Citation Nr: 1315875 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-21 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hip disability. 2. Entitlement to service connection for a low back disability, to include as manifested by bilateral hip pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1977, and from September 1977 to September 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). In a September 2011 decision, the Board denied the Veteran's claim for entitlement to service connection for a bilateral hip disorder. Subsequently, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a July 2012 Joint Motion for Remand (JMR), in a July 2012 Order, the Court vacated that part of the Board's September 2011 decision which denied service connection for bilateral hip disability and remanded the claim to the Board for additional consideration. The claims were previously before the Board in January 2013, at which time they were remanded for additional development, to include providing notice to the Veteran of what information or evidence was needed to substantiate his claim for entitlement to service connection for a low back disorder, as well as providing the Veteran with a new VA examination to determine the existence and etiology of a bilateral hip disorder and a low back disorder. Such notice was provided to the Veteran in correspondence dated in February 2013, and the Veteran was provided a VA examination in February 2013. As such, the Board finds that there has been substantial compliance with the mandates of the January 2013 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay evidence, of record that the Veteran has a bilateral hip disability, casually related to, or aggravated by, service. 2. There has been no demonstration by competent medical, nor competent and credible lay evidence, of record that the Veteran has a low back disability, casually related to, or aggravated by, service. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002);38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. A low back disability was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002);38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 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 or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In this case, VA issued letters to the Veteran with respect to the issues on appeal in August 2007 and February 2013, prior to the initial adjudications of the claims, which informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence and provided him with notice of the type of evidence necessary to establish a disability rating and/or effective date in the event of award of the benefits sought. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, private treatment records, and VA examination reports. Additionally, the claims file contains the Veteran's statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. VA examinations and opinions with respect to the issues on appeal were obtained in April 2008 and February 2013. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2008 and February 2013 VA examinations and opinions obtained in this case are more than adequate, as each was based on physical examination of the Veteran and a review of the Veteran's claims file by the VA examiner. Each examiner also provided a well-supported rationale for his/her opinion. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate the Veteran's claim. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The representative and the VLJ asked questions to ascertain the extent of any in-service injury and to determine whether the Veteran's current disability is related to his military service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the Veteran nor his representative has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, extensive evidence submitted by the veteran or on his behalf. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran asserts that service connection is warranted for bilateral hip disability, which he believes is due to in-service parachute jumping. The Board notes that the Veteran underwent a VA examination in April 2008 with regard to his bilateral hip disability, and that the VA examiner found that, although the Veteran described hip pain, he pointed to the lumbosacral area of his back rather than to his hips. The VA examiner thus concluded that there was no medical evidence of a bilateral hip disability on examination, but stated that the majority of the Veteran's reported hip pain emanated from the lumbar region. As such, the Board will also consider whether service connection is warranted for a low back disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). At the outset, the Board observes that the Veteran's DD Form 214 demonstrates that he received a combat infantryman badge, parachutist badge, a senior parachutist badge with combat distinguishing device, and a master parachutist badge with combat distinguishing device. Therefore, the Board finds that it would have been consistent with the circumstances of the Veteran's service for him to have had to participate in parachute jumps. 38 U.S.C.A. § 1154(a). With respect to an in-service injury or disease, a September 1996 service treatment record also shows that the Veteran complained of experiencing left hip pain in September 1996 after falling into a hole during a field exercise in Korea. He reported that he experienced pain when running or climbing up hills. The Veteran's May 1997 Report of Medical History at retirement revealed that the Veteran reported a history of swollen or painful joints. The examining physician noted that the Veteran's painful/swollen joints affected multiple joints, including the hips, which occurred after runs and road marches and resolved with rest. However, the corresponding Report of Medical Examination at retirement indicated that the Veteran's lower extremities, spine, and other musculoskeletal system were within normal limits. With respect to post-service medical evidence, a February 2007 private treatment record shows that the Veteran complained of experiencing hip pain and stiffness, although the examiner's assessment was that the Veteran's physical examination was normal. In particular, physical examination of the musculoskeletal system revealed the hips exhibited full range of motion, and that the Veteran's gait and stance were normal. As discussed above, the Veteran was afforded a VA joints examination in April 2008, at which time X-rays revealed old trauma of the inferior ramus. However, the examiner noted that the Veteran pointed to his low back area when referring to the pain in his hip, and opined that the Veteran was describing a lumbar disability rather than a hip disability. X-rays of the lumbar spine revealed very mild osteophytic spurring as well as grade 1 retrolisthesis of L5 on S1. The examiner diagnosed the Veteran as having degenerative disc disease of the lumbar spine, although he did not provide an opinion as to the likely etiology or date of onset of this disability. As such, the Veteran was afforded another VA examination in February 2013. With respect to the lumbar spine, the examiner diagnosed the Veteran as having lumbar back strain. X-rays revealed mild degenerative changes of the lumbar spine with anterior osteophytosis, but no acute bony abnormality. However, the examiner opined that any low back disability was less likely as not (less than 50 percent probability) due to or a result of his period of active duty service. The examiner explained that the Veteran stated that he was seen merely once for back/hip pain while in Korea, and was treated and returned to duty. On his retirement examination, he checked "no" with respect to the question of recurrent back pain. Furthermore, the examiner did not find any other reference to the Veteran being seen for or treated for a back injury in the service treatment records. There was no evidence of chronicity for chronic back pain in the service treatment records, and no continuity of care for chronic back pain in the years proximal to military service. With respect to the hips, the examiner diagnosed the Veteran as having degenerative disc disease of the bilateral hips, greater in the right hip than in the left hip. X-rays revealed no acute osseous abnormalities of the right hip or left hip. However, the examiner opined that any bilateral hip disability was less likely as not (less than 50 percent probability) due to or a result of his period of active duty service. The examiner explained that the Veteran was seen only one time in September 1996 for left hip pain that was diagnosed as left hamstring tightness versus left sciatica, with no additional entries noted in the service medical records. There was no evidence of treatment for a right hip disability. Furthermore, there was no evidence of chronicity for a bilateral hip disability in the service treatment records, and no continuity of care for a bilateral hip disability in the years proximal to military service. The Board finds that entitlement to service connection is not warranted as there is no competent credible evidence of a medical nexus between service and the Veteran's current low back/hip symptomatology, nor is there competent credible evidence of continuity of symptomatology of arthritis since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., low back and hip pain). To this extent, the Board finds that the Veteran is competent to report that he has had low back and hip pain since service. The Board notes that there is no clinical evidence that the Veteran complained of, or sought treatment for, low back or hip pain for approximately 10 years after separation from service. While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the record does not reflect demonstration of arthritis to a compensable degree within one year of separation from service. As such, service connection is also not warranted on a presumptive basis. The Board finds that any statement by the Veteran that he has had low back and/or hip pain since service is less than credible when considered with the record as a whole. The Veteran's service treatment records are negative for any treatment of the low back, and only reveal a single instance of treatment for the left hip, after which time the Veteran was returned to duty. As noted above, his retirement physical was within normal limits. Thus, the Board finds that the evidence of record is against a finding that the Veteran has had low back and/or hip pain since service. In addition, the clinical evidence of record is against a finding that the Veteran has a low back and/or hip disability causally related to active service. As discussed above, the April 2013 VA examination report reflects the opinions of the examiner that the Veteran's low back and bilateral hip disabilities are less likely than not related to service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hip disability is denied. Entitlement to service connection for a low back disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs