Citation Nr: 1314910 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-06 793 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a left hip disorder, claimed as secondary to service-connected left knee disability. 2. Entitlement to service connection for a right hip disorder, claimed as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the RO. When this case was most recently before the Board in July 2012, it was remanded for additional development. It has since been returned to the Board for further appellate review. For the following reasons, the issue of service connection for a bilateral hip disorder has been separated into two issues, as reflected on the title page of this decision. The Board notes that this action does not result in any prejudice to the Veteran, as the RO considered service connection for the bilateral hips in its most recent adjudication of the case before returning it to the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claim. A review of the documents in the electronic file reveals that some documents are non-duplicative of those in the paper claims file and are relevant to the issues decided in this matter. Specifically, the Virtual VA file contains evidence of the Veteran's ongoing VA treatment starting in 2008, with some electronic treatment records not otherwise associated with the paper claims file. These documents were considered by the RO when the Veteran's claim was previously adjudicated. As such, the Board notes that it considered these records as well as the paper claims file in deciding this case. FINDINGS OF FACT 1. The Veteran has a current left hip disorder manifested by degenerative changes that is shown as likely as not to have been caused by the service-connected disability. 2. The Veteran does not have a right hip disability that is due to a disease or injury in service or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his left hip disability manifested by degenerative changes is proximately due to or the result of the service-connected knee disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The Veteran does not have a right hip disability that was incurred in or aggravated by active service; nor is any proximately due to or the result of the service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under VCAA, 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the notice requirements of VCAA apply to all 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. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In regard to the left hip, to the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. In regard to the claim of service connection for a right hip disorder, the Veteran was provided all required VCAA notice, to include notice on the requirements for a secondary service connection claim, in pre-rating letters in April 2005, December 2005, and March 2006. VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations in connection with his claim. The Board finds that the examinations were adequate, in that the exams were conducted by medical professionals who reviewed the claims files, solicited history from the Veteran, and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the July 2012 remand instructions directed the agency of original jurisdiction (AOJ) to obtain a medical opinion that included the extent to which the bilateral hip disorder may have been aggravated by the service-connected bilateral knee disability. To the extent that the subsequent August 2012 VA examination did not address this issue, the lack of such a finding did not result in a material altering of the outcome of this case. Specifically, the benefit sought for the left hip claim is granted in full, and the claim for the right hip fails for a lack of a current disability, with or without a finding of aggravation or the degree of such. As such, the Board finds that the Veteran was not prejudiced by the actions of the AOJ, and the AOJ substantially complied with the Board's remand instructions, making further remand unnecessary. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("substantial compliance, not absolute compliance" required under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Analysis As an initial matter, the Board notes that the Veteran does not assert, nor does the evidence show that a hip disorder became manifest in service or within one year of discharge. Rather, the Veteran asserts that the claimed left and right hip disorders are secondary to his service-connected knee disability and began many years after service. Moreover, there is no medical evidence showing any diagnosis or symptomatology in service or for many years thereafter linking the onset of any hip disorder to the Veteran's service. Thus, the remaining consideration before the Board is whether service connection is otherwise warranted on a secondary basis. Historically, the Veteran has a long-standing history of left knee difficulty following an in-service injury; service-connection is in effect for left knee post-traumatic degenerative osteoarthritis, status post lateral meniscectomy. The now service-connected right knee disability is manifested by degenerative changes. The record reflects that the Veteran has consistently contended that he compensates with weight bearing due to his left knee, which has caused ongoing problems with his right knee and hips as early as 2003. An April 2009 x-ray report shows minor degenerative changes of the left hip characterized by sclerosis and osteophyte formation of the superior lateral acetabulum. There was no fracture or subluxation in either hip. In a September 2009 Virtual VA treatment note, the Veteran complained of low back pain radiating into his right hip and knee following heavy lifting at work and long hours of coaching. An x-ray report showed no fracture, dislocation, or lesion of the right hip. The examining physician noted that the description was more consistent with lumbar disc disease with radiculopathy than a focal knee disorder. The problem list with lumbar disc disease was updated to read "lumbar disc disease v m/s strain [right] hip/knee." Subsequent VA treatment notes show that this right hip disorder remained associated with the lumbar disc disease. In response to the July 2010 Board remand, the Veteran was afforded a VA examination in August 2010 and reported that he put most of his weight on his right side due to his left knee pain. He reported that his right knee and hips started bothering him around 2001. He described the pain in his hips as a warm aching constant pressure, with some soreness and stiffness from the lower back radiating into the hips. On examination, the Veteran was noted to be morbidly obese with no gross evidence of ankylosis of the hips or knees. In the hips, there was no objective evidence of painful motion, edema, effusion, instability, weakness, redness, tenderness, heat, abnormal movement, or guarding of movement. He did have to stop motion testing due to hamstring cramps. Flexion was limited by tight hamstring muscles and large abdominal girth. The examiner determined that bilateral hip pain was likely due to radiation from the Veteran's nonservice-connected back disorder and left hip degenerative changes of unknown etiology. The examiner then determined that it was as likely as not that the Veteran's altered gait to accommodate pain in both knees contributed to the minimal degenerative changes in the left hip and reported bilateral hip pain. The Veteran underwent another VA examination in July 2011 and attributed his right knee and bilateral hip disorders to overcompensating due to his service-connected left knee condition. He had pain and stiffness in his hips with decreased speed of joint motion, but no weakness or instability. On examination, the examiner noted no evidence of abnormal weight bearing. Both hips showed abnormal motions and guarding of movement. Both knees also showed abnormal motion and guarding of movement, with this abnormal motion limiting all hip range of motion. The examiner indicated that the Veteran's body habitus likely limited his bilateral hip and knee range of motion, specifically, his increased BMI. The diagnosis was that of minor degenerative left hip condition based on the April 2009 x-ray report. The examiner opined that the Veteran's bilateral hip condition was not caused by or the result of service, to include his service-connected left knee disability. The examiner also indicated that there was no evidence-based literature published in any peer-reviewed medical journals of a higher incidence/frequency of hip conditions in patients with knee osteoarthritis than in the general population. A July 2012 Board decision, implemented in a rating decision that same month, granted service connection for a right knee disability manifested by degenerative changes on a secondary basis to the service-connected left knee disability. In response to the July 2012 Board remand, the Veteran was afforded a final VA examination in August 2012 and reported first experiencing problems with his hips approximately ten years earlier due to his arthritic knees. He reported experiencing flare-ups requiring sitting down or walking off the pain. On examination, the Veteran's body habitus likely contributed to decreased bilateral hip flexion, specifically his increased BMI. Reduced, painful motion was noted, bilaterally. The diagnosis for the left hip continued as a minor degree of degenerative changes (osteoarthritis), with no diagnosis provided for the right hip. The examiner found that the bilateral hip disorder was less likely than not proximately due to or the result of the service-connected disabilities. In so finding, the examiner noted that the minor degree of osteoarthritis reported in the left hip x-ray would not be expected to result in a hip disability. The examiner also indicated that knee osteoarthritis had not been demonstrated to be a causative factor in aggravating or advancing the natural progression of hip osteoarthritis in those so predisposed. Left Hip Upon careful review of the record, the Board finds that service connection for a left hip disorder is warranted. The record reflects that the Veteran has been diagnosed with left hip degenerative changes. See April 2009 x-ray report. The August 2010 VA examiner diagnosed the Veteran with minimal degenerative changes in the left hip of unknown etiology. The examiner determined that it was as likely as not that the Veteran's altered gait from his service-connected left and (now) service-connected right knee contributed to the minimal degenerative changes of the left lip. Based on this opinion, the Board finds that the VA examiner indicated that the minimal degenerative changes can be attributed to the service-connected bilateral knee disabilities. The Board finds this opinion to be probative in showing that the current left hip disability as likely as not was in part caused by or due to altered weight bearing due to the service-connected bilateral knee disabilities. While the opinions of the July 2011 and August 2012 VA examiners weigh against the claim, the Board finds these opinions to have diminished probative value to the extent that the examiners did not fully assess the Veteran's assertions of altered weight bearing due to his bilateral knee disabilities over time. In this case, the cause of the Veteran's current left hip degenerative changes may never be known to a certainty. Under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 53. Given the evidence, such a conclusion cannot be made in this case. Thus, in resolving all reasonable doubt in the Veteran's favor, service connection for a left hip disorder, claimed as secondary to the service-connected left knee disability is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Right Hip The Veteran has not presented, and the record does not otherwise reflect competent evidence to support the assertion that the Veteran has a current right hip disability, aside from the right hip strain associated with a nonservice-connected low back disorder discussed more fully below. The Veteran's service treatment records show no complaints, treatment, or diagnosis for a right hip disorder. Moreover, the Veteran stated that his complaints of right hip pain began around 2001, many years after service. These complaints of pain due to compensating for the left knee are documented in the VA treatment records after 2001; however, no diagnosis has been identified. Moreover, the Veteran has presented no credible assertions that would tend to identify a current right hip disorder that can be directly linked to a disease or injury during service or to the service-connected bilateral knee disability on a secondary basis. The Board notes that, during the course of the appeal, the Veteran was diagnosed with strain of the right hip. However, this disorder was specifically associated with the Veteran's lumbar disc disease, a nonservice-connected disorder, a finding which remained unchanged. The Veteran is certainly competent to report and describe symptoms, such as pain. However, to the extent the Veteran may have certain complaints, pain alone is not a disease or injury, and it is not a disability for purposes of VA compensation. To the extent that the Veteran may have certain complaints which he is competent to report, symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Whether service connection is claimed on direct, presumptive, or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. In the absence of competent evidence of a present right hip disability, there is no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, as the record does not reflect a right hip disability not otherwise associated with a nonservice-connected disability, the claim of service connection on a direct, presumptive, or secondary basis must be denied. ORDER Service connection for left hip degenerative changes as secondary to service-connected left knee disability is granted. Service connection for a right hip disorder, claimed as secondary to service-connected left knee disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs