Citation Nr: 1313856 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 07-00 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a bilateral hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to October 1985. He also has an unverified period of service in the Army National Guard. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). FINDINGS OF FACT 1. The evidence of record shows that a bilateral hip disorder was noted on clinical examination at the time of the Veteran's entrance into service. 2. The evidence of record does not show that the Veteran's preexisting bilateral hip disorder was permanently aggravated beyond normal progression during any period of active duty. CONCLUSION OF LAW A bilateral hip disorder was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's October 2012 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Although the October 2012 letter was provided after the initial adjudication of the Veteran's claim, his claim was readjudicated in the January 2013 supplemental statement of the case. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. His records from the Social Security Administration are also of record. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided the Veteran with examinations in June 2004 and November 2004 to determine the etiology of his bilateral hip disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The November 2004 medical examination is adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's claim was remanded in December 2009 and September 2012 to provide the Veteran adequate notice of the duty to assist and to adjudicate the claim on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran was provided with adequate notice in the October 2012 letter, and his claim was adjudicated in the January 2013 supplemental statement of the case. The Board finds that there has been substantial compliance with its remands as the RO has completed the requested notice and adjudicative action. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service connection may be established for disability resulting from personal injury incurred or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-37 (1996). When a claim for service connection is based upon an injury which occurred during a period of active duty for training or inactive duty for training, presumptive periods and the presumption of sound of condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran claims that service connection is warranted for his currently diagnosed bilateral hip disorder. Specifically, he claims that he had a bilateral hip disorder prior to his enlistment in service and that this disorder was aggravated while he was on active duty. He also claims to have aggravated his preexisting bilateral hip disorder during his subsequent service in the Army National Guard. The Veteran's November 1977 enlistment report of medical examination reflects his history of bilateral slipped capital femoral epiphysis (SCFE) and bilateral hip surgery. Records associated with his enlistment include an April 1977 letter from his private physician, who reported that the Veteran underwent a right hip osteotomy in October 1975 and a left hip osteotomy in January 1976. On the November 1977 enlistment report of medical history, the Veteran reported having swollen or painful joints without identifying the joints affected. Thus, the evidence shows a preexisting bilateral hip disorder prior to the Veteran's enlistment into active duty service, and the presumption of soundness has been rebutted. 38 U.S.C.A. § 1111. Additional service treatment records document the Veteran's reports of bilateral hip pain during his active duty service. An October 1980 service treatment record notes the Veteran's history of bilateral hip surgery and includes his report of having hip pain. A November 1980 orthopedic consultation record includes the Veteran's report of remaining "symptom-free" since his enlistment three years prior. The associated clinical examination revealed limited motion of both hips from SCFE, which was noted as existing prior to service. The examiner recommended that the Veteran be given a permanent profile to save any future wear and tear on his hips. Subsequent service treatment records dated until October 1982 include the Veteran's report of hip pain with running, show objective evidence of decreased range of motion of the bilateral hips and reflect a diagnosis of synovitis. An May 1984 periodic medical examination revealed decreased range of motion of the hips. The Veteran's September 1985 separation report notes his history of bilateral osteotomy for his SFCE prior to service. The clinical evaluation did not reveal a diagnosis for the lower extremities. The Veteran reported having swollen or painful joints on the associated September 1985 separation report of medical history, but he did not identify the specific joints affected by this symptomatology. Service treatment records from the Veteran's reserve service are negative for reported symptomatology or diagnoses related to a hip disorder. On a January 1990 report of medical history, the Veteran's history of bilateral SCFE, with surgery, was noted. At that time, he reported having no problems since his surgeries. A June 2002 VA treatment record reflects the Veteran's report of having left hip pain for approximately six weeks after tripping while running during physical training for his reserve duty. An associated x-ray examination revealed degenerative changes in the left hip. An August 2003 VA treatment record includes the Veteran's reported history of SCFE at the age of 15. He reported experiencing bilateral hip pain that began one year prior, after participating in heavy physical activity while serving in the National Guard. The Veteran also reported that he fell off a "hi lo" earlier in 2003, which had also exacerbated his symptoms. A clinical examination revealed left hip degenerative joint disease likely resulting from SCFE as an adolescent. The examiner discussed with the Veteran his continued service in the National Guard. However, the examiner expressed concern of the high likelihood of progression, especially with the high demands on the hips from heavy labor and running long distances. The Veteran underwent a VA examination with respect to his claim in June 2004. He reported that he underwent surgery for a bilateral hip disorder prior to his enlistment into the military. The Veteran stated that he began to have problems with his hips approximately six or eight months after his enlistment into the military, for which he received physical therapy and was given a physical profile. The clinical examination revealed some residuals of SCFE, with evidence of degenerative arthritis in both hips. A November 2004 VA examination report includes the Veteran's reported history of a bilateral hip disorder and surgery prior to service and the onset of bilateral hip pain shortly after basic training. The Veteran stated that his pain had become worse since 2002. The clinical examination revealed a diagnosis of degenerative arthritis of both hips, left more than right, with limitation of motion. The examiner noted that the claims file was reviewed, including the Veteran's testimony. Based on this review and the examination findings, the examiner opined that it was "not likely" that the Veteran's preexisting hip condition was aggravated by his military service. The examiner stated that the changes noted on examination were natural progressive changes due to the Veteran's previous surgery and the anatomical changes of the hip joints. In support of his claim, the Veteran submitted a September 2006 letter from his private physician, M.W.R., D.O., who evaluated the Veteran in March 2006. The evaluation revealed pain in the left hip, more than the right, and x-ray evidence of severe arthritic changes. The physician noted the Veteran's history of SCFE as a child, with surgical intervention. Dr. R. stated that the Veteran's service treatment records had been reviewed, and noted the Veteran's report of numerous traumatic injuries during his military service. Based on this, Dr. R. opined that it was highly probable that the Veteran's condition was aggravated beyond the normal progression, with regard to his left hip pain and degenerative changes. According to an October 2006 letter, private physician M.L.S., D.O., examined the Veteran in September 2006, and the examination revealed degenerative arthritis of the left hip. The Dr. S. noted the Veteran's report of bilateral hip pain and stated that the Veteran's service treatment records and current treatment records were reviewed. Dr. S. stated that the Veteran's ongoing progression of hip pain could be related to the injuries he incurred in service or aggravated by the "services connected condition." The physician did not identify the condition that could have aggravated the Veteran's hip pain. As determined above, the presumption of soundness has been rebutted in this case. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The November 1977 enlistment report of medical examination shows that he had SCFE that resulted in surgery prior to his military service. However, the evidence shows that the Veteran's preexisting bilateral hip disorder was not aggravated by his military service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Although the service treatment records include the Veteran's reports of bilateral hip symptomatology, the evidence does not show that his preexisting bilateral hip disorder underwent a permanent increase in severity during service. After October 1982, the service treatment records are negative of any reported symptomatology or treatment specific for the Veteran's hips. Indeed, the September 1985 separation report of medical examination is negative for a diagnosed hip disorder. Temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). In this case, the probative medical evidence does not show permanent worsening of the Veteran's preexisting hip disorder during his active duty service. The November 2004 VA examiner opined that the Veteran's preexisting bilateral hip disorder was not aggravated by his military service. The November 2004 VA examiner attributed the Veteran's natural progressive changes to his previous surgery and the anatomical changes of his hip joints. The November 2004 VA examiner's opinion is highly probative as it is definitive, based upon a review of the Veteran's claims file and clinical examination of the Veteran, and supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299, 301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 70-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board similarly finds that the evidence subsequent to his active duty does not show a permanent worsening of the Veteran's hip disorder. The reserve treatment records are entirely negative for reports or diagnoses related to a hip disorder. Although the Veteran reported on subsequent VA examinations that he had hip pain after performing physical activity during his reserve service, there is no objective evidence of a hip disorder or any worsening of his preexisting bilateral hip disorder in the reserve treatment records. Again, the Board finds the November 2004 VA opinion to be the most persuasive evidence on this matter, as the examiner gave consideration to the Veteran's report of increased symptomatology when rendering the opinion in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. The Board finds March 2006 and October 2006 private opinions are of limited probative value. Specifically, neither private physician provided a detailed rationale to support their opinion or identify the underlying medical basis leading to their conclusions. Bloom v. West, 13 Vet. App. 185, 187 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Both physicians based their opinions on the Veteran's reports of having incurred multiple injuries during service, injuries of an unspecified nature which are not documented in the service treatment records. Id. The Board also points out that Dr. S.' use of the words "could" in the opinion relating the Veteran's current hip condition to service or to his "services connected condition" makes the opinion speculative in nature. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (finding that a doctor's statement framed in terms such as "could have been" is not probative); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that "may or may not" language by physician is too speculative). Thus, the private medical opinions are of a lesser probative value as compared to the opinion provided by the November 2004 VA examiner. In reaching the above determination, the Board has considered the Veteran's statements that his preexisting bilateral hip disorder was aggravated by his military service. The Veterans statements are competent evidence to report his bilateral hip symptomatology and to describe his military experiences. The Veteran's statements are not competent evidence to ascertain permanent aggravation of an orthopedic disorder as opposed to a temporary exacerbation, as this requires special medical training and expertise, and therefore, it is a determination "medical in nature" and not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds that service connection is not warranted for a bilateral hip disorder. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim of entitlement to a bilateral hip disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral hip disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs