Citation Nr: 1312637 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-39 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a bilateral hip disorder, as secondary to service-connected lumbar spine disability or other service-connected disability. REPRESENTATION Appellant represented by: Ted Sumner, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from May 1966 to August 1969, and from July 1972 to May 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a December 2011 Travel Board hearing before the undersigned Veterans Law Judge in Portland, Oregon. A transcript is associated with the claims folder. At the hearing, the Veteran specified that he did not wish to claim service connection for a bilateral hip disorder on a direct basis, but only as secondary to his service-connected back disability; thus, the issue on appeal has been limited by the Veteran to a secondary service connection theory. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's current bilateral hip disability to include mild degenerative changes is not due to or related to the service-connected degenerative disc disease of the lumbar spine and is not caused or permanently worsened in severity by the service-connected degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hip disability manifested by mild degenerative changes, as secondary to the service-connected degenerative disc disease of the lumbar spine, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notice letters to the Veteran in March 2007, prior to the initial adjudication of the claim, and in June 2008. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In March 2007, the Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Private medical records are associated with the claims file. VA provided an examination in 2012 to obtain medical evidence as to the nature and likely etiology of the claimed bilateral hip disability and whether the disability was caused or aggravated by the service-connected lumbar spine disability. The examination is adequate because it was performed by a medical professional based on review of claims file and a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examiner offered an opinion and provided a rationale for the opinion provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor representative has challenged the adequacy of the examination obtained for this issue. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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. In this case, during the December 2011 Board hearing, the VLJ specifically noted the issue on appeal. Then, having heard the Veteran's evidence, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Both the VLJ and the Veteran's attorney specifically queried the Veteran regarding any evidence the Veteran might have indicating that the hip disability was related to or caused by the service-connected lumbar spine disability. The VLJ subsequently determined that a VA medical examination was necessary to assist in determining the etiology of the Veteran's hip disability and the Board subsequently remanded the claim. In this case, the VLJ substantially complied with the requirements of Bryant. For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the disorder at issue is arthritis, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112 , 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Service connection can be granted for a disability that is aggravated by a service-connected disability. Compensation can be paid for any additional impairment resulting from the service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Except as provided in 38 C.F.R. § 3.300(c) (claims for secondary service connection based on the effects of tobacco products received after June 9, 1998), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 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 progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level." Id. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis of Service Connection for Hip Disorder The Veteran contends that he has a current bilateral hip disorder, characterized solely by pain, and that the bilateral hip disorder was caused or aggravated by his service-connected back disability. Specifically, at the December 2011 Board personal hearing, he testified that, because of his back condition, his gait has been altered for the past 15 to 20 years, in that he leans to the right, and this has caused bilateral hip pain. The Veteran has service connection for a number of orthopedic disabilities. Service connection has been granted for lumbar spine degenerative disc disease with muscle strain, effective from February 14, 2007; cervical spine degenerative disc disease with muscle strain, effective from February 14, 2007; right deltoid hypoesthesia (C5) (associated with cervical spine degenerative disc disease), effective from October 14, 2009; left shoulder degenerative joint disease with impingement and rotator cuff tendinopathy, effective from February 14, 2007; right shoulder degenerative joint disease with impingement and rotator cuff tendinopathy, effective from January 14, 2007; right ankle strain with degenerative changes and history of fracture, effective from February 14, 2007; right hip and buttock radiculopathy (associated with lumbar spine degenerative disc disease), effective from October 14, 2009; and left upper extremity radiculopathy (associated with cervical spine degenerative disc disease), effective from October 14, 2009. Private treatment records document complaints of hip pain in June 2002, when the Veteran reported pain over multiple joints, including the fingers, elbows, hips, and knees. The treating physician assessed joint pain of unclear etiology. The Veteran injured his left hip in July 2004 when he fell while getting out of his pick-up truck and landed on the left hip on the concrete floor of his garage. On physical examination, there was pain to palpation just behind the greater trochanter on the left, and some pain with internal rotation. The Veteran had full extension, but pain with flexion, and stopped before full flexion. An X-ray study of the left hip was negative, and the doctor assessed left hip pain. The Veteran injured his left hip again in June 2009, when he fell eight feet off of a pull-down ladder leading to the attic and landed on his left hip, shoulder, and chest wall. Range of motion of the hip was limited secondary to pain, and an X-ray study showed mild bilateral symmetric degenerative disease of the hips. The Board finds that the weight of the competent and credible evidence establishes that the Veteran's current bilateral hip disability is not caused or aggravated (permanently worsened in severity) by the service-connected lumbar spine disability. The Veteran was afforded a VA examination in December 2012. The VA examiner reviewed the Veteran's medical history pertinent to the claimed hip disability and examined the Veteran. The Veteran reported that he injured his back in service and he had constant pain in the low back. He stated that he did not have radiation of the pain to the legs or buttocks. The Veteran reported that he first noted hip pain 14 to 16 years ago, and that he saw his primary care physician. The Veteran did not recall if he had a hip x-ray or whether there was a diagnosis of arthritis. The Veteran reported that he currently took vicodin and oxycodone when his back pain was more than baseline. The diagnosis was mild degenerative changes of both hips and sacroiliac joint. The VA examiner in December 2012 opined that the current hip disability was not due to or caused by the service-connected back disability and the hip disability was not aggravated by the service-connected back disability or any other service-connected disability. The VA examiner noted that the degenerative changes in the hip were mild. The VA examiner explained that the mild degenerative changes of the hips and sacroiliac joints have not occurred due to alteration of the gait from the back disability because at present the hips and sacroiliac joints were radiographically fairly symmetric. The examiner stated that the mild degenerative changes of the hips and sacroiliac joints are due to changes of aging that are seen in the population at large. The examiner indicated that examination of the hips was normal, and further opined that there was no impact on employability. The Board finds that the weight of the competent and probative evidence establishes that the Veteran's hip disorder is not proximately due to or aggravated by the service-connected lumbar spine disability or any other service-connected disability. The Board finds the November 2012 VA medical opinion to be highly probative evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The medical opinion has high probative value because the VA examiner, a medical doctor, relied on sufficient and accurate facts and data and provided a rationale for the respective opinion. The VA examiner also considered the Veteran's report of medical history pertinent to the hip and the report of his symptoms and the VA examiner reviewed the claims file in connection with the examination. For these reasons, the Board finds the VA medical opinion to have high probative value and establishes that the Veteran's current hip disability is not caused by or aggravated by the service-connected lumbar spine disability or other service-connected disability. The Veteran asserts the hip disability is caused by the service-connected lumbar spine disability. At the hearing before the Board in December 2011, the Veteran stated that he first began to have hip problems about 15 years ago. He believed his hip disability was due to his back disability because of the nature of how he hurt his back in service. The Veteran stated that he injured the bottom three vertebras in his back in service when injured when participating in rescue training. The Veteran asserts that, because of the nature of his back injury, he walked differently and he favored the right side and leans to the right. He stated that he walked this way for 15 to 20 years, and he believes that this caused his current hip disability. The Veteran is competent to report observable symptoms such as hip pain, stiffness, or an altered gait; however, without the requisite medical training and expertise, the Veteran is not competent to render a medical opinion as to the etiology of a complex orthopedic disability such as degenerative changes (arthritis) to the hip and sacroiliac joints. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Arthritis is not readily observable by a lay person, as the process is internal and not visible, the symptoms of pain and stiffness of a joint may be part of an arthritic process but are not the basis for a diagnosis, diagnosing arthritis is based on both complaints and specific clinical testing such as X-rays that the Veteran is not competent to conduct or interpret, and offering an opinion regarding the etiology of arthritis requires knowledge of various known causes of arthritis, including aging, and how the arthritic process progresses, none of which the Veteran has indicated he is aware of. For these reasons, the Board finds that the Veteran providing a medical opinion as to the cause of arthritis of the hips falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes 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"). The Board finds that the Veteran's statements as to the etiology of the hip disability are not competent and, therefore, have no probative value. The weight of the competent and credible evidence demonstrates that the current hip disability manifested by degenerative changes of the hip and sacroiliac joints is not caused or aggravated (worsened in severity) by the service-connected lumbar spine disability. The competent medical evidence of record establishes no relationship between the Veteran's current hip disability and the service-connected lumbar spine disability or other service-connected disability. The competent medical evidence establishes that the Veteran's current hip disability is not aggravated by the service-connected lumbar spine disability or other service-connected disability. In summary, the weight of the competent and credible evidence is against the Veteran's claim and service connection for a hip disability as secondary to the service-connected lumbar spine disability or other service- connected disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied since there is no approximate balance of the evidence for and against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a bilateral hip disability manifested by degenerative changes, as secondary to service-connected lumbar spine or other service-connected disability, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs