Citation Nr: 1318611	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-48 152	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for degenerative joint disease (DJD) of the right hip (right hip arthritis), to include as secondary to calluses of the plantar surface of both feet (feet calluses).

2.  Entitlement to an increased rating for service-connected acromioclavicular joint separation with mild DJD of the left clavicle, rated 20 percent disabling. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L.J. Vecchiollo


INTRODUCTION

The Veteran served on active duty from September 1980 to September 1983.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 

The issue of entitlement to an increased rating for acromioclavicular joint separation is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. 

FINDINGS OF FACT

The weight of the competent evidence is against a conclusion that the Veteran's right hip arthritis is etiologically related to service or service-connected feet calluses; nor did it become manifest within one year of separation from service.

CONCLUSION OF LAW

Service connection for right hip arthritis is not warranted.  38 U.S.C.A. §§ 1110, 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  

The notice requirements apply to all five elements of a service connection claim: 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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).

The duty to notify was satisfied by a February 2009 letter which also advised the Veteran as to how disability ratings and effective dates are awarded, as required in Dingess.  See 19 Vet. App. at 486. 

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of Veteran's service treatment records (STRs) and pertinent treatment records and providing an examination and opinion when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  This was accomplished.  

Significantly, the record does not otherwise indicate any additional obtainable evidence that is necessary for a fair adjudication of the claims has been identified.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims decided herein.  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). 

II.  Analysis

Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b). 

If arthritis is not diagnosed during service, but is present to a compensable degree within one year following separation from service, service connection is warranted.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Service connection also is available on a secondary basis for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition.  38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

The Veteran's service treatment records, including entrance and discharge examinations are negative for any findings, complaints, or treatment of a right hip condition.  Post-service VA treatment records note that the Veteran complained of intermittent right hip pain in January 2007, and right hip pain, etiology unclear, was noted in August 2008.  

A VA examination was conducted in March 2009.  After review of the Veteran's claims file and examination, the examiner diagnosed right hip degenerative joint disease and opined that this condition is not caused by or of the result of the Veteran's time on active duty military service and is not secondary to or aggravated by his service-connected bilateral foot condition with calluses on plantar surface.  The examiner noted that there is no in-service documentation of a hip condition and that there is no reasonable medical rationale or logical reason for the Veteran's service-connected feet calluses to cause severe bilateral hip degenerative joint disease, and not also to have caused joint disease of the bilateral knees and ankles, which the Veteran did not manifest.  Therefore, the Veteran's service-connected calluses did not cause or aggravate the degenerative joint disease of the hips.  The Board affords great probative weight to this opinion.  In providing this opinion, this VA examiner considered the Veteran's pertinent medical and other history and, discussed the underlying rationale for this opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) 

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's right hip arthritis was caused or aggravated by his service-connected feet calluses, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

With no evidence of the claimed disability until almost 24 years after service, and none linking the disability to service or to his service-connected feet calluses; there is no basis in the record to award service connection. 

A reasonable doubt does not exist regarding of the claim.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and it must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

Service connection for right hip arthritis denied. 


REMAND

On his December 2009 substantive appeal, the Veteran reported that his acromioclavicular joint separation has significantly worsened since the VA examination in April 2009.  As the Veteran asserted a worsening of his disability and it has been more than four years since the most recent VA examination, the Board finds that a new examination is required before a final decision on the merits may be made.  As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (the duty to assist the veteran in obtaining and developing available facts and evidence includes obtaining a thorough and contemporaneous medical examination that considers the prior medical treatment records). 

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected acromioclavicular joint separation.  Then obtain and associate with the claims file, either physically or electronically, these records.  In any event, associate with the file the records of the Veteran's VA treatment for this disability dated since August 2008.  

2.  Then, schedule the Veteran for a VA joints examination to determine the current nature and severity of his acromioclavicular joint separation.  The Veteran's claims file should be provided to the examiner at the time of examination.  The examiner should conduct all indicated range of motion studies and describe in detail all symptomatology associated with the Veteran's service-connected acromioclavicular joint separation.  

The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right shoulder.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use.

3.  Then readjudicate the claim.  If the claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond.  

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs