Citation Nr: 1316848 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 01-07 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, to include arthritis in the right ankle with a history of peroneal nerve palsy and limitation of motion of the joint. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1981 and from June 1981 to December 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for a right hip disability was previously before the Board in October 2001, March 2009, July 2011, and August 2012, with remands being necessary for further development of the evidence. All actions required by the remands have been completed, and the claim is ripe for appellate review. In a September 2007 VA Form 9, Substantive Appeal, the Veteran indicated that he wished to appear at a videoconference hearing before the Board; he withdrew this request by August 2008 correspondence. 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2011). The Veteran's entire claims folder, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. In October 2001, March 2009, July 2011, and August 2012, the Board referred claims for service connection for a right foot disability and high blood pressure. It appears these issues were never developed for appellate review. In March 2009, July 2011, and August 2012, the Board also referred a claim for service connection for a sleep disorder, based on the Veteran's February 2008 and July 2008 submissions raising this issue. This claim has also not been addressed. Therefore, the issues of entitlement to service connection for a right foot disability, high blood pressure, and a sleep disorder have been raised by the record, but have not been adjudicated by the AOJ. The Board does not have jurisdiction over them, and they are once again referred to the AOJ for appropriate action. FINDING OF FACT The Veteran experiences right hip bursitis that is idiopathic in origin, and has degenerative joint disease that is related to aging; it is less likely as not that the right hip conditions are related, either causally or by aggravation, to service-connected right ankle pathology. CONCLUSION OF LAW Service connection for a right hip disability is not warranted. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of all five elements of a service connection claim. 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. This notice must also inform the Veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. In this case, the Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim for service connection. In addition, the Veteran received notice regarding the evidence and information needed to establish a disability rating and effective dates, as outlined in Dingess-Hartman. It is pertinent to note that the Veteran is represented by his state Veterans Service Organization (VSO), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. The Veteran was afforded comprehensive VA examinations to address his contentions, and the reports of these examinations, when taken together, are, for reasons discussed in detail below, adequate to resolve the issue on appeal. There is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disorders, such as arthritis, will be presumed to have been incurred in service if manifest to a compensable degree within the first post-service year. See 38 U.S.C.A. § 3.307, 3.309. Additionally, for those disorders listed as chronic in 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) allows for a Veteran to establish service connection based on a continuity of symptomatology. See Walker v. Shinseki, No. 2011-7184, slip op. at 13-14 (Fed. Cir. Feb. 21, 2013) (overruling Savage v. Gover, 10 Vet. App. 488 (1997)). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Analysis This case has a rather lengthy history of evidentiary development, and essentially, the claim arises from the Veteran's allegation that current hip disablement was either caused or aggravated beyond the natural course of the disease process by service-connected pathology, of both orthopedic and neurological origin, in the right ankle. The Veteran does not assert that the hip disability had causal origin in active military service (or within the first post-service year), and while there were some initial allegations of a continuity of generalized hip pain since service, it is apparent that he has since revised his allegations so as to focus on the secondary issue. Thus, the discussion will be limited to the secondary theory of entitlement. Essentially, the Veteran had a suicide attempt while on active duty (he is, currently, in receipt of a 100% schedular rating for schizophrenia). During this time, he fractured his ankle and had associated peroneal nerve palsy, the residual disability from which has been service-connected. He asserts that a right hip disability, diagnosed as bursitis and arthritis (degenerative joint disease) has arisen from the service-connected right ankle problems. The Board, upon receiving this case, has ordered several VA examinations to ascertain the etiology of the right hip disability. The Board determined that a June 2010 VA examination was inadequate, in that it right hip joint was not specifically addressed in the examination report. A subsequent review of the claim by that examiner in October 2010 also did not indicate that the right hip disability picture had been reviewed. In its June 2011 remand order, the Board directed that a new VA orthopedic examination be afforded which specifically addressed the etiology of the claimed right hip disability. Pursuant to this request, an examination was conducted in September 2011. This examination report was specific to the right hip; however, the Board noted that the only addressed pathology was that of bursitis. In this examination report, the Veteran reported onset of right lateral hip pain located over the greater trochanter within the few months prior to being examined. The Veteran specifically asserted that onset was gradual with no injury (i.e. he does not attribute it directly to service). The Veteran reported that there were no symptoms of any kind relating to active duty, and he received a local injection on May 9, 2011. The asserted to the examiner his belief that a current hip disorder is due to a peroneal nerve palsy sustained during an attempt to commit suicide while jumping out a building while stationed in Germany. The Veteran did sustain a calcaneal fracture at this time. Other than his recent onset right hip pain, the Veteran has not had hip symptoms and only has a limp when not wearing the brace, and then only after a considerable distance, resulting in fatigue of the anterior tibia muscle. At that time, it was reported that the Veteran had not had any more pain since the injection in May 2011. The examiner noted that imaging studies of the hip have been performed and the results are available, and that degenerative or traumatic arthritis was not documented. A conclusion was entered that it was less likely as not that there was any causal relationship between a current hip disability and the Veteran's service-connected disability. The examiner noted that there was no significant limp, and that even if one was present, it would not be realistically feasible to have a causal effect on the greater trochanteric bursa. It was noted that generally, trochanteric bursitis occurs without any known initiating even underlying condition. The examiner further went on to state that it was less likely as not that there was any aggravating effect caused by a service-connected disability. He stated that bursitis is not typically a prolonged or permanent condition and, in the Veteran's case, responded well to a single injection. The Board noted that while this examination was adequate with respect to discussing the Veteran's bursitis, that there was a history of arthritis that had been overlooked in the 2011 report (diagnosed in a 2006 VA examination). As this was the case, the Board dispatched the claim again for a new VA examination. The returned opinion, dated in October 2012, does contain a diagnosis of arthritis in the right hip. This finding was confirmed by X-ray studies, and the Veteran's in-service fall (which resulted in service-connected ankle disablement) was reviewed. It was noted that osteoarthritis results from a complex interplay of multiple factors, and that for most people, it is linked to aging, occupation, trauma, and repetitive "small insults" over time. A 2012 medical journal was cited in listing this explanation. The examiner reviewed the history and radiographic reports and, keeping in mind the above medical explanation for the usual causes for arthritis, determined that the it was "less likely than not" that right hip degenerative joint disease was caused by any service-connected disablement. The examiner determined that the Veteran's pathology was consistent with his age, and also because of this consistency and the nature of the present disability, there was no indication of aggravation beyond the natural course of the disease process. The Veteran clearly experiences bursitis and arthritis in his right hip, and thus, there is a current disability present for which service connection can be granted. There is limited evidence supportive of the onset of a chronic condition until very recently. Indeed, evidence received around the time of the initial claim for service connection, dated in October 2000, includes normal radiographic studies of the right hip, and degenerative joint disease, of a mild nature, appears to have arisen several years after this (assessed in a VA examination of 2006). With respect to a likely secondary etiology, the Board notes that the Veteran, while competent to report on his pain in the hip, does not have the requisite medical knowledge to opine as something as complex as a nexus between a nerve injury associated with his service-connected ankle disability and eventual arthritis in the right hip. That is, lay persons, while competent to address "simple" issues of causation, cannot address more complex questions regarding diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no doubt that the Veteran credibly believes that his right hip condition has causal origins with his service-connected ankle problems; however, his assertions on that point, without additional support from a medical professional, cannot be given much probative weight. Id. On the other hand, the September 2011 and October 2012 VA examiners have posited thorough VA examination reports which carefully considered the Veteran's history and his service-connected ankle disorders (with associated nerve injury and limitation of motion) resultant from the in-service suicide attempt. In noting this, and in noting the diagnosis of bursitis and arthritis obtained from objective and radiographic examinations, it was concluded that bursitis is generally idiopathic in nature (i.e. not having any known cause), and that the Veteran's arthritis, while something that is, potentially, related to trauma and numerous other factors, is, in the Veteran's case, consistent with the aging process. The Board notes that the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and when sound reasoning exists for the conclusion (not the mere fact that the claims file was reviewed). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the 2011 and 2012 VA examination reports are fully rationalized, and link the Veteran's right hip disablement to unknown causes (exclusive of service-connected ankle disablement) and to aging. The Veteran's orthopedic and neurological residuals in the service-connected right ankle were noted; however, in listing the nature of bursitis and arthritis, and in noting this while reviewing the objective results of examination, it was concluded that there was no likely relationship, either causally or by aggravation, between these disorders and the service-connected ankle pathology. The only evidence contrary to this comes from the Veteran's own assertions, and while he is competent to report his history of symptoms-and there is no doubt that he believes the veracity of his assertions-he simply does not possess the knowledge necessary to link his right hip bursitis and arthritis to service-connected ankle conditions. Simply, the Board must conclude that the evidence weighs against the Veteran's claim for service connection. The probative value of the medical opinions, which are decidedly against the Veteran's contentions, is greater than the Veteran's unsubstantiated assertions with respect to a secondary nexus. Accordingly, the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, to include arthritis in the right ankle with a history of peroneal nerve palsy and limitation of motion of the joint, is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs