Citation Nr: 1312978 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-49 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2011, the Board remanded these issues to the RO via the Appeals Management Center (AMC) for additional development. The issues have properly been returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current right shoulder disorder, diagnosed as right shoulder strain, had onset during his active service. 2. The Veteran's current right hip disorder, diagnosed as right hip strain, did not have onset during his active service and was not caused by an event, injury, or disease during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder have been met. U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a right hip disorder have not been met. U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims 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). In the instant decision, the Board grants the Veteran's appeal as to the issue of entitlement to service connection for a right shoulder disorder. Hence, even assuming arguendo that VA did not meet its duties to notify and assist with regard to that claim, such failure is harmless error. As such the Board need not discuss these duties with regard to that claim. 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2008. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veterans service and VA treatment records are associated with the claims file. He has not indicated treatment for his right hip by a private treatment provider. VA provided a relevant compensation and pension (C&P) examination of the Veteran's right hip in July 2012 and obtained a relevant medical opinion. A report of that examination documents a detailed description of all relevant history, to include his service treatment records, and personal statements and history, and the examiner described all findings in detail. The examiner provided a sufficient explanation for his conclusion that there was no nexus between the Veteran's service and his current right hip findings. Therefore, the Board finds the examination and opinion to be adequate. See 38 C.F.R. § 3.159(c)(4); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) ( explaining that an adequate medical opinion is one based on consideration of the veteran's prior relevant history, describes the disability in sufficient detail, and is supported by an analysis that the Board can consider and weigh against contrary opinions examination and obtained). In June 2011, the Board remanded these issues, directing the RO/AMC to request that the Veteran identify all private and VA medical care providers of relevant treatment since service, and directing the RO/AMC to conduct any additional development deemed proper and then readjudcation the issues on appeal. In July 2011, the AMC sent a letter to the Veteran consistent with the Remand instruction, obtained additional VA treatment records, and readjudicated the claims on appeal in September and October 2012 Supplemental Statements of the Case. The Board thus finds that there has been compliance with its June 2011 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran contends that he currently has disabilities of his right shoulder and right hip due to a fall when he was climbing in a tank during active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2012). II.A. Service Connection - Right Shoulder Disorder Service treatment records document that in August 1977 the Veteran complained of a sore right shoulder, reporting that he injured it the previous evening. Objectively, there was mild tenderness over the right glenohumeral joint. Diagnosis was mild strain. An October 1977 note documents that he complained of chronic right shoulder dislocation with two episodes occurring the previous night. Examination again revealed mild pain over the right glenohumeral joint. In May 1979 he complained of right shoulder pain of one day duration. Diagnosis was probable temporary tenosynovitis. In July 1979 he again reported symptoms of his right shoulder and was assessed with a strain. A report of a March 1980 medical examination, conducted just prior to separation from active service, documents a normal clinical evaluation of his upper extremities. In an associated report of medical history, the Veteran checked a preprinted option to indicate that he either then had or had previously had painful or trick shoulder or elbow. Noted on that form was that both shoulders "pop" out of joint with overhead throws. In his July 2009 notice of disagreement, the Veteran reported that he injured his right shoulder during service, had self treated the condition since separation from service, and had received treatment for the condition at the VA Medical Center (VAMC) in St. Louis, Missouri. There are records of treatment at that VA facility for numerous conditions; two treatment notes from March 1982 with the rest of the records from February 1995 to the present. A March 1982 medical certificate documents his report of painful left and right shoulders. He reported that he dislocated the left shoulder playing ball that weekend and complained of pain in the right shoulder. He claimed he had dislocated the right shoulder during service in 1977 in a slip and fall. He reported that the right shoulder dislocated of and on, especially when lifting heavy objects or when putting his arm in an overhead position behind his head. X-rays showed the shoulder was normally aligned. An August 1992 VA examination conducted with regard to a claim of entitlement to service connection for a left shoulder disorder, documents the Veteran's report that he had just bruised his right shoulder when he fell off of the tank and had no problems with the right shoulder as of August 1992. In April 1999 he reported right arm pain below the elbow but the note states that he had no shoulder pain. The next report of right shoulder pain is found in February 2010 VA treatment notes. That report was made in the context of vocational rehabilitation/ compensated work therapy (CWT). He did not report any recent injury; rather he reported that the symptoms were due to an injury during service and that he had filed a claim for VA service-connected compensation for the symptoms. He complained of right shoulder pain in August 2011. X-rays that month showed no evidence of joint or bone abnormality. In July 2012, the Veteran underwent a VA orthopedics examination. The examiner recounted a detailed history of the Veteran's right shoulder symptoms and treatment as obtained from the claims file and interview with the Veteran. In that interview the Veteran related that since his injury in 1977 he has had symptoms of his right shoulder, including pain. The examiner diagnosed right shoulder strain. He offered an expert opinion that based on the Veteran's history, it is at least as likely as not that his in-service shoulder injury is related to his current shoulder condition. He explained that this conclusion was based on the nature of the in-service right shoulder injury. Of record is the report of an August 2012 VA MRI study of his right shoulder. The MRI showed mild tendinopathy in the right supraspinatus tendon, a lesion in the glenoid, a possible tear of the glenoid labrum, and fluid in the right shoulder bursa consistent with bursitis. Provisional diagnosis was pain in the shoulder joint region. In an August 14, 2012 C&P examination note, the examiner stated that x-ray and MRI studies of the right shoulder had been conducted following the July 2012 examination and the examiner stated that his diagnosis of right shoulder strain and his opinion that this was related to his in-service shoulder injury remained unchanged. After considering this evidence, the Board concludes that service connection for right shoulder strain is warranted. There is in-service documentation of a right shoulder injury with symptoms present at the time of the injury and up to when he was separated from active service. He has a currently diagnosed right shoulder condition - right shoulder strain and the July 2012 opinion provides expert evidence of a nexus between the in-service injury and his current right shoulder strain. The Board finds that the evidence favorable to a grant of service connection outweighs the evidence unfavorable to a grant of service connection. For these reasons, his appeal as to entitlement to service connection for a right shoulder disorder must be granted. II.B. Service Connection - Right Hip Disorder January 1978 service treatment records document the Veteran's report that he fell down three steps and injured his right hip. Diagnosis was contusion of his right hip, x-rays showed no fracture; he was treated with crutches and bed rest and told to return to clinic for follow-up. There are no further reports of symptoms, treatment, or findings involving his right hip during service. The March 1980 report of medical examination indicates a normal clinical examination of his lower extremities and there is no indication in the associated report of medical history that he had any symptoms of his right hip at separation from service. The first post service report of pain of either hip is found in February 2010 VA treatment notes. At that time he reported left hip pain. These reports were made in the context of vocational rehabilitation/ compensate work therapy (CWT). He did not report any recent injury; rather, he reported that the symptoms were due to an injury during service and that he had filed a claim for VA service-connected compensation for the symptoms. January 2011 VA physical therapy notes document his report of right hip pain and of injuring his right hip during service when he slipped climbing on a tank. He reported that he "dislocated" his hip. A December 2011 x-ray study of his right hip was negative. Of record is an August 2012 VA treatment note documenting that the Veteran came to clinic for routine follow-up reporting that he had right hip pain that began one month earlier. He denied any trauma or injury, reporting that his right hip just started hurting. In July 2012, the Veteran underwent a VA orthopedics examination. On the first page of the report, the examiner stated that "[t]he Veteran does not have a diagnosed hip condition." The examiner recounted a relevant history stating that a service treatment record entry from January 1978 documented a contusion of the right hip after a fall down steps and the next mention of his right hip in medical records is in December 2010 at the VA facility. Also noted was the Veteran's report in the physical therapy note that he hurt his hip while climbing on a tank. The examiner indicated that he had reviewed the December 2010 x-rays of the Veteran's right hip and they were completely negative. The examiner ordered an MRI of the hip. The examiner stated that the Veteran's history of pain onset was inconsistent as service treatment records document a fall down steps in July 1978 but the Veteran reported in that he injured his hip falling from the tank in 1977. The examiner stated that he was unable to make a nexus connection with the Veteran's episodes of pain in service and the current findings. He stated that he would discuss this again if the MRI suggested some change in his opinion. Of record is the report of an August 2012 MRI study of both hips. The report documents that both hips were normal. In an August 14, 2012 C&P examination note, the examiner stated that x-rays and MRI had been conducted for his right hip since he examined him in July 2012. The examiner stated that the studies of his right hip were negative and his diagnosis remained unchanged. He referred to the diagnosis as "[r]ight hip strain" and stated that the opinion that he was unable to make a nexus connection with the in-service incident and episodes of pain and current findings of the Veteran's right hip. The Board reasonably reads this opinion as a negative nexus opinion; i.e. that there is no connection between any current disorder of the Veteran's right hip and his active service. Here, the rationale for the opinion is brief, but adequate. The examiner noted the inconsistency of the Veteran's onset of pain and that the medical record was silent with regard to his right hip until 2010. These support the conclusion that there is no nexus between the right hip strain and the Veteran's active service. Under the facts of this case, the Board finds the reference to silence in the medical record as to right hip problems until 2010 significant. Here, there is one mention of a hip condition in January 1978 and that is for a contusion. There is no further mention of right hip symptoms in service treatment notes, but those notes include several reports of his right shoulder symptoms. It follows that as he reported right shoulder symptoms, if he had any right hips symptoms he would have sought treatment. Also significant is that there are reports of numerous symptoms in the VA treatment records and those record span most of his post service history, but the records did not mention his right hip until 2010. Consideration of the inconsistencies in the Veteran's report is also a logical basis for the examiner's conclusion. In a February 2013 Post-Remand Brief, the Veteran's representative pointed out that the July 2012 examination report first notes that the Veteran has no right hip disability and then later provides that he had a right hip strain. His representative then stated that if the Board is unable to grant service connection for a right hip disorder, it should consider a remand to obtain clarification of the correct diagnosis of the right hip disorder. The Board has considered this argument but finds that it does not support a determination to remand the matter. Prior to a relevant history section, the examination report states "[t]he Veteran does not have a diagnosed hip condition," but after the examination findings and December 2010 x-ray study was reviewed, the examiner diagnosed right hip strain. Furthermore, after an additional x-ray study and MRI study, the examiner reiterated that the diagnosis was right hip strain. From this evidence the Board has found that the diagnosis provided by the examiner is right hip strain. The earlier statement of no right hip diagnosis can be read as a statement that prior to the examination there was no post-service diagnosis of the right hip, a reading that is consistent with the record. The Board is denying this appeal because the preponderance of evidence is against a finding that the Veteran's current right hip strain had onset during or was caused by his active service. There is thus no need to remand the case for clarification of the diagnosis. Also considered is the Veteran's assertion that his current right hip strain is related to service. To the extent that the Veteran's statement that he self treated his right hip strain implies that his right hip strain has existed since service, the Board affords that statement very little weight. He reported the right shoulder problem several times after the October 1977 injury, at separation from active service, and to VA in 1982, facts that tends to show that the Veteran would report musculoskeletal symptoms in the context of seeking VA treatment or treatment during service, if he had such symptoms. Therefore if he had right hip symptoms, the Board would reasonably expect to find some report of those symptoms after the January 1978 injury. To the extent that the Veteran offers his unsupported opinion that his right hip strain had onset during service, the Board finds that his opinion is not competent evidence. The Veteran has not demonstrated that he has expertise in medical matters and therefore his opinion is considered to be that of a layperson, or non-expert. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit provided examples of conditions subject to and not subject to layperson evidence, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the U.S. Court of Appeals for Veterans Claims has explained that non-expert witnesses are competent to provide evidence only to that which is within their own personal knowledge; i.e., that perceived through their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). From these cases, the Board concludes that factors to be considered when determining if layperson nexus evidence is competent evidence are the complexity of the nexus question and the extent to which observation and personal knowledge of a layperson can be employed to make the nexus determination. Here, whether a contusion from a fall during service resulted in a right hip strain many years later is not subject to an answer based on personal observation or the personal knowledge of a layperson. Furthermore, as there was no fracture of the hip, as evidenced by the January 1978, the Board does not find the possible relationship between his January 1978 contusion and his current hip strain to be a simple one. For these reasons, the Board concludes that the preponderance of evidence is against a finding of a nexus between his in-service right hip injury and his currently diagnosed right hip strain. The appeal as to this issue must therefore be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right shoulder disorder is granted. Entitlement to service connection for a right hip disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs