Citation Nr: 1319001 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 07-00 295A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a scintillating scotoma, claimed as retinal condition. 2. Entitlement to service connection for degenerative joint disease (DJD) of the left hip. 3. Entitlement to service connection for DJD of the right hip. 4. Entitlement to service connection for sciatica of the left hip/leg. 5. Entitlement to service connection for sciatica of the right hip/leg. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty during the following periods: November 1990 to April 1992; January 1997 to June 1997; January 1999 to July 1999; November 1999 to September 2001; November 2001 to November 2002; and March 2003 to September 2003. The Veteran had additional service with the United States Navy Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Washington, DC Department of Veterans Affairs (VA) Regional Office (RO). The Roanoke, Virginia RO has assumed jurisdiction. These matters were previously remanded by the Board in October 2010 and January 2013 for further development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have a current eye disability, to include scintillatory scotoma. 2. DJD of the bilateral hips did not have onset in service, nor was arthritis of the bilateral hips manifest in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current DJD of the left and right hips is etiologically related to her active service. 3. The Veteran's sciatica of the left hip/leg is causally related to her service-connected lumbar spine disability. 4. The Veteran does not have a diagnosis of sciatica of the right hip/leg. CONCLUSIONS OF LAW 1. The criteria for service connection for scintillating scotoma have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for DJD of the left or right hips have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for sciatica of the left hip/leg have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 4. The criteria for service connection for sciatica of the right hip/leg have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2003, June 2004, November 2010, May 2011, and November 2011 that fully addressed all notice elements. The March 2003 and June 2004 letters were sent prior to the initial RO decision in these matters and informed the Veteran of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. Furthermore, the November 2010, May 2011, and November 2011 letters provided the Veteran notice in compliance with Dingess. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and pertinent postservice treatment records. She was afforded VA medical examinations in May 2011 and March 2013. As discussed herein, the Board finds that those examinations are adequate for decisional purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of her 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). II. Legal Criteria and Analysis The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases (to include arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). 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). Effective October 10, 2006, § 3.310 was revised to implement the Allen decision. The revised § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that to grant service connection on the basis of aggravation there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. For secondary service connection to be granted, generally there must be (1) medical 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). Scintillating Scotoma The Veteran contends that she is entitled to service connection for scintillating scotoma, as such disability was incurred in active service and persisted since. A review of the Veteran's service treatment records (STRs) shows that while on active service in November 1991, she was treated for an episode of flashing sensations and a decreased visual field in her left eye that lasted for approximately thirty minutes. She was assessed with a possible scintillating scotoma and she was referred for an eye evaluation. During a December 1991 eye evaluation, the ophthalmic findings were unremarkable. The examiner explained that the symptoms she had experienced could have been caused by a migraine type phenomena or an early vitreous separation. The treatment provider also stated that he doubted the symptoms were serious, but any further symptoms should be evaluated. Subsequent STRs show no further complaints or diagnosis of scintillating scotoma; however, there are intermittent complaints of focusing problems noted on eye examinations. Private treatment records show that the Veteran receives relatively regular eye examinations. These records include reports of floaters in her vision, some difficulty focusing at a distance, and decreased visual acuity. There is no indication from these records, however, that these symptoms were attributed to a diagnosis of scintillating scotoma. A February 2005 private treatment record shows that the Veteran was seen at Georgetown University Hospital's Center for Sight. Eye examination showed evidence of early nuclear sclerosis and peripheral retinal reticular degeneration and small amounts of cobblestone retinal degeneration. The Veteran was afforded a VA examination in March 2013. At that time, she reported blurred vision prior to cataract surgery in January 2010, which had resolved since the surgery. [The Board notes that the Veteran was denied service connection for cataracts in a January 2008 rating decision and that issue is not currently before the Board.] The examiner noted the Veteran had a 2010 diagnosis of pseudophakic, bilaterally; however, on examination, the Veteran did not have any current eye disability. As no eye disability was found on examination, the VA examiner opined that the claimed condition was less likely than not related to her active service. Based on the evidence of record, the Board finds that service connection for scintillating scotoma is not warranted. While there is evidence that she suffered from an episode of possible scintillating scotoma while on active service in November 1991, the evidence of record suggests that this episode was acute and transitory and did not recur. The Board acknowledges that the Veteran has continued to seek ongoing care for her eyes, and has since been diagnosed and treated for bilateral cataracts; however, this issue is not currently before the Board, and there is no evidence of record showing that the Veteran's cataracts are related to the episode of scintillating scotoma in active service. Additionally, at her March 2013 VA examination, the Veteran was not found to have any current eye disability. Under 38 U.S.C.A. § 1110, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As the Veteran has not been diagnosed with a current eye disability, to include scintillating scotoma, service connection for such disability is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). DJD of the Left and Right Hips The Veteran contends that she is entitled to service connection for DJD of the left and right hips, as such was caused by her active duty service. A review of the Veteran's STRs is silent for any complaints of or treatment for DJD of the bilateral hips. A medical evaluation conducted prior to her October 2003 retirement indicated that the Veteran had a number of medical problems that required further evaluation. However, there is no indication from the report of this medical evaluation that she had any trouble with either of her hips at that time. The Board notes that the Veteran filed a claim for service connection for pain in her hips in May 1993. However, after a May 1993 X-ray revealed normal hips, bilaterally, she was denied service connection in a September 1993 rating decision. VA treatment notes of record show that the Veteran receives relatively regular treatment for pain in various joints and that in February 2005 she began complaining of bilateral hip pain; however these records contain no indication that any hip disability is related to her active service. An August 2006 private treatment record shows that the Veteran was being treated with physical therapy for right hip pain. An X-ray report shows a diagnosis of DJD of the bilateral hips. However, an accompanying treatment record notes that radiograph images showed mild osteoarthritic changes in her right hip with mild protrusio deformity on the right side and a similar deformity on the left side with no degenerative changes. This treatment record does not relate the Veteran's hip disability to her active service. A November 2010 private X-ray of the Veteran's right hip showed advanced osteoarthritic changes, including ring osteophyte formation at the femoral head, as well as joint space narrowing. There was no fracture or ossification evident. There is no indication that these findings are causally related to her active service. The Veteran was afforded a VA examination in May 2011. At that time she reported discomfort in both hips, worse in the right than the left. She reported that her hips began bothering her during the first Gulf War. The examiner noted that there were various X-ray findings of record, including October 2009 X-rays of the bilateral hips that showed degenerative changes of the right hip joint and no abnormality of the left hip. After examination, the VA examiner diagnosed mild to moderate osteoarthritis of the right hip and a normal left hip. The examiner opined that the Veteran's bilateral hip degenerative arthritis was not related to or caused by her active service. The examiner explained that while the Veteran reported her right hip began bothering her sometime before 2003, her medical evaluation performed just prior to her retirement in October 2003 was very detailed and there was no mention of a diagnosis of DJD in either hip; nor were there medical records documenting any complaints of or injuries to her hips. Therefore, the examiner opined that there was no nexus or association with her current bilateral hip condition and her active service. The Board acknowledges that in 2006, the Veteran was diagnosed with DJD of the bilateral hips, but that subsequent X-ray findings have shown that her left hip is normal. However, while there may be some question as to whether the Veteran actually has DJD of the left hip; the Board notes that it is not in dispute that the Veteran has a current diagnosis of DJD of the right hip. What remains for consideration is whether the Veteran's DJD of the right hip, and possibly of the left hip, is etiologically related to her active service. Upon review of the evidence, the Board finds that service connection for DJD of the left and right hips is not warranted. In this regard, the Board notes that at her May 2011 VA examination the Veteran reported that her right hip pain began sometime before 2003 and that her left hip began bothering her a few years after the right. However, the Veteran's STRs are silent for any complaints, treatment, or diagnoses of DJD. Additionally, there is no indication from the Veteran's STRs that she suffered an injury or event in service that would have caused her current DJD of the left and right hips. Additionally, the first postservice treatment record indicating the Veteran sought treatment for her right hip pain is not until 2005 and she was not diagnosed with DJD until 2006. While the Board notes that this is somewhat close in time to her retirement from service, it is not sufficient to show that the Veteran's right and left hip DJD was manifested during active service. Accordingly, service connection for DJD of the left and right hips on the basis that such disability became manifest in service, and persisted, is not warranted. As there is no x-ray evidence that the Veteran was diagnosed with arthritis of the left and right hips in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions. 38 C.F.R. § 3.309(a). The only medical evidence of record that addresses the matter of a nexus between the Veteran's current DJD of the left and right hips and her active is the May 2011 VA examination report. As noted above, the May 2011 VA examiner opined that the Veteran's DJD of the right hip was less likely than not related to her active service, and after examination her left hip was found to be normal. As the examiner (a trained medical professional) expressed familiarity with the record, and provided explanations of rationale for his opinion (observing that there was no evidence the Veteran complained of problems with her hips or sustained any injury to either of her hips while on active service and a very thorough examination prior to her retirement did not include any notation that she had a problem with either of her hips prior to separation), his opinion is probative evidence in this matter. Because there is no competent medical evidence to the contrary, the opinion is persuasive. The Board acknowledges the Veteran's assertions that her DJD of the left and right hips was caused by or is related to her active service. However, while the Veteran may sincerely believe that her bilateral hip DJD is etiologically related to her active service, her statements are not supported by the medical evidence or record. Additionally, as she is a layperson without the specialized training necessary to address a complex question with respect to the etiology of her bilateral hip DJD, and she does not cite to any supporting medical texts or treatises, she is not competent to provide a nexus opinion. See Jandreau, 492 F.3d 1372, 1374, 1377. To the extent that she is competent, the Board nevertheless finds that the thorough VA medical examination and opinion is afforded greater probative weight and constitutes the most persuasive evidence concerning the etiology of the disability. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's DJD of the left and right hips is related to her active service. Accordingly, the benefit of the doubt rule does not apply, and the appeal must be denied. Left Side Sciatica The Veteran claims she is entitled to service connection for left hip/leg sciatica; as such disability was incurred in service, to include as secondary to her service-connected low back disability. A review of the Veteran's service treatment records shows that on numerous occasions, she complained of intermittent left side sciatic pain. No specific cause or origin was noted. The Veteran was afforded a VA examination in May 2011. At that time she reported her symptoms of left hip/leg sciatica began sometime around 1991 or 1992. She reported that her symptoms were intermittent and that she attended physical therapy for her left hip/leg sciatica and that this provided some relief. The VA examiner noted that the Veteran was diagnosed with DJD of the lumbar spine in 1993, and he opined that the Veteran's left hip/leg sciatica was at least as likely as not related to her service-connected low back disability. The evidence of record demonstrates that the Veteran has sciatica affecting her left hip and leg. Specifically, the Veteran's STRs show that she has consistently complained of sciatica pain since active service and on May 2011 VA examination, the examiner noted the Veteran's reports that she developed left side sciatica sometime in 1991 or 1992 and that the symptoms were intermittent with periods of remission. The first Wallin element has clearly been satisfied. Further, the Board notes that the Veteran is service-connected for DJD of the lumbar spine. The second Wallin element has also been met. What remains to be established is whether the Veteran's sciatica was caused or aggravated by her service-connected lumbar spine disability. As noted above, the May 2011 VA examiner opined that the Veteran's left side sciatica was at least as likely as not related to her low back disability. There are no contradictory medial opinions of record. The third Wallin element has therefore also been satisfied. In sum, because each of the three Wallin elements has been met, service connection for left hip/leg sciatica is warranted. Right Side Sciatica The Veteran claims she is entitled to service connection for right hip/leg sciatica; as such disability was incurred in service, to include as secondary to her service-connected low back disability. A review of the Veteran's STRs is silent for any complaints of or treatment for right hip/leg sciatica pain. As noted above, there are numerous complaints of left side sciatica pain. On May 2011 VA examination, the Veteran did not complain of right hip/leg sciatica pain. She did not report any past treatment for right hip/leg sciatica pain. The VA examiner opined that as the Veteran did not complain of right hip/leg sciatica during the examination, nor did she complain of radicular sciatic problems during prior physical therapy, there was no associated cause or nexus to her active service. Additionally, the Board notes that the Veteran does not have a current diagnosis of right side sciatica. Under 38 U.S.C.A. § 1110, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As the Veteran has not been diagnosed with a right hip/leg sciatica, and she did not complain of any right hip/leg sciatica symptoms at the May 2011 VA examination, service connection for such disabilities is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for scintillating scotoma is denied. Entitlement to service connection for DJD of the left hip is denied. Entitlement to service connection for DJD of the right hip is denied. Entitlement to service connection for sciatica of the left hip/leg is granted. Entitlement to service connection for sciatica of the right hip/leg is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs