Citation Nr: 1319431 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-24 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and several family members ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served honorably from November 2, 1977 to November 1, 1980. He also had service from November 2, 1980 to August 9, 1983, and was discharged under other than honorable conditions. As such, he is barred from receiving VA benefits as a result of this period of service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and several family members testified at a Board hearing at the RO in St. Petersburg, Florida in May 2011. A transcript has been associated with the file and has been reviewed. The case was brought before the Board in October 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. In November 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the November 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's current right hip disability did not have onset in service or within one year of service, and was not caused by or otherwise related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. 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. 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 claimant. 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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection 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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). 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). The Veteran is seeking service connection for a right hip condition, which he alleges developed from having sustained a right hip injury after slipping on ice and falling directly on the hip while participating in basic training exercises in Fort Dix, New Jersey. He further contends that he was not permitted to visit an orthopedic treatment provider at that time. The Veteran's service treatment records are negative for any complaints of or treatment for a right hip injury or pain. Service treatment records do show that in November 1977, the Veteran was placed on a physical profile for a week after suffering an abrasion to the left hip after slipping and falling asphalt. He was restricted from sit-ups and crawling. However, there are no further reports of either left or right hip problems. A physical examination at a VA medical facility in Miami, Florida in November 1983, several months after the Veteran's separation from service, did not note any hip problems. Physical Examination (November 18, 1983). At an April 1991 VA examination, the Veteran did not report any right hip pain, although he did complain of low back pain. He had normal range of motion of the hips. VA Compensation and Pension Examination (April 10, 1991). At an employment physical in September 1991, as part of a vocational rehabilitation program, the Veteran again did not report any complaints of or treatment for a right hip condition. The Veteran was found to be in adequate physical condition to perform any occupation, although he was referred for a psychological evaluation. Report of Dr. N.R.F. (September 27, 1991). In February 2011, the Veteran complained to his primary care physician of right hip pain on and off for several months. Admission/Discharge/Transfer Notes, North Dade Health Center (February 3, 2011). The Board notes that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Here the absence of any complaints of or treatment for a right hip disability for many years after service, as well as the Veteran's own report to his treatment provider in February 2011 that his symptoms are only of several months duration weigh against a finding that the Veteran's current right hip disability had onset in service or was caused by his active military service. At a May 2011 Travel Board hearing, the Veteran explained the circumstances of his in-service injury in the following exchange with his representative: A: Yes. I was apparently in formation marching, and slipped and fell, and I began to perspire and show off a little bit, and I slipped and fell on my hip. Q: Okay. The right hip? A: The right-I guess it was the right one. Hearing Transcript at 5 (May 12, 2011). When questioned what symptoms he had after falling, he responded that he had a "reddish scar", pain, and started to limp. Id. at 6-7. He further testified that his symptoms then went away for approximately thirty years before he again started to notice pain in the same location. Id. at 7. Two of the Veteran's family members testified that they remembered the Veteran complaining about pain in his right hip or right side after he returned home following his separation from service. Id. at 10-11. The Veteran was afforded a VA examination in November 2011. At this examination the examiner determined that the Veteran was not currently suffering from a right hip disorder. Following this examination, the VA obtained private treatment records from the North Dade Health Center. Specifically, a February 2011 x-ray showed that the Veteran suffered from mild right hip degenerative changes to include mild sclerosis of the right superior acetabulum with a small marginal spur. In January 2013, the Veteran was afforded a new VA examination. The Veteran told the examiner that he injured his right hip in 1977 when he slipped and fell on ice. He did not receive any treatment at that time. He complained of daily right hip pain which goes all the way down his right lower extremity, as well as into his back and arms. He also reported that he had never been evaluated or treated for a right hip condition and was not currently on any medications. The examiner was unable to test range of motion on an initial or repetitive basis, strength, or pain to palpation because the Veteran refused to cooperate, due to alleged pain and inability to lie down. The examiner diagnosed the Veteran with mild right hip degenerative joint disease. She conclude that the Veteran's right hip disability is less likely than not caused by his claimed in-service injury, noting that the only hip injury noted in the Veteran's service treatment records is to the left hip, not the right. Based on all the above evidence, the Board finds that entitlement to service connection for a right hip disability cannot be granted. Although the Veteran claims that he injured his right hip in service in a slip and fall accident, the Veteran's service treatment records are negative for any complaints of or treatment for a right hip injury or for any right hip problems. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, silence in a medical record can sometimes be relied upon as contradictory evidence; specifically, the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). For this negative inference to be made, the Board must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. Here, the Veteran's service treatment records include an enlistment physical, as well as treatment records spanning the length of the Veteran's service and dental records. Accordingly, the Board finds that the Veteran's service treatment records are complete in relevant part. Additionally, the Board finds that the alleged injury is of the type that would ordinarily be recorded in the Veteran's service treatment records had it occurred. As noted above, when the Veteran sustained an abrasion to his left hip, this injury was recorded and the Veteran was given a physical profile. Assuming he sustained a similar injury to his right hip, the Board would expect it to be recorded in a similar manner. Furthermore, the Veteran's service treatment records also show treatment for a range of complaints, including treatment for pharyngitis, viral syndrome, urethritis, rhinitis, headaches, jock itch, pseudofolliculitis barbae, and acne. Given the relatively minor nature of many of the complaints documented in the Veteran's service treatment records, the Board would expect any injury to the Veteran's right hip, even if not severe, to be recorded. While the Veteran claimed at his Travel Board hearing that he never reported the alleged injury to his right hip, the Board notes he also claimed that he "never reported in my entire Army career." See Hearing Transcript at 5 (May 12, 2011). This statement is incorrect as the Veteran's extensive service treatment records show that he frequently reported medical complaints, including those of a relatively mild nature. In light of such misstatements of fact, the Board finds that the Veteran cannot be considered a credible historian. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Additionally, the Board notes that the Veteran has a long history of paranoid schizophrenia, with frequent notations that the Veteran suffers from delusions. At one point during his Travel Board hearing, he appeared unsure about which hip he had actually injured and admitted that he has poor memory. See Hearing Transcript at 5, 15 (May 12, 2011). Thus, there is evidence to suggest that the Veteran's mental illness has negatively impacted the evidence and testimony he has submitted in support of his claim. Accordingly, for all the above reasons, the Board finds that the Veteran's accounts of his in service injury have limited probative value. Additionally, the Board gives little weight to the testimony of the Veteran's family that he complained of right hip or side pain following separation from service. These witnesses were testifying about events that happened almost thirty years ago and are motivated to assist the Veteran in establishing a claim for service connection. See Caluza, supra, at 510-511 (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board also notes that none of the witnesses described the Veteran's complaints as ongoing since service, but rather something he complained about immediately following his discharge. Finally, to the extent that the Veteran has offered his own opinion concerning the etiology of his right hip disability, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has right hip arthritis due to his alleged injury in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board notes that there is no competent medical evidence finding a relationship between the Veteran's disability and his military service. The January 2013 VA examiner is the only medical professional to address the etiology of the Veteran's right hip arthritis and she found no relationship between the Veteran's current disability and his military service. While the examiner acknowledged the Veteran's lay testimony of an in-service injury in her examination report, she ultimately found the contemporaneous medical evidence more probative. This evidence supports the finding that the Veteran's current hip disability had onset many years after service and is unrelated to service. As there is no evidence of a right hip disability in service or for approximately thirty years after service, as well as a negative nexus opinion, service connection for a right hip disability is denied. 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). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to 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. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in May 2008. The Veteran was informed of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, in fact providing additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). 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 service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The Veteran also submitted private medical records and was provided an opportunity to set forth his contentions during the May 2011 hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The Veteran's responses demonstrated he understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded VA medical examinations in November 2011 and January 2013. These examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Significantly, neither the appellant nor his 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 appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). ORDER Entitlement to service connection for a right hip disability is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs