Citation Nr: 1316802 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 03-22 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for disabilities of the left hip and leg, to include as secondary to service-connected lumbosacral strain with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that denied service connection for disabilities of the left hip and leg, and found that no new and material evidence had been submitted to reopen the claim for service connection for cranial nerve damage with diplopia. The RO in Newark, New Jersey has original jurisdiction over this case. This appeal was originally presented to the Board in August 2007, at which time it was remanded to schedule a Board hearing. In September 2007, the Veteran testified before the undersigned Veterans Law Judge, seated at the Newark RO. A transcript of that hearing is of record. In a March 2009 decision, the Board determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for cranial nerve damage with diplopia. The Board then remanded the underlying claim for service connection, as well as the claim for service connection for disabilities of the left hip and leg, for additional development. The claims were again remanded in December 2010 based on inadequacies in the medical opinions secured as a result of this development. In an August 2012 decision, the Board granted service connection for cranial nerve damage with diplopia. This grant constituted a full grant of benefits sought; the Veteran has not disagreed with either the effective date of service connection, or the disability rating initially assigned. As such, the Board will not further address the Veteran's service-connected cranial nerve damage with diplopia. In addition to granting the claim for service connection for cranial nerve damage with diplopia in the August 2012 decision, the Board again remanded the claim of entitlement to service connection for disabilities of the left hip and leg due to inadequacies in the medical opinion obtained following the December 2010 remand. The case now returns to the Board for appellate review. FINDING OF FACT The Veteran's disability of the left hip and left leg (pain associated with sacroiliac dysfunction) is associated with and encompassed by the orthopedic and neurological manifestations of his service-connected lumbosacral spine disability; there is no other disability unrelated to his service-connected lumbosacral spine disability causing his pain in his left hip and left leg. CONCLUSION OF LAW Disabilities of the left hip and left leg (separate and distinct from a service-connected lumbosacral spine disability) were not incurred in or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to disability compensation for pain in his left hip and left leg. He puts forth two different theories of entitlement for such compensation. First, he asserts that he injured his left hip and leg in an in-service motor vehicle accident, and that his current disabilities are related to the left hip and leg injuries sustained at that time. Alternatively, he asserts that he developed left hip and leg disabilities as a result of his service-connected lumbar spine disability, or that his left hip and leg disabilities are otherwise related to his lumbar spine disability. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify a claimant of the evidence that is necessary, or would be of assistance, in substantiating his or her claims, and to provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Further, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, notice was provided to the Veteran in July 2001, prior to the initial adjudication of his claim in February 2002. The Veteran was told it was his responsibility to support the claim with appropriate evidence, and he was provided with the text of the relevant regulations relating to VA's duties to notify and assist. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was provided with the Dingess elements of VCAA notice with respect to the claim in March 2006 correspondence. The claim subsequently was readjudicated after providing the Veteran with an opportunity to respond to the notice. Any timing deficiency was thereby cured. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (holding timing deficiencies in VCAA notice are cured by readjudication in a supplemental statement of the case). As such, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). In next addressing whether VA satisfied its duty to assist the Veteran with respect to his claim, the Board concludes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been associated with the claims file. 38 U.S.C.A. § 5103A. The Veteran's service treatment records and VA treatment records are in the claims file. VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified. 38 U.S.C.A. § 5103A(b)(1) (West 2002). He has not identified any other treatment records aside from those that are already of record. Thus, VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA is required to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Veteran was provided with examinations with respect to his claim in May 2009, February 2011, and August 2012. The inadequacies associated with the May 2009 and February 2011 reports of examination are harmless, given that VA thereafter obtained a thorough and adequately supported opinion in August 2012. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The August 2012 report of examination is consistent with the Veteran's outpatient treatment records, and the opinion provided by the examiner reflects that the examiner reviewed the material evidence of record. In addition, the examiner supported his opinion with a robust rationale, clearly explaining why a relationship between the Veteran's current complaints and his in-service injuries, or his service-connected lumbar spine disability, could not be established. As such, the Board concludes that VA obtained an adequate examination in this case. As an adequate opinion addressing the Veteran's claim is of record, the Board concludes that there has been substantial compliance with the Board's August 2012 remand directives, insofar as those directives included obtaining an additional medical opinion. As such, no further development in this regard is necessary. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). In September 2007, the Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned Veterans Law Judge. The record reflects that at this hearing the undersigned Veterans Law Judge set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim for service connection for disabilities of the left hip and left leg, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Based upon the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, in order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (2012). Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board now turns to the merits of the Veteran's claim. The Veteran's service treatment records show that he was involved in a motor vehicle accident in October 1972, as a result of which he sustained a compression fracture of the posterior portion of the body of the L5 vertebra. Notably, the Veteran complained of "pain on movement of his hip" when he was first examined following the incident, and demonstrated limited hip range of motion on physical examination. He was treated with bed rest followed by long term conservative care, but was unable to recover to the point of being able to resume his duties. As such, it was recommended in April 1975 that the Veteran be separated from service. On physical examination prior to separation from service, the Veteran complained of low back pain with any prolonged activity, including prolonged standing. His pain was noted to be located primarily in the left sacroiliac region. Aside from the initial complaint of hip pain in October 1972, the Veteran's service treatment records do not show specific complaints of pain in the left hip or leg, or that he was diagnosed with a specific disability of the left hip or left leg during his period of active service. VA clinical records dated in January 1990 show that the Veteran sought treatment for lumbar pain that he reported had progressively worsened. He denied experiencing any problems with his lower extremities. On physical examination, the Veteran was found to have decreased strength in his left hamstring. On follow up EMG testing in February 1990, occasional spontaneous activity in the left gluteus maximus was observed. All other muscles tested revealed no electrical abnormalities. The presence of occasional spontaneous activity in the left gluteus maximus was determined to be of questionable significance; overall, there was no evidence of lumbosacral radiculopathy in either the right or left lower extremity. On VA examination of the lumbar spine in February 1993, the Veteran complained of chronic low back pain every day with some radiation of pain to just above his left knee and slightly up along his spine. Stressing of the sacroiliac joints resulted in complaints of pain in the left sacroiliac region. The Veteran was diagnosed with chronic mechanical low back pain, probably secondary to left-sided sacroiliac dysfunction, with no evidence of a radiculopathy. A March 1993 rating decision shows that the neurologic component of the sacroiliac dysfunction was taken into consideration in assigning the Veteran an increased disability rating of 40 percent. On VA examination of the lumbar spine in August 2001, the Veteran complained of pain that occasionally radiated into his left lower extremity. EMG examination revealed no evidence of a left lumbosacral radiculopathy or peripheral neuropathy. There is no further record of evaluation of the lumbar spine until May 2009, when the Veteran again underwent VA examination of his lumbar spine. At the time of the examination, the Veteran reported that his back pain had continued to worsen over the years since the initial in-service injury. He had not, however, sought formal treatment for his pain. He described currently experiencing back pain with sitting and standing, but denied experiencing radiation of pain down the legs, and denied experiencing pain in his left hip. When asked to indicate where he experienced pain, the Veteran pointed to his left buttocks in the region of his sacroiliac joints. He stated that "this is the hip pain [he is] talking about." Physical examination resulted in diagnoses of lumbar degenerative disc disease; sacroiliac joint dysfunction; and normal left hip. The examiner specifically commented that physical examination revealed no evidence of a left hip disability. The Veteran next underwent VA examination of the lumbar spine in February 2011. At the time of the examination, he again indicated that although his back pain had continued to worsen since the initial in-service injury, he had not sought formal treatment for his back pain. Since the last VA examination, he had begun to experience pain that radiated down the left side of his back, through his left hip, into his left leg. Physical examination resulted in diagnoses of lumbar degenerative disc disease and normal left hip and left leg. In addressing whether the Veteran's left hip and left leg complaints were related to his active service, including the in-service back injury, the examiner opined that there was no relationship to service. In support of this conclusion, the examiner stated first that the Veteran currently had a normal left hip and left leg, and, based on a review of his service treatment records, he did not injure either his left hip or leg at the time of the motor vehicle accident. The examiner reasoned that had the Veteran injured his left hip or leg in service, he would have complained of those injuries at the time, but his records did not reveal any such complaints. As the February 2011 opinion was based on an inaccurate factual predicate (the Veteran's service treatment records did indeed show complaints of hip pain and limitation of motion), the Board remanded the claim for the purpose of forwarding the Veteran's file for review by an additional VA examiner. The Board expressly requested that the examiner offer an opinion addressing whether the Veteran's claimed left hip and left leg disabilities were related to injuries sustained in the in-service motor vehicle accident, to include complaints of left hip pain and demonstrated loss of left hip range of motion at that time. The Board instructed the examiner that in answering this question, the examiner should specifically state whether the claimed disabilities were separate and distinct from his service-connected degenerative disc disease and sacroiliac joint dysfunction, or whether they were instead manifestations of his service-connected degenerative joint disease and sacroiliac joint dysfunction. The requested VA opinion was offered in August 2012. Upon review of the Veteran's claims file, the examiner determined that it was less likely than not that the claimed conditions were incurred in or caused by an in-service injury, event or illness. In explaining the basis for this conclusion, the examiner noted that although the Veteran's service treatment records demonstrated complaints of hip pain and limitation of the range of motion of the hip, absent from the treatment records was an indication as to which side, left or right, the Veteran's complaints pertained. The examiner considered it to be significant that subsequent in-service orthopedic evaluation did not reveal any hip abnormality. As such, the examiner concluded that if the Veteran did indeed have pain on range of motion initially, it was resolved when evaluated by the orthopedic consultant. The Veteran's most recent left hip X-ray in February 2011 did not reveal any significant abnormalities including arthritis. Given that there was no intrinsic damage to the left hip currently, the examiner determined that it was most likely that his left hip pain was related to his lumbar spine pathology. There is no further evidence pertaining to the left hip or leg. In determining whether service connection for a disabilities of the left hip and leg is warranted, the Board has considered the Veteran's statements asserting a relationship between his left hip and leg and his active duty service. See 38 U.S.C.A. § 1154(a) (requiring that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits). In the instant case, the Board finds that although the Veteran is competent to describe his symptoms, as such requires personal knowledge rather than medical expertise, he is not competent to diagnose a disability of the left hip and leg or relate such disability to injuries sustained in service, including to a service-connected disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that knowledge, skill, experience, training or education is necessary for an etiological opinion where the veteran is not competent to identify the medical condition and its cause); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that a professional medical opinion is not required to establish a nexus if a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). As the Veteran is not competent to provide an opinion relating his complaints of left hip and leg pain to injuries sustained in service, his lay statements attesting to such a relationship are entitled to little probative weight. The preponderance of the evidence in this case demonstrates that the Veteran's left hip and leg complaints are related to his service-connected lumbosacral spine disability, insofar as they represent manifestations of that disability (specifically, sacroiliac joint dysfunction). At no time during the pendency of the appeal has the Veteran been diagnosed with distinct disabilities of the left hip or leg. Each VA examiner concluded that the Veteran had a normal left hip and leg, and the August 2012 examiner specifically concluded that the Veteran's complaints were related to his lumbar spine pathology, and did not constitute a condition beyond the spine. As the Veteran has not been diagnosed with a distinct disability of either the left hip or leg, a grant of service connection, on either a direct or secondary basis, is not warranted. Additionally, as the Veteran's left hip and leg pain is part and parcel of his service-connected lumbosacral spine disability, a separate grant of service connection for these complaints is not appropriate. See 38 C.F.R. §§ 4.14, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2012). Notably, the issue of the appropriate evaluation for the Veteran's lumbosacral spine disability is not currently in appellate status. As such, the Board will not further address the disability rating currently assigned for the Veteran's service-connected lumbar spine disability, except to note that the rating currently assigned does contemplate disability associated with sacroiliac joint dysfunction, the very complaints for which the Veteran now seeks service connection. Upon consideration of all of the evidence of record, the Board finds, for the reasons explained above, that the opinion of the August 2012 VA examiner is the most probative evidence of record and carries the most probative weight on the question of whether the Veteran's left hip and leg pain is related to his service, separate and apart from his service-connected lumbosacral spine disability. As the competent evidence of record weighs against the claim, service connection is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for disabilities of the left hip and left lower extremity is denied. ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs