Citation Nr: 1314951 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 03-01 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left hip disability, including as secondary to the service-connected right knee disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from August 1969 until March 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1997 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board initially considered this appeal and denied the claim for service connection for a left hip disability in January 2004. The Veteran appealed the January 2004 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2006 Order, the Court vacated the Board's January 2004 decision, and remanded the case to the Board for a discussion of whether there was compliance with the provisions of the Veterans Claims Assistance Act of 2000. The case was returned to the Board in March 2007 and February 2009, at which times it was remanded to the RO for additional development. In July 2010, the Board denied the Veteran's claims of entitlement to service connection for a left hip disorder and a low back disorder. That decision also granted the Veteran's claim of service connection for a left knee disorder. The Veteran appealed the Board's July 2010 decision to the Court. In April 2012, the Court issued a Memorandum Decision, in which it vacated the Board's decision with respect to the denial of service connection for a left hip disability and remanded that claim back to the Board for additional development. The issue concerning the low back disorder was affirmed and as such is no longer before the Board. In light of the April 2012 Memorandum Decision, the Board remanded the claim in January 2013 for a VA examination to be conducted. The January 2013 Board remand requested the examiner provide an opinion as to the relationship between any current left hip disability and any incident of service, along with an opinion as to the relationship between the left hip and the service-connected right knee disability. To the extent the Board requested an opinion as to direct service connection, the Board notes that the Veteran has never raised this theory of entitlement. In fact, the Veteran's February 1997 claim for benefits and his March 1999 Substantive Appeal clearly indicated he was claiming service connection for the left hip as secondary to the service-connected right knee. Furthermore, as will be discussed in detail in the decision below, a review of the record does not raise this theory of entitlement. In light of this, the Board vacates, in part, the January 2013 Remand to the extent to which it requested an opinion as to the relationship between the left hip disability and service. The RO/AMC otherwise completed the requested development, but continued to deny the benefits sought. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As such, the case was properly returned to the Board for appellate review. THE AOJ SHOULD CORRECT THE ERROR IN THE RATING DECISION GRANTING SERVICE CONNECTION FOR LEFT KNEE PATHOLOGY. THE BOARD DID NOT GRANT SERVICE CONNECTION FOR SPONDYLOSIS OF THE LEFT KNEE SINCE "SPONDYLOSIS" DOES NOT INVOLVE THE KNEE. FINDINGS OF FACT 1. A chronic left hip disability was not manifested during service and arthritis was not manifest within one year thereafter; and a left hip disability is not related to service. 2. A chronic left hip disorder was not caused or aggravated by the service-connected right knee meniscectomy residuals. CONCLUSION OF LAW A left hip disability was not incurred in or aggravated by service, was not caused or aggravated by the service-connected right knee disorder and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112. 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In the present case, letters sent to the Veteran in April 2007, March 2008, August 2008, March 2009, and February 2013 fully addressed all notice elements. The claim was subsequently readjudicated in an April 2013 supplemental statement of the case. VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, lay statements and the report of VA examinations. The Board finds that the March 2013 VA examination that provided an opinion as to the etiology of the left hip disability is adequate. The examiner considered the Veteran's subjective history and complaints and performed a thorough physical examination providing all necessary findings to evaluate the claim. See 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); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As discussed in the Introduction, although the examiner did not provide an opinion as to the relationship between the left hip disability and service, neither the Veteran nor the record raises a claim of direct entitlement. As noted above, both the February 1997 claim for benefits and the March 1999 Substantive Appeal explicitly stated the claim was for service connection for the left hip as secondary to the service-connected right knee. Furthermore, the service treatment records fail to reflect any complaints or treatment related to the left hip and the Veteran has not described any event or incident in service related to the left hip. 38 C.F.R. § 3.159; See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the record does not indicate that a left hip disability may be related to an event or injury in service. As such, there is no duty on the part of VA to provide a medical examination on the theory of direct entitlement. Id. Accordingly, the March 2013 examination that was provided is adequate. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In fact, in July 2007 the Veteran specifically indicated he had no new competent evidence in his possession concerning the left hip. He reiterated that he had no evidence, other than records from Dr. P., in a March 2012 statement. The attached Form 21-4142, Authorization and Consent to Release Information form, for Dr. N.P. clearly indicated Dr. P. treated the Veteran for his left knee. Similarly, the Veteran indicated in a separate July 2007 statement that Dr. P. treated him for his knees. Additionally, several statements from Dr. P. have already been associated with the claims file. The Veteran recently attested that he did not have any additional evidence concerning his claim for his left hip in an April 2013 statement. As the Veteran has not indicated the records from Dr. P. are relevant to the claim for the left hip and in fact has recently indicated that there was no further evidence that needed to be obtained, the Board finds the duty to assist has been satisfied. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for a left hip disability and argues that his current disability is related to his service-connected right knee disability. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. 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). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as arthritis. See Dorland's Illustrated Medical Dictionary 531 (30th ed. 2003) (defining degenerative joint disease as osteoarthritis). Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. In the present case, the March 2013 VA examination concluded with a diagnosis of degenerative joint disease of the left hip. As noted above, this is a form of osteoarthritis, which is an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101. 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 competent evidence of a nexus between the current disability and the inservice disease or injury. Although the Veteran served in the Navy during a period of war, he has not contended, nor does the evidence reflect, that he engaged in combat with the enemy. As such, the combat provisions of 38 U.S.C.A. § 1154(b) are not applicable to this case. Service treatment records fail to reflect any complaints, treatment or diagnoses related to the left hip. While some records, such as records in April 1971, reported pain in the left groin, this was attributed to an enlarged lymph node secondary to a left knee infection. Significantly, the March 1973 examination conducted in connection with the Veteran's separation from service described the Veteran's lower extremities and spine and other musculoskeletal system as normal. The only defects reported at that time were marks and scars and decreased visual acuity. Furthermore, none of the evidence suggests any relationship between the current left hip disability and the Veteran's active service. Neither the Veteran, nor the record, suggests that the hip disorder had its onset during service. While VA records document complaints and treatment for pain, none of these records include an opinion as to the etiology of the left hip pain. As the Veteran has a diagnosis of arthritis which is one of the listed chronic diseases, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with arthritis during service and it was not identified. Furthermore, he did not have characteristic manifestations of the disease process (arthritis) during service and arthritis was not noted during service. As such, the chronic disease (arthritis) of the hip was not established and was subject to legitimate question during service. Furthermore, there is no evidence reflecting arthritis to a compensable degree within one year of the Veteran's separation from service. Accordingly, in order to establish service connection the Veteran must demonstrate a continuity of symptomatology. A review of the record reflects no lay or medical evidence of continuity of symptomatology. In fact, the first indication of any form of complaint or treatment for the left hip is the April 1997 VA examination. Nothing at that time suggested an in-service onset. In other words, there is a gap of nearly 24 years between the Veteran's discharge from service and the first treatment for his left hip. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). More significantly, there is not silence alone in the present case. Rather, at separation from service in March 1973, the Veteran's lower extremities and spine and other musculoskeletal system were evaluated as normal. Another VA examination conducted in April 1984 (11 years after service) indicated no subjective complaints for joints other than the right knee and the clinical examination reflected a full range of motion in all joints including the right knee. The Veteran, however, contends his left hip disability was caused by his service-connected right knee disability. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002). The Board notes that VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). In this regard, the Veteran has a current disability of degenerative joint disease of the left hip and service-connected disabilities of limitation of motion with right knee degenerative joint disease, residuals of a lateral meniscectomy of the right knee and left knee spondylosis with arthritis. The Veteran was afforded a VA examination in April 1997. The examiner reviewed the record, considered the Veteran's subjective history of occasional left hip pain that the Veteran indicated may be due to mild arthritis and completed an examination of the Veteran. The examiner concluded there was intermittent synovitis of the left hip, mildly symptomatic. The examiner indicated it was the opinion of the Veteran and the examiner that the left hip was not related to the right knee pathology. The examiner determined that the arthritis in the right knee was post-traumatic arthritis. The Veteran was afforded another VA examination in March 2013 to specifically assess the relationship, if any, between the left hip and the right knee. After reviewing the record and examining the Veteran, the examiner concluded that it was less likely than not the left hip was proximately due to or the result of the service-connected condition. The examiner explained that research has shown that pathological joints do not cause or affect other extremity joints and referred to the article "Symptoms in the Opposite or Uninjured Leg" by Dr. I.H. in 2005. The examiner further opined that the Veteran had mild age-related degeneration in the left hip. 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); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, 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). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In the present case, there are two negative opinions and the Board finds the March 2013 VA examination to be particularly probative. The examiner reviewed the record, considered the Veteran's subjective complaints, including his report of pain with ambulation, examined the Veteran, and noted the Veteran's use of a cane because of the service-connected knee disabilities. The examiner provided a well-reasoned explanation citing to current medical literature for his conclusion that the left hip disability was not related to the service-connected right knee disability. Furthermore, although the Board did not specifically ask for an opinion as to a relationship between the left hip and the service-connected left knee disability, the examiner indicated generally that there was no indication pathology in one joint could affect another joint. Additionally, although the examiner did not use the term "aggravation" in phrasing his opinion, in this case, the examiner clearly considered aggravation as he indicated that pathology of one joint did not "affect" the other joints. Unlike the term "related to" which only suggests a direct causal connection; the term "affect" more broadly considers any relationship between the two conditions. Compare Merriam-Webster's Collegiate Dictionary 21 (11th ed. 2003) (defining "affect" as to produce an effect upon, to produce a material influence upon or alteration in, or to act upon) with Merriam-Webster 's Collegiate Dictionary 1050 (11th ed. 2003) (defining relate as "to show or establish logical or causal connection between"); See e.g. Coulter v. Nicholson, 20 Vet .App. 138 (2005)(nonprecedential) (noting the doctor's choice of language was not error where his opinion is unambiguous and sufficient to comply substantially with the Board's order); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (finding that a nonprecedential decision of the Court, while not binding, "may be cited or relied upon, however, for any persuasiveness or reasoning it contains"). Most significantly, in the present case, the examiner affirmatively attributed the left hip disability to another cause, specifically aging. In fact, the only evidence that links the left hip disability to the service-connected right knee is the Veteran's assertions. In a July 2002 statement, the Veteran explained he had surgery for the right knee and still was unable to climb. As such, he explained his left knee supported his weight and the left side was weakening. To the extent to which the Veteran attempted to provide an etiological opinion, he is not competent to do so in this particular case. Determining the etiology of arthritis of the left hip is a complicated medical question involving interpretation of radiological studies and knowledge of the different symptoms and clinical presentation of hip disorders. The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to the etiology of his disease is not competent evidence in this particular case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). We also note that the lay opinion is not otherwise supported in the record and no other Jandreau exceptions are identified. The Board does not require medical evidence, only competent evidence. In this particular case, the lay evidence is not competent as to causation. To the extent that he has related the diagnoses that he has received, he is competent to relate that which he has been informed. Lastly, the record does establish that the appellant has a chronic disease, arthritis. Generally, once established subsequent manifestations of the same disease process are service connected unless clearly due to intercurrent cause. Here, the most probative evidence (as established by a medical professional), establishes that the appellant has an age related arthritis of the hip. This establishes that there was a clear intercurrent cause and that there is no relationship to the service-connected arthritic processes of the other joints (which were traumatic in origin). While the Board has carefully reviewed the record in depth, we conclude that the preponderance of the evidence is against the claim. The Board has also considered the benefit of the doubt rule in this case, but as there is no reliable evidence of a nexus to the service-connected disabilities, no evidence of symptoms or an event concerning the left hip during service, and no evidence of continuous symptoms of arthritis, the preponderance of the evidence is against the claim. As the evidence is not in equipoise, there is no basis to apply the benefit of the doubt rule. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a left hip disability is denied. ORDER Service connection for a left hip disability is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs