Citation Nr: 1316669 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-24 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right hip disorder, other than radiculopathy of the right lower extremity, to include as secondary to a service-connected back disability. 2. Entitlement to service connection for a left hip disorder, other than radiculopathy of the left lower extremity, to include as secondary to a service-connected back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1984 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon denying, among other issues, service connection for a right hip disorder and a left hip disorder. These issues were previously remanded by the Board in September 2012 for further evidentiary development. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Portland, Oregon in September 2011. A written transcript of this hearing has been prepared and incorporated into the evidence of record. While the Veteran's appeal was pending before the Board, the Appeals Management Center (AMC) issued a decision in March 2013 granting the Veteran's claim of entitlement to service connection for a lumbar spine disability. Since this grant constituted a full grant of the benefit sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Service connection was also established for radiculopathy of the right and left lower extremities, resulting in pain to the buttocks and thighs. The issues of entitlement to service connection for right and left hip disorders were denied in a February 2013 supplemental statement of the case. The case was subsequently returned to the Board in April 2013. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in said file reveals that they are duplicative of the physical evidence in the paper claims file. FINDINGS OF FACT 1. The Veteran does not suffer from a disability of the right hip that manifested during, or as a result of, active military service, or, that is secondary to any service-connected disability. 2. The Veteran does not suffer from a disability of the left hip that manifested during, or as a result of, active military service, or, that is secondary to any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist Veterans 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This 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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) 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. A letter sent to the Veteran in July 2006 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation: to fully explain the issues and to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ identified the issues on appeal, and ensured that pertinent evidence and information was elicited to include any pertinent outstanding evidence not currently associated with the claims file that might substantiate the claims and the location, dates, and providers of the Veteran's care. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the appeal. Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting her in the procurement of service treatment records and any other pertinent medical 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). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in May 2009 and September 2012. The examinations are adequate for adjudicative purposes. Specifically, in September 2012, the Veteran's historical recollection and subjective complaints were considered, an examination was conducted, and the examiner rendered an opinion supported by a rationale. VA has also obtained the records of the Veteran's outpatient treatment with VA. Copies of the Veteran's private medical records have also been incorporated into the claims file. Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her 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). Additionally, the Board finds there has been substantial compliance with its September 2012 remand directives. The Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the Veteran for a medical examination and that she attended that examination. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be evidence, medical or in some circumstances lay, showing: (1) the existence of a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred 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, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In Walker v. v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Court held that continuity of symptomatology was not applicable because § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). In this case, a diagnosis of arthritis of the hips confirmed by x-ray findings has not been made. Thus, consideration of the Veteran's claim under this theory of entitlement is not warranted. Service connection may also be granted 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). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Facts and Analysis In May 2006, VA received a claim from the Veteran seeking service connection for "[h]ips secondary to back." She was subsequently denied service connection for a right hip disorder and a left hip disorder in an April 2007 rating decision. A timely notice of disagreement was received from the Veteran in November 2007, in which the Veteran asserted that her right and left hip disorders were both secondary to her back. The denial of these claims was continued in a May 2009 statement of the case which the Veteran appealed to the Board in July 2009. Subsequently, in a March 2013 rating decision, the Veteran was granted service connection for radiculopathy into the left and the right lower extremities, each rated at 20 percent. Her claims of entitlement to service connection for right and left hip disabilities were continued in a February 2013 supplemental statement of the case. A review of the Veteran's service treatment records fail to indicate treatment for, or complaints of, symptomatology involving either hip. The Veteran's December 1987 separation examination was deemed to be normal. While the treatment reports show complaints of low back pain with radiation, there is no evidence of any separate and distinct disability of the hips during active military service. Following separation from active duty, the Veteran was afforded a VA examination in July 1990. In part, the examiner observed that the Veteran limped a few steps, favoring the right hip but then walked normally. After examination, the examiner noted chronic pain at the lower lumbar spine and right buttock diagnosed as chronic muscular strain superimposed on developmental instability. No specific disability of either hip was diagnosed. The next evidence of record pertaining to the hips is the Veteran's claim of May 2006. She reported that her hip disorder began in 1984 and continued to the present. A May 2006 private treatment record from a physician with the initials J.D.H. reflects low back pain with left-sided leg symptoms. A magnetic resonance image (MRI) revealed lumbar disc protrusion with left-sided radiculalgia. A disability of the hips was not diagnosed at this time. The Veteran was afforded a VA examination of her joints in May 2009. After examination, the diagnosis was bilateral hip trochanteric bursitis superimposed on iliotibial band syndrome. The examiner concluded that there was no consistency in the right buttock pain that the Veteran complained of during service to the trochanteric bursitis and iliotibial band syndrome that was found upon the present examination. Therefore, the examiner was unable to resolve the etiology of the Veteran's bilateral hip disorder without resort to mere speculation. The Veteran was afforded a subsequent VA examination in September 2012. The Veteran reported that she suffered from lumbar pain that could radiate into either the left or right buttocks. The Veteran reported that it could become so serious as to radiate to the toes. After examining the Veteran's hips, the examiner concluded that the Veteran did not in fact suffer from a hip disorder. The hips showed a full range of motion, bilaterally, unchanged after three repetitions. There was some low back and left thigh pain with motion of the left hip, but this was noted to be consistent with a back disorder and not a hip disorder. The examiner explained that the Veteran's complaints of "hip" pain were buttock pain with radiation to the thigh. This was part of the symptomatology of her back disorder and not a separate disorder. The examiner concluded that the 2009 VA examiner was incorrect in assigning separate diagnoses of trochanteric bursitis and iliotibial band syndrome, which was noted to be a common mistake. The probative and persuasive evidence fails to demonstrate that entitlement to service connection for a bilateral hip disorder is warranted. Rather, the evidence establishes that the Veteran's claimed hip disorders are not related to service or to any service-connected disability. The Veteran's service treatment records fail to reflect a diagnosis of a hip disorder or even complaints of or treatment for chronic symptoms. While the Veteran was noted to have pain of the right buttocks during active duty, the September 2012 VA examiner explained that this symptom was due to radiculopathy stemming from a back disability - a disability for which service connection has already been established. There is no evidence of any other disorder or complaint involving the hips during military service. In fact, as noted above, the service treatment records recorded a disorder of the lumbar spine. The evidence also fails to show any diagnosis of a hip disability within a year of the Veteran's separation from service. Likewise, there is no competent and credible evidence of record creating a nexus between any current hip disorder and service or service-connected disability. The Board recognizes that a diagnosis of bilateral hip trochanteric bursitis superimposed on iliotibial band syndrome was assigned upon examination in May 2009. Nonetheless, the probative and persuasive evidence of record does not indicate a nexus between the current disorder and any event of service. Nor does the probative and persuasive evidence of record attribute the Veteran's hip disorder to any service connected disability. Instead, the VA examiner concluded that there was no consistency between this disorder and the right buttock pain experienced during military service. The September 2012 VA examiner also concluded that none of the Veteran's current symptoms were related to trochanteric bursitis, but rather were attributable to radiculopathy of the lower extremities. The Board acknowledges the Veteran's testimony and appellate assertions, in that she essentially attributes her pain to the claimed bilateral hip disorders. Nonetheless, the medical evidence establishes that the Veteran's pain stems from her service-connected lower lumbar disability which causes radiculopathy of the left and right lower extremities. To the extent that any bilateral hip disorder is present, the Veteran is not competent to establish a nexus between her disorders and service or any service-connected disability. A matter of such medical complexity requires medical expertise. Additionally, the competent and credible medical evidence opposes the Veteran's assertions. The 2012 VA examiner attributes the Veteran's pain to her service connected lumbar spine disability and its residuals. The examiner did not identify any separate and distinct hip disability, and to the extent that one is present, did not etiologically relate it to service or any service connected disability. As such, the Veteran's lay statements are not competent and credible and in any event, are clearly outweighed by the medical evidence of record. Accordingly, the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claims of entitlement to service connection a right or left hip disorder must be denied. ORDER Service connection for a right hip disorder is denied. Service connection for a left hip disorder is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs