Citation Nr: 1314231 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 05-19 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral hip disability, to include avascular necrosis (AVN) and degenerative joint disease (DJD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to May 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a bilateral hip disability. In February 2008, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board initially reopened and remanded the Veteran's claim for a bilateral hip disability in April 2008, and remanded the claim again in July 2009. The Board then denied the Veteran's claim in a February 2010 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2010 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the February 2010 decision as to that issue. The Court granted the JMR in a December 2010 Order. The Board remanded the claim in September 2011, and sought a VHA expert medical opinion in September 2012. The claim now returns to the Board for further consideration. In March 2013, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. FINDING OF FACT The most probative evidence fails to link the Veteran's hip disabilities to service. CONCLUSION OF LAW The requirements for establishing service connection for bilateral hip disabilities have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in letters dated October 2003 and April 2008, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The April 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in June 2012. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (VA can cure a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's available service treatment records, VA treatment records and examination reports, private medical records, and hearing testimony. Additionally, there is substantial compliance with the Board's prior remand instructions. The Board's April 2008 instructions included providing additional VCAA notice; requesting information regarding any additional treatment records from the Veteran, including from Dr. J. Henry and Peach Tree Orthopedic Clinic; obtaining additional VA treatment records; and providing a new VA orthopedic examination. In response, the Appeals Management Center (AMC) sent the Veteran the April 2008 letter that requested information regarding any additional treatment records, including from Dr. Henry and Peach Tree Orthopedic Clinic, and provided notice of what information and evidence was needed to substantiate his claim for service connection, as well as how disability evaluations and effective dates are assigned. The RO also obtained the Veteran's VA treatment records, and provided him with a new VA orthopedic examination in February 2009. The Board's July 2009 instructions included providing the Veteran with the necessary release forms to allow VA to request records from Dr. Taylor and Dr. Goodman. In response, the RO provided the Veteran with a notice letter and the necessary release forms in August 2009. The Board's September 2011 instructions included requesting information regarding any additional treatment records from the Veteran and obtaining additional VA treatment records; securing any necessary releases and obtaining any available employment records from the Atlanta Postal Service, including documentation of a medical retirement; and providing a new VA orthopedic examination. In response, the RO sent the Veteran a September 2011 letter that requested information regarding any additional treatment records, and provided the Veteran with the form to send to the Atlanta Postal Service regarding his employment information; obtained the Veteran's additional VA treatment records; and provided him with a new VA orthopedic examination in September 2011. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Furthermore, the February 2009 and September 2011 medical opinions are adequate because the examiner, whose qualifications include an M.D. (Doctor of Medicine) certification, considered the Veteran's claims file, provided a detailed description of the Veteran's bilateral hip disorders, and included a comprehensive rationale for his medical opinions, as discussed in detail below. The October 2012 VHA opinion is likewise adequate because the author, an M.D. and orthopedic surgeon, also considered the Veteran's claims file, provided a detailed description of the Veteran's bilateral hip disorders, and included a comprehensive rationale for his medical opinions. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one," Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim for service connection for bilateral hip disorders. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include during his appeal to the Court, nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds the Veteran is not prejudiced by a decision at this time and that no further action pursuant to Bryant is necessary. As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served on active duty for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, the presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested arthritis of the hip to a degree of 10 percent within one year from the date of termination of service. The Veteran claimed in July 2003 that he started having right hip numbness in Korea in July 1977, that he injured his left hip at Fort Benning, Georgia on October 23, 1979, and that his hips have been deteriorating ever since. At his February 2008 Central Office hearing, the Veteran testified that he first injured his right hip in Korea in 1977, and was found to have stiffness and numbness. He stated that he sustained a left hip flexor injury-also called a hip pointer- while playing football in 1979, for which he was on crutches for five weeks. He noted that he played one more game of football after his injury rehabilitation was complete. The Veteran denied having any other hip injuries during or after service. He reported that his bilateral hip symptoms have continuously worsened over time. The Veteran's service treatment records show that he complained of right hip numbness in July 1977, with no history of trauma, and was diagnosed with a muscle spasm. In October 1979, he complained of left hip pain; the clinician found that he had full range of motion, and diagnosed him with a left hip pointer. In November 1979, the Veteran reported that his hip pain was nearly gone, and he wanted to return to football training. In his April 1980 Report of Medical Examination for separation from service, the clinician found that the Veteran's musculoskeletal system and lower extremities were normal. After service, the Veteran did not express any hip complaints during VA examinations in December 1980 or February 1982. In September 1995 and March 1996, the Veteran reported that he began to experience right hip pain in August 1995 due to no apparent injury. On a February 1996 Family Medical Leave Act (FMLA) form, a private doctor noted that the Veteran's right hip pain, characterized as osteoarthritis, commenced in 1996. A March 1997 VA examiner opined that the Veteran's hip condition was unlikely to have been present since 1980-the year of the Veteran's discharge from service-because the Veteran had had a marked deterioration of function after a relatively normal period for years following discharge from service. On a November 2005 FMLA form, a private doctor noted that the Veteran's bilateral hip AVN commenced in 1996. In an August 2002 FMLA form, a private doctor noted that the Veteran's degenerative arthritis of the bilateral hips commenced more than five years earlier. A December 2004 VA orthopedic clinician assessed the Veteran with DJD, probably post-traumatic. June 2006 x-rays show DJD of both hips with AVN. A July 2006 VA clinician noted that the Veteran's hip pain began in service secondary to football injuries. A January 2007 VA clinician noted a history of bilateral hip AVN related to a football injury in service. A July 2008 VA treating clinician stated that, if the Veteran's service record confirmed the presence of hip injury/pain, then it was his opinion that the Veteran's hip disabilities were service-connected. A June 2011 VA physician noted the Veteran's current bilateral hip disabilities of AVN and DJD, stated that the Veteran sustained several hip injuries while playing football in service, and opined that both the AVN and the DJD appear to be related to these injuries. Private treatment records include discussion of the Veteran's history of right hip pain and his report of having initially injured his right hip while playing football in service. The Veteran underwent a right total hip arthroplasty in March 2009. He reported progressively worsening symptoms, particularly in the 12 months prior to the March 2009 right total hip arthroplasty. In separate May 2009 statements, private physicians indicated that his condition was, and was not, due to injury or sickness arising out of his post-service employment. In June 2011 and June 2012 letters, the Veteran's treating VA physician opined that his AVN and DJD are related to service. In addition to the foregoing, VA provided the Veteran with VA examinations in February 2009 and September 2011, both of which were conducted by the same physician. The physician stated that dislocation and fracture are the only traumas that would cause AVN, but the Veteran did not have these. The examiner therefore found it less likely than not that the Veteran's current bilateral hip AVN is related to his service. In the February 2009 report, the examiner opined that the Veteran's AVN may have been caused by alcohol dependence. In the September 2011 report, the examiner stated that the Veteran's DJD "can be explained by the AVN which can cause DJD. It is noted that [the] separation exam from service was normal." A May 2012 private physician reviewed the Veteran's medical history and concluded that his bilateral hip disorder "is secondary to aseptic necrosis and related to his history of injury which possibly occurred while he was in the Military." In October 2012, the VHA orthopedic surgeon discussed the Veteran's medical history, and explained that: A hip pointer involves an injury to the iliac crest or wing. This is proximal to the hip joint itself. It would not be expected to cause damage to the hip joint and there was no sign of hip pain on examination following the injury. The veteran had no complaints regarding his hips during his April 1980 service separation examination. There are no records indicating that he was [subsequently] treated for his hips or had specific complaints during an examination until 1995. An MRI [magnetic resonance imaging] dated March 29, 1996 at West Paces Imaging in Atlanta [s]howed bilateral hip AVN. Ficat stage IV on the right and stage III on the left. The right hip showed mild joint space narrowing compared with the left. This study strongly suggests that the degenerative arthritis in the hips was secondary to the AVN and collapse of the femoral heads and not a separate process. The degree of degenerative arthritis was more severe on the side with the most collapse. The date of this study is important in that it is around 15 years following his military discharge in 1980. The veteran's self-reported onset of right hip pain [in] August of 1995 would correspond with the changes noted in the MRI in March of 1996. Pain is usually related to collapse of the femoral head which may be microscopic or macroscopic. The MRI changes would be consistent with the pain starting on the right before the left. It is unlikely that the AVN was present more than 5 years prior to the MRI.... [Citation omitted.] It is unlikely that the trauma sustained during his service before May 2, 1980 would have resulted in symptoms and collapse that were delayed until 10 or 15 years later....[In light of the known risk factors for AVN of the femoral head,] AVN would not be expected to occur with the type of trauma reported by the veteran. In addition, the patient has both hyperuricemia and a history of increased alcohol consumption. Both of these alone or in combination are known risk factors for the development of AVN of the hip. Based on the foregoing medical history review and analysis, the VHA orthopedic surgeon opined that: It is unlikely that the veteran's bilateral hip DJD is etiologically related to his active military service, including his in-service football career. The patient's degenerative arthritis of the hips is secondary to the AVN of the hips which [is] not likely caused by his military service. It is unlikely that the veteran's bilateral hip AVN is etiologically related to his active military service, including his in-service football career. The type of trauma involved would not be expected to cause AVN hips. The delay in the onset of symptoms of more than 10 years from the date of military discharge would be indicative of either idiopathic or other risk factor. The presence of hyperuricemia and a history of increased alcohol intake are known risk factors for avascular necrosis of the hips. [Formatting removed for clarity.] A February 2013 private physician recorded the Veteran's statement that he has been having pain in his joints since the 1970s, and opined that his bilateral hip AVN "might be related to his injury while in military." A March 2013 private physician diagnosed the Veteran with hip pain due to AVN of the femoral heads, as well as DJD of both hip joints. The physician opined that the Veteran "sustained several injuries in his hips while playing football during his military service. In my opinion it is at least as likely as not, that the condition of both hips with [AVN] and [DJD] is related to veteran's military service." After reviewing the evidence, the Board finds that the Veteran has a current disability, namely AVN and DJD of both hips. The Board further finds that the Veteran had in-service right hip numbness and muscle spasm in July 1977, and a left hip pointer with pain sustained in a football injury in October 1979. As such, the analysis turns on whether there is a nexus, or link, between the current disability and the in-service disease or injuries. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). Under the circumstances of this case, the Board finds that the opinions of the October 2012 VHA orthopedic surgeon and the February 2009/September 2011 VA examining physician warrant significantly greater probative weight than the opinions to the contrary, based on the VHA orthopedic surgeon and VA examiner's accurate descriptions of the pertinent factual premises, the unequivicality of their conclusions, and their persuasive explanations of the nature of the Veteran's conditions, consistent with the in-service and post-service facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the VA examiner explained that dislocation and fracture are the only traumas that would cause AVN, but the Veteran did not have either of these in service. The VHA orthopedic surgeon noted the Veteran's October 1979 left hip pointer was proximal to the hip joint itself and, as such, would not be expected to cause damage to the hip joint. Moreover, the Veteran had no complaints regarding his hips during his April 1980 service separation examination, or for approximately 15 years thereafter. The Board notes that these findings are consistent with the Veteran's November 1979 statement to an in-service treating clinician that his left hip pain was nearly gone and he wanted to return to football training; the April 1980 clinical findings of normal musculoskelature and lower extremities on Report of Medical Examination; the absence of any hip complaints during VA examinations in December 1980 and February 1982; and the Veteran's sudden onset of hip complaints in 1995. Moreover, physicians contemplated the Veteran's other risk factors for bilateral AVN, such as hyperuricemia and increased alcohol consumption, and the VHA orthopedic surgeon's cited relevant medical treatise evidence showing that a 15 year period between a traumatic event and AVN far exceeds the length of time for which a relation between the two can be expected. Finally, the physicians explained that the Veteran's AVN can, and under the facts of this case likely did, cause his bilateral hip DJD. By contrast, the aforementioned opinions linking the Veteran's in-service right hip muscle spasm and left hip pointer to his current bilateral hip AVN and DJD rely on the Veteran's report that his bilateral hip pain has continued and/or worsened since the in-service findings. The Board rejects these opinions because the Veteran's reports of continuous and/or worsening bilateral hip symptoms since service are not credible. Specifically, the Board acknowledges the Veteran's explanation that he did not seek treatment for his bilateral hip symptoms for so many years after service because "I do not like to go to the doctor," and that he finally sought treatment because the pain kept getting worse. The Veteran is competent to so state. 38 C.F.R. § 3.159(a)(2). However, the Board finds that the credibility of the Veteran's assertion of continuous pain since service is outweighed by his contemporaneous November 1979 statement to an in-service treating clinician that his hip pain was nearly gone and he wanted to return to football training; the April 1980 clinical findings of normal musculoskelature and lower extremities on Report of Medical Examination; the absence of any hip complaints during VA examinations in December 1980 and February 1982; and his statements to treating providers in 1996 noting the onset of pain as being in 1995/1996 with no apparent trauma. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Moreover, to the extent that the positive nexus opinions purport to link the Veteran's current AVN and DJD to service based on the in-service findings rather than solely on the Veteran's reported history, the Board finds that these opinions are nonetheless outweighed by the October 2012 VHA orthopedic surgeon and February 2009/September 2011 examiner's opinions. Specifically, the October 2012 VHA orthopedic surgeon's opinion warrants greatest probative weight because it accounts for the Veteran's documented hip improvement in service, the anatomical location of the Veteran's in-service injury relative to his current disorder, the nature and timing of the AVN disease process, and other risk factors for the disorder. This specialist provided a detailed rationale that included consideration of specific information in the record as well as citation to a medical treatise. Similarly, the February 2009/September 2011 examiner's opinions also take into account the Veteran's in-service injury, separation examination, post-service work history in maintenance, and prior treatment for alcohol abuse. The opinions provided adequate rationale for the conclusions reached and are also accorded probative weight. By contrast, the contrary opinions-including VA clinicians' opinions dated July 2006, January 2007, July 2008, June 2011, and June 2012, and private clinicians' opinions dated May 2012, February 2013, and March 2013-are cursory in nature and do not attempt to address or explain the multiple salient facts discussed above. In addition to the foregoing, the Board finds that the contrary opinions dated May 2012 and February 2013 are too equivocal to support a grant of service connection. As such, the favorable opinions are accorded less probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board notes the Veteran has submitted a copy of a Board decision for another veteran whose claim for AVN was granted. However, Board decisions in appeals are not binding to the appeals of other individuals. 38 C.F.R. § 20.1303 (2012). Indeed, the facts of the other case submitted are not identical to the Veteran's case, in that AVN was diagnosed in that veteran's case approximately a year after his discharge from service versus a 15 year gap that is present in this case. Thus, a decision rendered in a factually different case is of no probative value in adjudicating this claim. To the extent the Veteran contends that his bilateral hip disabilities are the result of his military service, there is no indication that he has specialized training in diagnosing hip disabilities or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of hip disabilities, including AVN and DJD, requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current hip disabilities is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's opinion regarding the etiology of his current bilateral hip disabilities is not competent medical evidence. The Board finds the opinions of the VHA orthopedic surgeon and the VA examiner to be significantly more probative than the Veteran's lay assertions as to etiology. For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran's current bilateral hip disorder, including AVN and DJD, is related to service. Accordingly, service connection for a bilateral hip disorder is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a bilateral hip disorder, to include AVN and DJD, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs