Citation Nr: 1313740 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 04-03 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for the residuals of a muscle injury of the right leg. 2. Entitlement to service connection for a low back condition secondary to a muscle injury of the right leg. REPRESENTATION Appellant represented by: Sandra W. Wischow, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied entitlement to service connection for the above conditions. In July 2005, the Veteran provided testimony at a hearing before the undersigned at the RO. A transcript of the hearing is of record. In an October 2005 decision, the Board denied the Veteran's claims. The Veteran appealed the decision denying the claims to the United States Court of Appeals for Veterans Claims (Court). In a May 2007 Order, the Court granted a Joint Motion for Remand submitted by the parties in the case and vacated the Board's October 2005 decision. The Board remanded the claims for additional development in November 2007. The Board again considered and denied the claims in an April 2009 decision. The Veteran appealed the April 2009 decision to the Court. In an April 2010 Order the Court granted a Joint Motion for Remand submitted by the parties in the case and vacated the Board's April 2009 decision. After considering the Joint Motion, the Board in October 2010 remanded the claim for additional development as requested in the Joint Motion. As will be explained in detail below, although the Board does not finds that there was substantial compliance with the remand directive, the evidence is otherwise sufficient to grant the claim for residuals of a muscle injury to the right leg and another remand on that issue is not necessary. See 38 C.F.R. § 3.159(c)(2) and (3). Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). The issue of entitlement to service connection for a low back condition secondary to a muscle injury of the right leg is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran has been shown to currently have a tear of the anterior/superior labrum that is related to his active service. CONCLUSION OF LAW The criteria for a grant of service connection for residuals of a muscle injury of the right leg have been met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 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). In the present case, the RO sent a notification letter to the Veteran dated in August 2003. The record also includes the Veteran's service treatment records, private treatment records, VA outpatient treatment records, the reports of VA examinations, and lay statements. The Board has considered whether further development and notice under the VCAA or other law should be undertaken. Given that the decision below grants the claim, further development would not result in a more favorable result for the Veteran or be of assistance to this inquiry. Hence, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 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). Law and Analysis The Veteran seeks service connection for residuals of a muscle injury of the right leg. Specifically, he contends that he sustained an injury to his right hip while marching over rough terrain during service and that injury caused his current symptoms. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that service connection is warranted for residuals of a muscle injury to the right leg. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. 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). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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 a disease was incurred in service. 38 C.F.R. § 3.303(d). In the present case, a June 2011 note from B.M., M.D. reported a tear of the anterior/superior labrum. As such, the Veteran has a current disability. The remaining questions are whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus between the current disability and the inservice disease or injury. Service treatment records reflect the Veteran was treated for a sore right leg in February 1973. The pain was in the area of the right thigh extending upwards toward the hip and was present upon moving. No history of an injury to the leg was noted during that visit. Examination on that date reflected a distinct limp on walking and tenderness to palpation in the posterior right thigh. There was no radiation and the impression was possible muscle strain or cramp. The Veteran was subsequently treated with physical therapy through March 1973. A March 1973 consultation note included a history of an injury that occurred one week prior during a march over rough terrain, probably during a turn. X-rays of the hip were normal and did not reflect contusion of edema. There was pain and limitation of flexion of the right hip and the impression was acute strain of sartorius or pectineus muscle, questionable rectus femoris. Subsequent service treatment records fail to reflect complaints or treatment for the right hip or leg. In fact, a January 1975 annual examination described the lower extremities as normal. The Veteran denied a history of swollen or painful joints, cramps in the legs, arthritis, rheumatism or bursitis, and bone, joint or other deformity on his January 1975 report of medical history. Additionally, the November 1976 examination performed in connection with the Veteran's separation from service described the lower extremities as normal and noted no defects or diagnoses. The final element is competent evidence of a nexus linking the current labral tear to the inservice injury to the right hip. "Competent medical evidence" means evidence that is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran was afforded a VA examination in July 2008 to assess the nature and etiology of his hip condition. The Veteran reported that his foot got stuck in mud while in service resulting in a strain to the right hip that never resolved. The examiner noted that service medical records reported a right hip strain in February 1973 in basic training. He indicated that at that time x-rays were normal and further noted that the Veteran denied having a precipitating event. Subsequent examinations in 1975 and 1976 were normal and the next mention of a hip or leg problem was in 1973. The examiner noted that in December 2003 the Veteran saw a private physician and at that time mentioned the precipitating incident that he did not recall on the initial report in February 1973. The examiner explained this indicated that 30 years later the Veteran recalled exactly how the pain started whereas when the pain started he did not recall. After review of the record and examination the examiner concluded that the hip strain was not related to any incident that occurred in service. The Veteran's claims file was returned to the VA examiner in October 2008 for a more detailed rationale. The examiner reiterated his history as provided in the July 2008 examination and again concluded that the hip strain was not related to any incident that occurred in service. He explained he based his opinion on the absence of any indication the problem continued beyond 3 weeks after onset, the fact the Veteran was seen multiple times for other problems and never mentioned the hip, and the paucity or complete absence of any documentation of a hip problem between separation and 2003. The examiner further noted it was funny that at the time the pain began he did not recall how it happened but 30 years later he remember in detail what precipitated the hip pain. The Veteran submitted a September 2010 opinion of B.M., M.D. Dr. M. diagnosed other specified disorder of the joint, not otherwise specified, pelvis and bursitis/tendinitis of the hip region. Dr. M. related that orthopedic literature had given recent attention to femoral acetabular impingement as a long-term consequence of misdiagnosed groin strain. He explained that mechanical symptoms may represent labral pathology. Dr. M. opined that this could certainly be related to the groin injury sustained in 1973. Dr. M. suggested an MR arthrogram of the right hip to determine the presence of any significant labral pathology and determine if the changes were consistent with the criteria for femoral acetabular impingement. The Veteran was afforded another VA examination in January 2011. The examiner reviewed the claims file and service medical records and considered the Veteran's subjective history that the pain began during basic training when he had a twisting injury. After clinical examination and x-rays, the examiner concluded the Veteran had chronic right hip strain. He noted that the Veteran denied a precipitating event at the time of the February 1973 treatment for his right hip and examinations in 1975 and 1976 were normal. The Veteran's next treatment for the hip was in July 2003. The examiner opined the current right hip chronic strain was not related to active duty service based upon the absence of any clinical or objective findings that the problem continued beyond the 3 weeks after the onset. The examiner also noted the multiple visits for other problems without any complaint of hip problems until 2003, nearly 30 years after his separation. The claims file was returned to the January 2011 VA examiner for an addendum opinion in April 2011 to specifically address the Board's remand directives that the Veteran was competent to describe inservice symptoms and continuity of symptoms. The examiner, however, reiterated the opinion from January 2011 and concluded the right hip strain was not related to service based on the absence of clinical or objective findings the problem continued beyond the 3 weeks after onset and the lack of complaints of hip pain for nearly 30 years. The Veteran submitted a June 2011 opinion from B.M., M.D. Dr. M. diagnosed other specified disorder of joint, not otherwise specified, pelvis and indicated that the magnetic resonance imaging test (MRI) demonstrated a tear of the anterior/superior labrum. He explained that he previously recommended a MR arthrogram of the right hip and after conducting this test and considering the clinical evaluation he believed the primary symptomatology in the right hip and groin was secondary to moderate labral pathology. There was no evidence of significant degenerative changes within the hip. Dr. M. indicated that the labral pathology noted on the MRI scan and the symptoms the Veteran has historically complained about are usually due to a pedal twisting-type trauma. He indicated that literature supported this as a primary reason for misdiagnosis of groin pull. Dr. M. concluded that in the absence of any other significant trauma, the most probable reason for the labral injury occurred during the Veteran's military training and has been the pathology responsible for the groin pain that he has been followed for at VA since that time. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). While there are four negative VA examination opinions of record, all of these opinions contain the same inaccurate factual history. Specifically, all of the VA examinations indicate that the Veteran denied a precipitating event at the time of the February 1973 treatment. As the Court explained in Joint Motions for Remand and the Board pointed out in the most recent October 2010 remand, however, this statement ignores the fact that shortly after the injury, in March 1973, the Veteran explained he sustained an injury while marching over rough terrain. In the October 2010 remand the Board explained that the examiner's failure to reference the March 1973 record was a material omission that rendered the prior July 2008 VA examination and October 2008 VA addendum opinions inadequate. Accordingly, the Board remanded the claim for another examination and additionally requested the examiner comment upon the September 2010 private medical record. As the January 2011 and April 2011 VA examinations continued to ignore the March 1973 record and failed to comment upon the September 2010 private opinion, they are not adequate and do not substantially comply with the Board's October 2010 remand and the March 2010 Joint Motion. As the VA examinations are based upon an inaccurate factual premise, they are afforded no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). While the inadequate VA examinations would normally necessitate a remand for substantial compliance of the Remand directives, the record is otherwise sufficient to render a favorable decision and a remand would only further delay adjudication of the claim. See Stegall, 11 Vet. App. at 271; Dyment, 13 Vet. App. at 146-47; Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). Specifically, in this case, the Board finds the June 2011 private medical opinion to be particularly probative. The June 2011 private examiner reviewed relevant documents related to the inservice injury and post-service treatment, performed necessary testing, including the arthrogram, and provided a thorough rationale for his opinion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Thus, in reviewing the entire record, the Board finds there is evidence of a current disability, evidence of an injury to the right hip during service and a private opinion which links the two conditions. Accordingly, service connection for residuals of a muscle injury of the right leg is granted. 38 C.F.R. § 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a muscle injury of the right leg is granted. REMAND A preliminary review of the record reflects that further development is necessary prior to adjudication of the claim for service connection for a low back condition. The decision above grants service connection for residuals of a muscle injury of the right leg. The Veteran alleges that his low back condition is secondary to the service-connected residuals of a muscle injury to the right leg. The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a); See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. It is well-settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, without further clarification, the Board is without medical expertise to ascertain the relationship, if any, between any low back condition and the service-connected residuals of a muscle injury of the right leg. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Additionally, the record reflects the Veteran treated with a private physician at Berkley Family Medicine. Although the RO provided an authorization with the April 2011 Supplemental Statement of the Case and the Veteran did not respond, as the claim is being remanded the Veteran should be provided another opportunity to provide the private treatment records or complete a medical authorization so VA may request the records. The Veteran is reminded, however, that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also 38 C.F.R. § 3.159(c)(1) (noting that the claimant must cooperate with VA's reasonable efforts to obtain records, including by providing enough information to identify and locate the existing records and providing any necessary authorizations to release such records). The record also reflects treatment at VA facilities; however, the most recent records associated with the claims file are from February 2011. As such, updated records should be requested and associated with the record. 38 C.F.R. § 3.159; See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify all sources of treatment that he has received for his claimed disabilities and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. The RO should specifically request records from Berkley Family Medicine and updated VA records from February 2011 until the present. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After any requested records have been obtained, the RO/AMC should schedule an appropriate VA examination to determine the nature and etiology of the Veteran's claimed low back condition. All indicated tests must be accomplished. The claims folder must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. The examiner is requested to provide an opinion as to the following: a. whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed low back condition was incurred in or aggravated by military service. b. whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed low back condition was caused or aggravated (increased in severity) by the Veteran's service-connected residuals of a muscle injury to the right leg. If aggravation is found, the examiner is requested to discuss the baseline level of the low back condition prior to the onset of aggravation. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. 3. The RO/AMC shall then take such additional development action as it deems proper with respect to the claims. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs