Citation Nr: 1315948 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-43 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left hip disorder (claimed as injury residuals and quadriceps muscle strain residuals). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1957 to April 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left hip disorder. The Veteran timely appealed that issue. The Veteran testified at a Board hearing before a Veterans Law Judge in July 2011; a transcript of that hearing is associated with the claims file. Since that hearing, that Veterans Law Judge has retired from and is no longer employed by the Board. The Veteran was informed of this fact in a March 2013 letter; he was additionally informed of his right to another hearing before another Veterans Law Judge. No response from the Veteran has been received after the 30-day period noted in that letter for response; the Board therefore is proceeding with adjudication of the case at this time without the benefit of an additional hearing. This case was before the Board in November 2011 and April 2012, when it was remanded for further development. The requested development having been completed, the case has been returned to the Board at this time for further appellate review. FINDING OF FACT 1. Chronic left hip disability did not have its clinical onset in service and is not otherwise related to active duty; neither arthritis of the left hip nor sciatica was exhibited within the first post service year. CONCLUSION OF LAW A chronic left hip disorder was not incurred or aggravated in service, and neither arthritis of the left hip nor sciatica may be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in September 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a July 2011 hearing before a retired Veterans Law Judge. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. 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 herein decided. The Board notes that the Veteran's claim was remanded in November 2011 and April 2012 in order to obtain medical release forms for identified private records; letters in November 2011 and April 2012 asked for the Veteran to identify and submit medical release forms for any private treatment he may have received. The Veteran has not submitted any release forms or any private medical records in response to those requests. VA has satisfied its duty to assist in obtaining any records in this case. Additionally, the Board instructed that the Veteran undergo a VA examination of his left hip; VA examinations of his left hip were performed in November 2011, February 2012, and May 2012. For reasons indicated in the April 2012 remand order, the Board found the prior two VA examinations to be inadequate. The Board has found that the reasons for those inadequacies have been satisfied by the May 2012 examination report, as will be discussed below. Therefore, the Board finds that its remand orders have been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, 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). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis or an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). On appeal, the Veteran has averred that he has a current left hip disability, manifested by severe pain and muscle spasms, which is related to an in-service January 1959 left-sided injury while skiing. In his July 2011 hearing, the Veteran testified that he injured his left hip while being trained to ski; he hit a patch of ice and slid off a cliff and landed on his left side. He noted that he was treated for this in service. However, he reported that after that injury his left hip did not bother him until approximately 1986, when he began having pain in his left hip that prevented him from sleeping and has otherwise functionally limited his ability to perform physical activities and to work. The Veteran has additionally stated in other places that a 1966 physician informed him that he had arthritis in his left hip; the Veteran has not responded to inquiries to provide information with regards to this physician or otherwise submitted treatment records documenting such arthritis. A review of the Veteran's service treatment records reveals that the Veteran's left hip was normal on entrance into service in May 1957; he reported no left hip pain or problems at that time. The service treatment records confirm the Veteran's left hip injury in January 1959. He was noted to have hit an icy patch and slipped and fell on his left side, resulting in a twisted left leg. He was diagnosed with a left extensor digitorum longus and left gernelli muscle strain; he was admitted to a treatment facility for three days before being discharged to duty as fit. X-rays of his pelvis, femur and tibia were negative at that time, and the doctors noted that he has "pulled origin of left extensor digitorum longus and probably left gernelli muscles." Approximately a week later he was seen for a follow-up, at which time the doctor noted that he had good function of the muscles involved. The Veteran complained of soreness and some pain in his left hip approximately a week after that-two weeks after the accident. No further treatment for a left hip injury is shown. In March 1959, the Veteran underwent a separation examination at which time his left hip was noted as normal; in box 74, it was specifically noted that the Veteran had no defects noted at that time. The Veteran submitted his claim for service connection in July 2008. As noted above, there are no private treatment records in the claims file. The Veteran has identified treatment with a private physician in 1966 as well as with Methodist Hospital in Dallas; he has not submitted any forms with regards to medical release and VA has no legal basis to request those documents without the Veteran's written consent. VA treatment records from January 2003 through May 2011 are of record and have been reviewed. Those records generally demonstrate extensive treatment for the Veteran's lumbar spine degenerative disc disease and associated severe lower back pain, as well as osteoarthritis of his hands, particularly his right thumb, and numerous complications stemming from his Reiter's syndrome, including eye, skin and joint problems. The Veteran was additionally noted as having a history of gout, though no acute gout symptoms were demonstrated throughout those records. With regard to the Veteran's claimed left hip disability, the Board notes that there are no complaints of, treatment for, or diagnosis of any left hip disorder throughout the VA treatment records. In fact, the Veteran's hips were shown to have a full range of motion in a March 2005 treatment record, and his lower extremities demonstrated a normal range of motion in a May 2011 treatment record. The Veteran underwent a VA examination of his left hip in November 2011; the VA examiner did not review the claims file at that time. However, it was noted that on examination, the Veteran had a normal hip examination with symptoms of radicular type pain. In that examination, the Veteran reported having a left hip ski injury in service; he noted that the bruising went away and he did not think anything further of it; he reported no other injury or trauma. He stated that he recalled being told in approximately 1966 or 1967 that he had arthritis in his hip and chalked his pain up to that diagnosis; he reported taking aspirin for pain relief and that over the years he continued to have pain. The Veteran reported having Reiter's syndrome, gout, low back/degenerative disc disease and osteoarthritis. He complained of left hip pain at the buttocks that radiated down his left thigh to the lateral calf. On examination, the Veteran's left leg and hip were noted as having normal strength and range of motion testing without painful motion; the examiner marked that he had no functional impairment of the left lower extremity on examination. X-rays from November 2011 were obtained and demonstrated no facture or dislocation. Degenerative lower lumbar spine disease associated with posterior fusion anomaly at lumbosacral transition. Intact bony pelvis and hips. Degenerative sacroiliac joint disease, slightly worse on the right. The examiner opined that without the claims file he could not give an opinion without mere speculation. However, he noted that the pain described by the Veteran is radicular in nature with radiating pain in the buttocks to the posterior thigh and lateral calf with some numbness to the lateral calf. The examination also noted a history of Reiter's syndrome. The examiner noted that while he could not opine as to direct service connection, he felt "that at least some if not all of the Veteran's hip complaints are more likely coming from a low back disability and/or other disease process." The Veteran underwent another VA examination of his left hip in February 2012; this time, the examiner reviewed the claims file. The Veteran generally reported similar history and symptomatology as in the previous examination. However, in this examination, the Veteran reported having intermittent, chronic mechanical left hip pain since his injury in service and that he was diagnosed with left hip arthritis in 1966 by a private physician. The Veteran complained primarily of left buttock and posterior thigh sciatic, S1 radicular-type pain, though he also reported experiencing daily mechanical left hip greater femoral trochanter pain. The examiner diagnosed the Veteran with a left hip strain, diagnosed in November 1959; greater femoral trochanteric bursitis, diagnosed in February 2012; and, sciatica, diagnosed in February 2012. After examination, the VA examiner noted that he reviewed the claims file and opined that the claimed left hip disability was less likely than not related to military service. He stated in the rationale section that it was more likely than not that the Veteran's current left hip trochanteric bursitis is related to his postservice-developed gout. . . . [and that his] left buttock sciatica is related to his postservice-developed lumbar degenerative disc disease, developmental L5 spina bifida occulta with Grade 1/3 spondylolisthesis. No further rationale to support those conclusions was given. The Board determined that further explanation was necessary in the April 2012 remand. The Veteran subsequently underwent a third VA examination of his left hip in May 2012 with the first VA examiner. The Veteran again reported substantially similar history and current symptomatology as noted in the previous two VA examinations. He did note that he was informed by VA in 2004 that he did not have hip arthritis and that his hip pain was due to sciatica. On examination, the Veteran again had normal strength and range of motion testing of his left hip, and the examiner noted that he did not have any functional impairment of his left hip. The examiner noted that the Veteran did not have hip tenderness to palpitation, though there was tenderness to the posterior buttocks over the sciatic notch area. He did not have heat, redness, or swelling. The examiner noted that the Veteran did not have any degenerative or traumatic arthritis of the left hip. Following the examination, the examiner opined that [the Veteran] has had a hip strain and apparent trochanteric bursitis in the past. These are not his complaint today and there is no tenderness to the trochanteric bursa at this time. His current complaints are related to the back and radicular symptoms of radiating posterior left leg pain to the foot/ankle. The c-file was reviewed. The Veteran was treated for a left hip strain which had resolved. The [separation] exam is negative for any hip disability or low back/radicular disability. There is no evidence of chronicity for a hip or back/radicular disability. There is no interim data proximate to discharge related to the left hip or a low back/radicular disability. Based on the evidence available, the Veteran is complaining of left lower extremity radicular-type symptoms and not an intrinsic hip disability. . . . [Therefore,] the current left leg radicular symptoms/complaints (claimed as hip disability) are not related to the acute left hip injury that occurred during active duty. On the basis of the foregoing evidence, the Board finds that service connection for a left hip disorder is not warranted. First, the Board notes that the Veteran's lay evidence indicated that he was diagnosed with left hip arthritis in 1966. The Board notes that while the Veteran is competent to state that is what he was told back in 1966, there is no medical evidence to support such a finding and the Veteran is not competent to self-diagnose arthritis, as such requires x-ray evidence for verification. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (noting that arthritis should be established by x-ray findings); 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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The medical evidence, including the November 2011 x-ray report, does not demonstrate any left hip arthritic disability present and the examiners have not diagnosed the Veteran with left hip arthritis during the appeal period. The Board finds that the Veteran's claim that a physician told him that he had left hip arthritis in 1966 is not reliable, especially in view of the subsequent x-rays that have not confirmed these findings. Hearsay medical evidence, as transmitted by layperson, is of limited probative value. The connection between what a physician said and layperson's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). As there is no evidence of any left hip arthritic disability of record other than the Veteran's lay reporting of such in 1966 which is unconfirmed by any medical documentation or x-ray evidence, the Board finds that arthritis of the left hip has not been diagnosed in this case. The Board finds that the Veteran did injure the left hip in service resulting in a left hip strain. However, evidence from service and current examinations have demonstrated that the left hip strain resolved following treatment. There is no current left hip strain diagnosis in the VA treatment records, or in any of the VA examinations. The VA treatment records were silent for any left hip disorder; likewise the November 2011 examiner noted a normal examination with only radicular-type symptomatology. While the February 2012 examiner "diagnosed" a left hip strain in that examination, he noted that it was diagnosed in 1959; the Board finds that this is merely a reporting of the Veteran's 1959 left hip strain shown in his service treatment records and is not a reflection of his current diagnoses. Such a finding is supported by the fact that two subsequent disabilities-bursitis and sciatica-were diagnosed at the same time, with the diagnosis date the same as the examination date. Moreover, the May 2012 examiner noted the left hip strain diagnosis in the previous examination, but noted that it was in the past and had resolved. Such a finding is supported by the service treatment records and the Veteran's lay testimony in his July 2011 hearing. During that examination, no left hip strain was diagnosed. Consequently, the Board finds that left hip strain is not a current disability; it resolved shortly after the left hip injury in service and was not exhibited any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." (Emphasis added)). There are two current diagnoses: left sciatica and greater femoral trochanteric bursitis of the left hip. The Board additionally concedes that an in-service injury or event occurred, as documented and confirmed by the January 1959 service treatment records revealing a skiing accident that resulted in a left hip strain. Thus, the first and second elements of service connection have been met. The Board notes some inconsistency with regards to the onset of his current left hip symptoms. In his July 2011 hearing, the Veteran testified that after his ski accident in service his left hip did not bother him until approximately 1986; during at least one VA examination, however, he noted that he had symptoms since the accident in service. The Board finds that such hearing testimony is inherently more credible than statements made to a compensation and pension examiner in this case, particularly given the Veteran gave an oath during the hearing. That hearing testimony additionally is consistent with the Veteran's report of medical history regarding symptoms in his first VA examination in November 2011. Accordingly, the Board does not find consistent, credible lay testimony of continuity of left hip symptoms since service. Turning to the nexus requirement, the Board finds that while the Veteran claims that his current left hip disability is the result of his ski accident in 1959 during service, the Veteran is not competent to make such an assertion as he is not a medical professional. See Jandreau, supra; Jones, supra. This leaves the Board only with the opinions by the November 2011, February 2012, and May 2012 examiners. Those examiners' opinions do not provide a basis for finding a nexus in this case. First, the November 2011 examiner's opinion is limited by the fact that he did not have the claims file. However, while not opining as to whether any diagnosis was linked to service, the examiner did note that he felt that the current symptoms demonstrated at that time were more likely radicular-type symptomatology attributable to his lumbar spine disorder or some other disease process. Admittedly, without the claims file, such an opinion is somewhat speculative and has weak probative value; however, the Veteran did adequately provide that examiner with a correct medical history that included the presence of a lumbar spine disability, which does not make it totally void of probative value. More importantly, the February 2012 and May 2012 examiners' opinions together form the basis of the Board's finding in this case. After examination, the February 2012 examiner opined that the Veteran's sciatica was related to his lumbar spine disorder and that his bursitis was related to his gout. While that examiner does not clearly explain those findings, the May 2012 examiner's opinion does. The May 2012 examiner notes that there is no evidence of trochanteric bursitis in service or for many years thereafter. He specifically noted that there is no chronicity of symptomatology which would link any current disorder to service; the Veteran's hearing testimony supports this finding. Likewise, the examiner noted that the Veteran's left hip strain resolved in service and that there was no chronic disorder at discharge. These findings support the February 2012 examiner's opinion that the bursitis is not related to the military service accident. With regards to the sciatica, it was not exhibited within the first post service year and is not an intrinsic hip disability, but rather stems from complications with his lumbar spine disorder. This additionally supports the February 2012 examiner's opinion that the Veteran's sciatica is not related to the military service accident. This finding is also supported by the Veteran's statements that he was told by various VA doctors that his left hip symptomatology was related to his sciatica and not left hip arthritis. The evidence of record does not demonstrate at least an equipoise of evidence that the Veteran's currently diagnosed left sciatica or greater femoral trochanteric bursitis of the left hip are related to his military service, to include the noted ski accident in 1959. Accordingly, the Board finds that service connection for a left hip disorder is not warranted on the basis of the evidence of record; that claim must be denied at this time. See 38 C.F.R. §§ 3.102, 3.303. In reaching the above conclusions, 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a left hip disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs