Citation Nr: 1319770 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-10 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right ankle disability, claimed as gout, to include as secondary to the service-connected residuals of right knee fracture, status post open reduction/internal fixation, with bone graft and medial and lateral meniscus abnormalities and scarring. 2. Entitlement to service connection for a right hip disability, to include as secondary to the service-connected residuals of right knee fracture, status post open reduction/internal fixation, with bone graft and medial and lateral meniscus abnormalities and scarring (other than the service connected residuals of donor site grafting of the right iliac crest bone rated 10 percent disabling.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had active duty for training from May to July 1984, and from May to July 1985, with additional active service from March 1986 to July 2000. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. In a decision of November 2010, the Board denied entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension. At that same time, the Board remanded for additional development the issues of entitlement to service connection for chronic right ankle and right hip disabilities, claimed as secondary to the Veteran's service-connected right knee disability. The case is now, once more, before the Board for appellate review. It is noted that among the service connected disorders is the residuals of donor site grafting of the right iliac crest bone, rated 10 percent disabling. The claim concerning the right hip herein is for pathology separate and distinct from this service connected pathology. Nothing in the discussion below should be taken as concerning that already service-connected pathology. Finally, for reasons which will become apparent, the appeal as to the issue of service connection for a chronic right ankle disability is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDING OF FACT A chronic right hip disability is not shown to have been present in service, or at any time thereafter. CONCLUSION OF LAW A chronic right hip disability was not incurred in or aggravated by active military service, nor is it proximately due to, the result of, or aggravated by a service-connected disability or disabilities, including the service-connected residuals of right knee fracture. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in June 2005, March 2006, and November 2010 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no pertinent and available evidence suggesting that additional records have yet to be secured, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a hearing before the undersigned Veterans Law Judge in July 2010, as well as service treatment records, and both VA (including Virtual VA) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Moreover, during the personal hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c). Service Connection The Veteran in this case seeks service connection for a chronic right hip disability. In pertinent part, it is contended that the Veteran's right hip disability had its origin during his period of active military service from March 1986 to July 2000. In the alternative, it is contended that the Veteran's current right hip disability is in some way causally related to his service-connected residuals of right knee fracture. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Finally, service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of the disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2011). Finally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a Veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995). Pursuant to applicable law and regulation in effect prior to October 10, 2006, disabilities which are proximately due to or the result of a service-connected disease or injury are to be granted service connection. When service connection is thus established for a secondary condition, the secondary condition is to be considered a part of the original condition. See 38 C.F.R. § 3.310 (2006). In the present case, the Veteran's claim for service connection was received in June 2005. Accordingly, his claim is controlled by the more liberal provisions governing awards of secondary service connection in effect prior to October 10, 2006. In that regard, a review of the record discloses that service connection is currently in effect for the residuals of right knee fracture, status post open reduction/internal fixation, with bone graft and medial and lateral meniscus abnormalities and scarring. A 20 percent rating is assigned for this disorder. In addition, service connection is presently in effect for the residuals of right iliac crest bone graft (donor site), and a scar of the right hip, as well as bursitis of the left knee. That disorder is also rated 20 percent disabling. Service treatment records disclose that, at the time of Medical Board proceedings in March 2000, the Veteran received a diagnosis of chronic right hip pain, status post right bicortical iliac crest bone graft. At the time of a VA general medical examination in June 2001, the Veteran complained of pain on the right side of his hip radiating to the right side of the knee. According to the Veteran, this pain at times radiated to the left side of his lower back. Additionally noted was a complaint of right leg pain "on and off," with associated occasional numbness. On physical examination, evaluation of the motor system was 5/5 with normal bulk and tone. Reflexes were 2+, with downgoing toes. Tests of sensation revealed decreased pinprick in the area of the bone graft removal on the right iliac crest inconsistent with any dermatomal distribution. Additionally noted were complaints of "patchy areas" of decreased sensation in the right lower extremity, once again inconsistent with dermatomal distribution, and of no clinical significance. Range of motion measurements of the bilateral hips showed flexion to 120 degrees, with extension to 15 degrees, abduction to 15 degrees, adduction to 30 degrees, lateral rotation to 60 degrees, and medial rotation to 60 degrees. Radiographic studies of the Veteran's pelvis showed evidence of old trauma to the right iliac crest, which, in the opinion of the examiner, did not represent trauma, but, rather, a bone graft which had been taken out secondary to the Veteran's tibial fracture injury. The pertinent diagnosis noted was status post right iliac crest bone graft, with complaints of pain and numbness inconsistent with any dermatomal distribution. At the time of radiographic studies of the right hip conducted in April 2002, there was noted a history of unilateral hip pain, most likely referred from the knee or from an altered gait. Those studies showed evidence of well preserved joint spaces, with a normal appearing femoral head. No osteophyte formation was in evidence, though there was some slight enthesopathy of the right iliac wing. The clinical impression was of a radiographically normal right hip. At the time of a subsequent VA orthopedic examination in October 2005, it was noted that the Veteran's claims folder, as well as VA medical records were available, and had been reviewed. When questioned, the Veteran gave a history of a right tibial plateau fracture while in service in 1997, which required open reduction/internal fixation, as well as iliac crest bone grafting. Reportedly, since that time, the Veteran had experienced problems with right hip pain. While according to the Veteran, this pain improved following his surgery, approximately two years after that surgery, he began to experience more symptoms. Significantly, the Veteran's pain was not located over the scar, or the area where the graft had been taken. Rather, his pain was located more posteriorly, along the level of the posterior aspect of the iliac crest and into the right buttock. Significantly, when questioned, the Veteran denied any specific injury to his right hip at the time of his tibial plateau fracture. On physical examination, the Veteran was able to rise from a sitting position without significant difficulty. According to the examiner, the Veteran was not utilizing a cane. Examination of the Veteran's right hip showed a full range of motion without pain, characterized by flexion from 0 to 120 degrees, extension from 0 to 30 degrees, adduction from 0 to 30 degrees, abduction from 0 to 45 degrees, internal rotation from 0 to 30 degrees, and external rotation from 0 to 60 degrees. Significantly, the Veteran denied any pain in the groin area upon motion of his hip. Muscle strength was 5/5 throughout, and radiographic studies of the pelvis showed only an old graft site of the right iliac crest, with no other abnormalities. According to the examiner, the Veteran's iliac crest bone graft had been taken from his pelvis, the anterior aspect of his right iliac crest. In the opinion of the examiner, this bore "no relation" to the actual hip joint. Rather, the Veteran's right hip joint was within normal limits both on physical examination and via X-ray studies. Significantly, in the opinion of the examiner, there was "no evidence of right hip joint disability." Rather, given the Veteran's history, his symptoms were more consistent with lumbar spine disease. Accordingly, in the opinion of the examiner, it was not at least as likely as not that the Veteran had any right hip disability secondary to his previous right iliac crest bone graft. Rather, the majority of the Veteran's symptoms were secondary to lumbar spine degeneration that was unrelated to any injury sustained by the Veteran in service. At the time of a subsequent VA orthopedic examination in October 2006, it was once again noted that the Veteran's claims folder and medical records were available, and had been reviewed. Significantly, when questioned, the Veteran complained of right hip pain which had been present for a number of years. However, when further questioned, he pointed to the right paralumbar region, and not his hip joint. According to the examiner, the Veteran's activities were not limited by his right hip. Moreover, the Veteran described his hip movement as "OK." By the Veteran's own admission, he had sustained no trauma to his right hip, though there was a graft donor site in the area of the pelvic bone. On physical examination, the Veteran's right hip displayed a full range of motion, with bilateral abduction from 0 to 45 degrees and no pain; adduction from 0 to 20 degrees bilaterally with no pain; flexion from 0 to70 degrees bilaterally with no pain; and extension from 0 to 30 degrees bilaterally, once again, with no pain. At the time of examination, there was no pathologic diagnosis of any right hip condition. Moreover, according to the examiner, the Veteran's right hip displayed negative radiographic findings. An orthopedic evaluation conducted in 2005 indicated that the Veteran's claimed right hip disability was unrelated to his service-connected knee condition, a situation which had "not changed." The Veteran argues that his right hip pain had its origin during a period or periods of active service, or, in the alternative, that it is in some way causally related to his service-connected right knee disability. However, pain alone, absent a diagnosed underlying malady or condition, is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). While it is true that, in April 2002, there was noted a history of unilateral hip pain "most likely referred from (the) knee or from (an) altered gait," that history is entirely unsubstantiated by the evidence of record. As noted above, two VA examiners have determined that the Veteran does not, in fact, suffer from a chronic right hip disability. The opinions of those two VA examiners are highly probative, because their opinions were based upon full examinations, including both history and clinical findings, as well as a full review of the Veteran's claims folder and medical records. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The VA examiners discussed the Veteran's medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. See Hernandez-Toyens v. West, supra. Under the circumstances, a preponderance of the evidence is against the Veteran's claim for service connection. In reaching this determination, the Board acknowledges that, in evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, and as noted above, the Veteran has attributed his claimed right hip disability to his period or periods of active service, or, in the alternative, to his service-connected right knee disability. However, there currently exists no persuasive evidence that the Veteran suffers from any chronic disability of his right hip. The Board acknowledges the Veteran's statements regarding the origin of the disability at issue. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate his claimed right hip disability to his period or periods of active service, or to his service-connected right knee disability. The Veteran's statements and history, it should be noted, when weighed against the other objective evidence of record, are neither credible nor of particular probative value. Significantly, the Veteran, as a lay person, is not competent to create the requisite causal nexus for the disability at issue. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's claimed right hip disability with any incident or incidents of his period or periods of active military service, or with his service-connected right knee disability. Accordingly, the preponderance of the evidence is against the Veteran's claim, and service connection for the disability in question must be denied. ORDER Entitlement to service connection for a right hip disability, to include as secondary to the service-connected residuals of right knee fracture, status post open reduction/internal fixation, with bone graft and medial and lateral meniscus abnormalities and scarring, is denied. REMAND In addition to the above, the Veteran in this case seeks entitlement to service connection for a chronic right ankle disability. In pertinent part, it is contended that the Veteran's right ankle disability (claimed as gout), is in some way causally related to his service-connected residuals of right knee fracture. In that regard, the Board notes that, at the time of the aforementioned VA orthopedic examination in October 2006, it was noted that the Veteran suffered from minimal/mild degenerative joint disease in his right ankle which was "consistent with his age and body habitus," and unrelated to his 1997 inservice injury. However, no opinion was offered as to whether the Veteran's current right ankle disability had been/was in some way aggravated (permanently made worse) by his service-connected right knee disorder. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Such an opinion is necessary prior to a final adjudication of the Veteran's claim for service connection. Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to October 2011, the date of the most recent VA outpatient treatment of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran's entire claims folder should then be furnished to the same VA examiner who conducted the aforementioned VA orthopedic examination in October 2006, or to another appropriate VA examiner, should that physician prove unavailable. Following a review of the Veteran's entire claims folder, that physician should offer an addendum opinion regarding whether the Veteran's current right ankle disability is at least as likely as not (50 percent probability or more) proximately due to, the result of, or aggravated (permanently made worse) by the Veteran's service-connected residuals of right knee fracture. A fully reasoned rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file and all pertinent Virtual VA records have been reviewed. If it is determined that an additional examination is needed to make the determination, such examination should be scheduled in accordance with applicable procedures. 3. The RO/AMC should then review the aforementioned report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC must then readjudicate the Veteran's claim of entitlement to service connection for a right ankle disability, to include as secondary to the Veteran's service-connected residuals of right knee fracture. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) which contains notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in October 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs