treatment records dated through February 15, 2013 were added to the record and not referred to in the February 2013 Supplemental Statement of the Case, the records not previously on file do not involve treatment for a right hip disability. Consequently, the evidence is not "pertinent" and the case does not need to be remanded to the RO for consideration of this evidence. See 38 C.F.R. §20.1304(c) (2012). FINDING OF FACT The Veteran does not have a right hip disorder that is causally related to her active military service. CONCLUSION OF LAW A right hip disorder was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in June 2005, prior to adjudication, which informed her of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in a March 2006 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The case was thereafter readjudicated, including in a February 2013 supplemental statement of the case. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information she was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA evaluation with nexus opinion was most recently obtained in October 2012. 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). The Board finds that the October 2012 VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings. The opinion considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for the opinion stated. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of her claim, including at her April 2010 travel board hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from the Minnesota Department of Veterans Affairs. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to her complaints during service. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks service connection for a right hip disability. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment reports reveal that she complained in January 2001 of bilateral knee pain and some right hip pain, which started after she began running more. The assessments were chronic bilateral patellofemoral pain, and greater trochanter bursitis of the right hip. It was noted in March 2001 that X-rays of the right hip did not show any evidence of degenerative joint disease. It was reported in February 2005 that, in 2001, the Veteran had fallen eight feet off of a collapsible tent onto her back and that she had fallen off of a High Mobility Multipurpose Wheeled Vehicle while in Iraq in 2004, causing pain and spasms. She complained of daily low back pain with shooting pain into the right leg; low back pain was diagnosed. She complained in August 2005 of hip bursitis. The Veteran complained on VA evaluation in August 2005 of pain in the low back, knees, feet, and right hip. Examination revealed that she was able to move her hips without signs of fatigability, although she did complain of pain. X-rays of the right hip was noted to appear fairly normal. The diagnoses included right greater trochanter. A May 2006 rating decision granted service connection for intervertebral disc syndrome of the lumbar spine, with radiculopathy, and for patellofemoral pain syndrome of each knee. VA treatment records for February 2007 reveal a past medical history that included right greater trochanteric bursitis. It was noted that the Veteran had been given steroid injections. The Veteran complained on VA joint evaluation in June 2007 of popping, grinding, and clicking of her right hip. She denied locking, swelling, giving way, and stiffness. She had flare-ups 1-2 times a week, produced by walking too far, which she treated by taking the medication that she had been given for his back disorder. It was noted on examination that she was able to sit comfortably with her hips at 90 degrees of flexion; there was no loss of motion on repetitive testing. There were no symptoms to the greater trochanteric region. The examiner concluded that the right hip bursitis in service had resolved and that a current right hip examination, which included X-rays, was normal. It was noted in VA outpatient treatment reports for September 2007 that the Veteran had come in to transfer her care from the Tomah VA Medical Center (MC) to the Minneapolis VAMC. Her two major concerns were dermatitis of the right foot and her weight. According to medical reports from the Tomah VAMC, her medical problems included right hip pain secondary to osteoarthritis and trochanteric bursitis. General physical evaluation did not include any reference to the right hip. The assessments included right hip pain secondary to trochanteric bursitis and possibly some arthritis. The Veteran testified at her travel board hearing in April 2010 that she injured her right hip in a fall in service and that she reinjured the hip in 2009 when she fell down a flight of stairs. The Veteran's husband also testified in support of her claim. The Veteran complained of right hip discomfort on VA physical evaluation in September 2010; all range of motion was normal. It was noted that X-rays of the right hip were within normal limits. Based on review of the claims files and examination of the Veteran, the examiner concluded that there was no objective evidence of right hip disability. According to an October 2012 VA hip evaluation, which includes a review of the Veteran's medical history, the Veteran complained of chronic right hip pain, level 3/10, which increased when she got out of a chair or stood in one position for at least 3-4 minutes. The Veteran had less right hip movement than normal; pain on movement; and interference with sitting, standing, and/or weight bearing. Muscle strength was normal in the right hip. There was tenderness to palpation along the superior aspect of the right greater trochanter. After review of the claims files and examination of the Veteran's right hip, it was concluded that there was no credible pathologic diagnosis of right hip disability, no evidence of osteoarthritis of the right greater trochanteric, and no evidence of right greater trochanteric bursitis. The examiner noted that despite reduced range of motion associated with pain, there was no evidence of ligamentous instability; and despite tenderness to palpation along the right greater trochanter, there was no physical evidence of bursal enlargement in association with this tenderness. VA treatment reports dated through February 2013 contain complaints of right hip pain, but they do not contain an objective finding of right hip disability. The above medical evidence does not include objective evidence showing that the Veteran has a current right hip disorder related to service. Although she complained of right hip pain in service, and bursitis was diagnosed, there was no postservice medical evidence of a chronic right hip disorder on VA evaluations in August 2005, June 2007, September 2010, and October 2012. While the assessments on VA evaluation in September 2007 include right hip pain secondary to trochanteric bursitis and possibly some osteoarthritis, this evaluation did not include physical examination of the right hip, X-rays, or a scan. In fact, X-rays in service and after discharge have not shown any evidence of osteoarthritis. As noted above, despite some limitation of motion and tenderness to palpation of the right hip in October 2012, the examiner did not find any objective evidence of a right hip disorder. Consequently, service connection for a right hip disorder is not warranted. The hearing testimony and lay statements from the Veteran and her husband have been taken into consideration in this decision. Although the Veteran is competent to report her subjective hip symptoms, such as pain, she is not competent to diagnose herself with a hip disability other than pain, and is not competent to provide an opinion as to etiology. She has not been shown to have medical training. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving bursitis or osteoarthritis. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the Veteran testified in April 2010 that she has had a right hip disability since a fall in service, the medical evidence of record does not support her contentions. The right hip bursitis in service was determined to have resolved. X-rays of the right hip in service and after discharge do not show any musculoskeletal abnormality. As noted above, it was determined by VA examiners, after review of the claims files and physical examination of the Veteran, that, despite the Veteran's continued complaints of right hip pain, there was a lack of objective evidence of a chronic right hip disorder in service or after service discharge. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Board would note that pain alone, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. 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). Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connection claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right hip disorder is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs