Citation Nr: 1319675 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 00-12 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left hip disorder, to include as secondary to the Veteran's service connected disabilities. 2. Entitlement to service connection for a right knee disorder, to include as secondary to the Veteran's service connected disabilities. 3. Entitlement to service connection for a cardiovascular disorder (other than as secondary to a service connected psychiatric disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded in August 2009, March 2011, and December 2012 for further development. The Board notes that pertinent VA outpatient treatment records are located in Virtual VA. Instead of paper, Virtual VA is a highly secured electronic repository is used to store and review every document involved in the claims process. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Board acknowledges that the claims for service connection for a left hip disorder and a right knee disorder were previously characterized as inclusive of service connection secondary to a service-connected left knee disability. However, as the Veteran also contends that his left hip and right knee disorders may be secondary to his service-connected lumbar spine disabilities, the claims have been recharacterized to reflect inclusion of service connection secondary to service connected disabilities. When determining the scope of an issue on appeal, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits in support of that claim. Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Accordingly, the Board finds that the claims on appeal should be broadly characterized to include service connection secondary to service-connected disabilities. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cardiovascular disability secondary to a service-connected psychiatric disability was raised in the Veteran's April 2013 statement but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The claim was previously denied by the Board in April 2006. Therefore, the Board does not have jurisdiction over it at this time and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for a right knee disorder and a cardiovascular disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT At no time during the pendency of the appeal does the Veteran have a current left hip disorder. CONCLUSION OF LAW The criteria for the establishment of service connection for a left hip disorder, including as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (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). 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, none is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in April 2006, sent prior to the initial unfavorable decision issued in June 2007, of the criteria for establishing service connection for a left hip disorder, including as secondary to service-connected disabilities, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The letter also notified him of how VA determines disability ratings and effective dates if service connection is awarded. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In compliance with its duty to assist, the RO associated the Veteran's service treatment records, VA outpatient treatment records, and private treatment records with the file. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional evidence that is necessary for a fair adjudication of the claim that has not been requested or obtained. Additionally, the Veteran was afforded a VA examination in November 2007, which as discussed in the December 2012 Remand, was incomplete with regard to the left hip. Pursuant to the December 2012 Remand, the Veteran was afforded another VA examination in February 2013. The Board finds that the February 2013 VA examination was adequate as the examiner reviewed the claims file, conducted a thorough interview with the Veteran regarding his history and symptoms, and completed the appropriate tests. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). No additional assistance is required to fulfill VA's duty to assist. 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). II. Service Connection In the present case, the Veteran claims entitlement to service connection for a left hip disorder as secondary to his service-connected left knee and/or lumbar spine disabilities. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Generally, for service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(table). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply only to the chronic diseases defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). In addition to the regulations cited above, service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The revised regulation requires comparison of the baseline level of severity of the disorder in the absence of the service-connected disability to the increased severity, and provides compensation only if there is an increase in severity. 38 C.F.R. § 3.310 (2012). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. Ap. 49 (1990). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In the present case, the Veteran complains of left hip pain. He argues that the lack of a left hip-related diagnosis following the most recent VA examination should not rule out service connection when the condition has been previously identified. The Board does not agree, and his claim fails for lack of a current diagnosis. As noted above in the Wallin case, a claim fails when the first element of service connection, a current diagnosis, is not met. The Veteran underwent a VA examination in November 2007. At that time, the VA examiner made a diagnosis of lumbar spondylosis with left-sided radiculopathy (the patient complains of pain into the left hip, down the thigh and particularly in the calf. The lack of a left hip diagnosis was based on a "hip" (singular) X-ray; however, it was unclear which hip was X-rayed as the right hip was assessed as normal. It is reasonable to assume that the physician referred to the left hip as the matter had been referred for examination of the left hip by the RO. See examination request dated in October 2007. The examiner found that it was less likely than not that the symptoms the Veteran has in the left hip are related to his left knee. He found that the Veteran's left hip pain was related to "normal aging processes in a radicular fashion on the left side from his lumbar spondylosis." When the appeal was reviewed in December 2012, the Board determined that the above examiner's opinion appeared to attribute the left hip pain, at least in part, the Veteran's service-connected chronic lumbar strain with spondylosis. This requrest was clearly in error as the Veteran is not currently in receipt of service connection for chronic lumbar strain with spondylosis. This statement was made in error in the 2013 Remand, and the Board apologizes for the error. Another examination was ordered and conducted in February 2013. The February 2013 VA examiner completed a Disability Benefits Questionnaire (DBQ) and clarified that the Veteran did not have a left hip condition and in fact had never had a left hip condition. Notably, the Veteran reported to the examiner that he had been told his hip pain was actually a low back issue. The examiner noted that the Veteran did not have any symptoms for the hip joint itself. The examination report noted that the Veteran had limitation of motion in the left hip. The examiner explained that there were some body habitus issues with range of motion in the hips, namely abdominal obesity. The examiner noted that the Veteran stopped range of motion in the left hip with complaints that his low back hurt and he deferred any attempt at further range of motion, including passive range of motion testing. A February 2013 X-ray of the left hip, done in connection with the VA examination, demonstrated no evidence of fracture, dislocation, bone destruction, or foreign body. The X-ray report also noted that there was no significant erosion, osteophytic change, or joint space narrowing. The X-ray also noted some lower left quadrant mesh material present. The Board notes that the Veteran has a history of left inguinal hernia repairs. The final impression was no acute osseous findings. Ultimately, the VA examiner concluded that there was no chronic left hip condition. The examiner cited the foregoing test results and explained that they were normal objective findings. This evidence does not show a currently-diagnosed left hip disorder, and weighs against a finding of service connection because the first element of service connection is not demonstrated. A review of the other VA treatment records and private treatment records show that none show evidence of a left hip disorder. The Board has considered that the Veteran was admitted to a VA hospital in April 2003 with complaints that included left hip pain. X-rays taken at admission did not show any fracture or acute process. The examining physician noted that the Veteran did not have any signs of acute arthritis. A contemporaneous MRI revealed a small left protruded disc at L5-S1 without nerve impingement. The Veteran was prescribed pain medication. This evidence does not show a disability or disorder of the left hip and the Board finds that the first element of service connection is not demonstrated. Also for consideration is a July 2008 VA X-ray which indicated minimal degenerative changes of the bilateral hips. This is contrasted with a later X-ray of the left hip in February 2010 VA which showed that the left hip was well maintained, had no gross degenerative changes and that the musculature was unremarkable. The Board places a high probative value on the February 2013 VA examiner's opinion that the Veteran has never had a left hip disorder as this opinion was rendered following a review of the claims file, which includes complaints of left hip pain as well as seemingly conflicting X-ray reports, as well as a thorough interview with, and examination of, the Veteran. The later X-rays of the left hip along with the VA examiner's opinion outweigh the findings made in July 2008. The Board has seriously considered the Veteran's contention that he has a current left hip disability that is related to his service-connected disabilities. As a layperson, the Veteran is not competent to offer a diagnosis of a left hip disability because he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the expertise of a medical professional. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of a left hip disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As the objective medical evidence is against the finding that the Veteran has a left hip disability, the Board finds that he does not have a current diagnosis of left hip disability. Accordingly. service connection for a left hip disability is not warranted. For the foregoing reasons, service connection is not warranted for a left hip disorder. In reaching these decisions, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left hip disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left hip disorder is denied. REMAND Regarding the claims for service connection for a right knee disorder and a cardiovascular disorder (other than secondary to a service-connected psychiatric disorder), a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Regarding the claim for service connection of a right knee disorder secondary to service-connected disabilities, the Board finds that clarification of the February 2013 VA opinion is required. The December 2012 remand directed that the Veteran be afforded a VA examination regarding the right knee. He was provided the examination in February 2013. The VA examiner opined that there was no aggravation of the right knee disorder due to the service-connected left knee and/or lumbar spine disabilities. In the space provided to explain the examiner's rationale, the examiner merely restated the current left knee findings and noted that the opinion was based on a review of the record. The examiner did not provide any rationale for the opinion other than the fact that the record had been reviewed. As a complete rationale was not provided, the report is incomplete and an inadequate report upon which to base a decision. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). It is also unclear whether the examiner considered the Veteran's contention that he had an altered gait as a result of his left knee and/or lumbar spine disabilities, which affects his right knee. An August 2006 VA outpatient treatment record noted a change in the Veteran's gait pattern. The Board acknowledges that the treatment record only addressed the left knee and low back pain; however, the record supports the contention that there may have been a gait change. The examiner should address the effect of any gait change, on Remand. Regarding the claim for service connection of a cardiovascular disorder, a remand is required for treatment records as well as an addendum opinion. The Veteran submitted a statement in April 2013 indicating that there were recent emergency room treatment records relevant to the heart issue, at the "Hutchinson hospital". A review of the record reveals that the most recent VA treatment records were dated in March 2013, from Hutchinson VA community based outpatient clinic. Those records did not involve an emergency room visit. As the Veteran has indicated that there are outstanding treatment records, any relevant, outstanding VA treatment records must be obtained. The Veteran should also be asked to clarify whether the Hutchinson hospital is a private facility or a VA facility. If it is a private facility, he should be offered the opportunity to complete an authorization and consent form so that VA can request the records on his behalf. Additionally, clarification is required from the February 2013 VA examiner regarding any relationship between hypertension and service. The examiner noted that the Veteran reported hypertension since approximately 1995 and that he was on medication for hypertension, but when specifically asked whether the Veteran had hypertension on the Disability Benefits Questionnaire (DBQ), the examiner indicated that the Veteran did not have hypertension. Under McClain, the examiner should address any relationship between hypertension and service even if the Veteran was asymptomatic at the VA examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Indeed, the Board noted such requirement in the December 2012 remand directive. As such, an addendum opinion is required. See Stegall, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to identify the address of the facility (Hutchinson Hospital) from which he sought emergency treatment regarding a cardiovascular disorder, as noted in his April 2013 statement. He should be offered the opportunity to complete an authorization and consent form for any relevant records located at a private facility. If he responds with a completed authorization and consent form for a private facility, request the records from the facility. Any negative response should be noted. 2. Obtain any outstanding VA outpatient treatment records from the VA community based outpatient clinic in Hutchinson, Kansas, regarding any cardiovascular disorders for the period from March 2013 to the present. Any negative response should be noted. 3. Following receipt of the foregoing records, the claims file should be returned to the February 2013 VA examiner for an addendum opinion regarding a cardiovascular disorder. The claims folder and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. If the February 2013 examiner is unavailable, please forward the claims file to an appropriate medical professional to render an opinion regarding the following inquiry. The Veteran should not be scheduled for a VA examination unless the medical professional selected to offer an opinion deems an examination necessary in order to render the requested opinion. Following a review of the claims file, to include any recently received VA treatment records, the examiner is asked to clarify whether any diagnosed hypertension disorder is at least as likely as not related to service, even if the disorder resolved by the time of the February 2013 VA examination. The examiner is asked to explain the basis of any opinion reached. 4. The claims file should be returned to the February 2013 VA examiner for an addendum opinion regarding service connection of the right knee disorder. The claims folder and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. If the February 2013 examiner is unavailable, please forward the claims file to an appropriate medical professional to render an opinion regarding the following inquiry. The Veteran should not be scheduled for a VA examination unless the medical professional selected to offer an opinion deems an examination necessary in order to render the requested opinion. Following a review of the claims file, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran has a right knee disorder that is caused or aggravated by his service-connected left knee and/or lumbar spine disabilities. The examiner should consider the Veteran's contention that he had an altered gait due to his service-connected disabilities that affected his right knee. The examiner is asked to explain the basis of any opinion reached. 5. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________ ________________________ RONALD W. SCHOLZ MARK W. GREENSTREET Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ______________________________________________ MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs