Citation Nr: 1317326 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-27 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral hip disorder, to include as secondary to a service-connected lumbar spine or flat foot disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that, in pertinent part, denied service connection for a hip disorder, and declined to reopen the Veteran's previously denied claim for service connection for a low back condition. In December 2009, the Veteran presented sworn testimony during a Travel Board hearing in Atlanta, Georgia, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In May 2010, the Board reopened and granted the Veteran's claim of entitlement of service connection for degenerative arthritis of the lumbar spine and remanded his claim for service connection for a bilateral hip disorder to the Appeals Management Center (AMC) for further evidentiary development, including providing the Veteran with a VA examination to address his hip complaints. In October 2011, the Board again remanded the Veteran's bilateral hip claim to the AMC to obtain updated VA treatment records, attempt to obtain and outstanding private treatment records, and readjudicate the claim. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC provided the Veteran with a VA examination for his bilateral hips in July 2010 and obtained all updated VA treatment records. Additionally, a November 2011 letter from the AMC asked the Veteran to identify any outstanding private treatment records. A December 2011 report of telephonic contact indicated that the Veteran denied any non-VA treatment for his bilateral hip complaints. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT A preponderance of the evidence fails to establish that the Veteran currently has a left or right hip disability that is attributable to his active service. CONCLUSION OF LAW A bilateral hip disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. An October 2005 letter provided all required notice elements except information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. However, as the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess, supra. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination report are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. Notably, a December 2011 report of contact with the Veteran indicates that the Veteran has not received any private treatment with regard to his hip complaints. With respect to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran underwent a VA examination to evaluate his claimed bilateral hip disability in July 2010. The report from that examination has been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's personal hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the Veteran concerning his contentions regarding the etiology of his bilateral hip complaints. Specifically, the Veteran was advised to submit any outstanding private treatment records and the case was held open for 30 days to give him time to do so. The Veteran's testimony also triggered the Board's decision to Remand the matter to obtain the above referenced VA examination. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran has claimed he has a bilateral hip disability that is the result of his service-connected low back disability and/or his service-connected flat feet. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). 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) (2012). In order to establish service connection for a disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2012); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. A review of the medical evidence of record does not show the Veteran has a current right or left hip disability. Although VA treatment records reflect multiple complaints of hip pain, none of these treatment records associate a diagnosis with these complaints. Notably, the Veteran was afforded a VA examination in July 2010 to determine whether he had a current hip disorder. The examiner thoroughly examined the Veteran and ordered x-rays. Both the physical examination and x-rays were normal. The examiner concluded that the Veteran had normal hips with no diagnosable disorder. A September 2011 x-ray of the right hip was also negative for any diagnosable disorder. There are simply no diagnoses of a current right or left hip disorder in any of the medical evidence at any point throughout the appeals period. The Board notes that the VA treatment records do include several notations of hip pain. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Significantly, the physical examinations performed by the VA providers and at the time of the VA examination, as well as the two sets of x-rays obtained, found no evidence of a hip disorder. As such, the Board finds that the evidence does not show that the Veteran has a current left or right hip disability. Without such evidence, service connection for a bilateral hip disability cannot be granted. See Hickson, supra; Wallin, supra. Consideration has also been given to the Veteran's contentions that he has a current bilateral hip disability. However, the Board finds that his opinion is not competent evidence in this regard because he has not demonstrated the medical expertise needed to render an opinion on the nature of his hip pain or any associated diagnosis. Although it is error to categorically reject a non-expert medical opinion, not all medical questions are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a non-expert (a layperson) is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit stated that: "[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." See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together leads the Board to the conclusion that whether a non-expert diagnosis is competent evidence depends on the complexity of the particular question and whether or not a diagnosis could be rendered based on personal observation. In this case, the Board finds that a diagnosis cannot be rendered based solely on personal observation. While the Veteran is certainly competent to report that he experiences hip pain, he is not competent to attribute those complaints of pain to a particular diagnosis or any diagnosis at all. His assertions are therefore not competent evidence of a diagnosis of a bilateral hip disability. The Veteran's opinion would also be significantly outweighed by the negative opinion provided by the VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of the Veteran's complaints of hip pain. Given the competent medical evidence showing no bilateral hip disability, as already discussed above, the Board finds that the preponderance of evidence is against a finding that the Veteran has or had a bilateral hip disability throughout the appeals period. Accordingly, the Board finds that the claim of entitlement to service connection for a bilateral hip disability must be denied. In reaching this conclusion, 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 of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a bilateral hip disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs