Citation Nr: 1320305	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  09-02 459	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for post-operative residuals of a left hip hemiarthroplasty, including as secondary to service-connected residuals of a shell fragment wound of the left foot, a scar on the left foot with amputation of the middle toe, osteomyelitis of the left foot, and/or left ankle limitation of motion.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from December 1944 to March 1946 and from August 1950 to July 1953.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

When filing his January 2009 Substantive Appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing), as well as a hearing before a local Decision Review Officer (DRO).  However, in a subsequent March 2009 statement, he asked that the scheduled DRO hearing be cancelled, as well as his request for a Travel Board hearing.  Thus, he has withdrawn his hearing requests.  38 C.F.R. § 20.704(e) (2012).

In May 2012, the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  Specifically, the Board requested a VA compensation examination for a medical opinion addressing whether the Veteran's service-connected disabilities of his left lower extremity either have caused or are aggravating his left hip disability.  The examination occurred later that month; however, after considering the report of it, the Board determined that still further comment was needed.  So, to obtain this additional medical comment, the Board requested an expert medical opinion in January 2013 from the Veterans Health Administration (VHA).  The Board received this additional opinion in March 2013, and a copy was sent to the Veteran on April 3, 2013.  He was informed that he had 60 days from the date of that letter to submit further evidence or argument, including in response to the medical expert opinion, and that if nothing was received in that time period, the Board would proceed with the readjudication of his appeal.  His representative subsequently filed additional argument, but no evidence, in response to the opinion.  

Please also 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).
FINDING OF FACT

It is just as likely as not the Veteran has post-operative residuals of his left hip hemiarthroplasty that were caused or are being permanently exacerbated by the service-connected residuals of the shell fragment wound of his left foot, the scar on his left foot with amputation of his middle toe, the osteomyelitis of his left foot, and/or the limitation of motion of his left ankle.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, his left hip disability is proximately due to, the result of, or aggravated by the service-connected disabilities affecting his left foot and ankle.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See Gonzales, 218 F.3d at 1380-81.  The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  The law requires only that the Board address its reasons for rejecting evidence favorable to him.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).


The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  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.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied.  Id.

Veterans Claim Assistance Act (VCAA)

The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  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, 3.326(a) (2012).  Since, however, the Veteran's claim is being granted in full, there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist obligations.  This is because even if, for the sake of argument, there has not been, this would be inconsequential and, therefore, ultimately amount to no more than nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102 (2012).

Relevant Statutes, Regulations and Cases

Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  


Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Certain diseases are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  If chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).


So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if they are available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2012).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though not always, required to associate the claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

The Veteran alleges that his left hip disability is the result of the service-connected disabilities affecting his left ankle and foot, so his claim is predicated entirely on the notion of secondary service connection, rather than on the premise that his left hip disability was directly or even presumptively incurred during his service.

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when 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); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Turning now to the relevant facts and circumstances of this particular case.

Service connection already has been established for residuals of a shell fragment wound (SFW) to the Veteran's left foot effectively since August 1954; for limitation of motion of his left ankle and for a scar on his left foot with amputation of a toe, both effective since January 1961; and for osteomyelitis of his left foot effectively since October 1975.  He alleges these conditions, especially in the aggregate, caused him to fall and fracture his left hip, ultimately necessitating hemiarthroplasty.

During a February 2006 VA feet examination, he complained of foot and ankle pain and decreased tolerance to walking, especially when barefoot.  He also reported decreased endurance to standing and walking.  During a VA joints (ankle) examination on the same day, he complained of having decreased balance.

He fell and fractured his left hip in April 2007.  He subsequently had surgery for a left hip hemiarthroplasty in August 2007.

During an April 2008 VA examination, X-rays showed osteopenia, and he was diagnosed with status post left hip hemiarthroplasty.  The examiner did not provide any opinion as to whether the service-connected left lower extremity disabilities had caused or aggravated the left hip disability.  He indicated there was no medical literature available that he could use to resolve this issue, and that opining on the issue was impossible without resorting to mere speculation.  That opinion, as previously discussed in the Board's May 2012 remand, was inadequate for adjudicatory purposes because it was inconclusive as to the origin of the disorder and does not discuss the Veteran's contentions or what information would be needed in order to provide an opinion.  Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  See also Jones v. Shinseki, 23 Vet. App. 382 (medical opinion asserting the inability to opine on etiology without resorting to speculation is inadequate, unless it is clear from the record the assessment was reached after all due diligence in seeking relevant medical information that may have bearing on the opinion).

The Board resultantly requested additional medical comment on this determinative issue of etiology.

The May 2012 VA examiner designated to provide this additional comment diagnosed hip replacement due to left femoral neck fracture and leg discrepancy (left leg shorter than the right).  He opined against a relationship between the Veteran's current left hip disability and the service-connected disabilities affecting his left ankle and foot, although that examiner accepted the left hip replacement was a consequence of the Veteran breaking his femur a number of years earlier in the fall mentioned.  This opinion still nonetheless was inadequate for adjudicatory purposes, however, as even this additional VA examiner had not addressed the essential premise of the claim, that is, that the Veteran had fallen and broken his femur, necessitating the hemiarthroplasty, on account of the service-connected disabilities affecting his left ankle and foot.  See Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim, but neither can they be used to deny a claim).

The June 2012 VA examiner opined that the Veteran's left hip disability is not due to his service-connected lower extremity disabilities; rather, this examiner attributed the Veteran's fall to his dementia or possible syncope brought on by his coronary artery disease (CAD).  This examiner thought it was more likely than not that the Veteran was disoriented or experiencing syncope when he fell.  This opinion though, like the others before it, was inadequate for adjudicatory purposes because it, too, did not address the questions posed by the claim.  To wit, the examiner did not provide any explanatory rationale for cursorily attributing the Veteran's fall to other causes, despite evidence showing he used assistive devices to walk, and that he had complained of painful feet, trouble walking, and decreased balance a little over a year before falling.  Additionally, the examiner did not point out any instances supporting his theory that the Veteran possibly had syncope when he fell.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

These noted deficiencies, then, necessitated still additional comment, and this is the reason the Board obtained an additional opinion from a VHA medical expert.

The March 2013 VHA opinion determined it was as likely as not that the Veteran's left hip disability was caused by his service-connected left lower extremity disabilities (referring to those affecting his left ankle and foot).  Specifically, this additional commenting VA physician believed the long-standing foot and ankle disabilities had resulted in an altered gait, that is, they had caused the Veteran to limp, which in turn likely predisposed him to falls.  This commenting VA physician also observed the Veteran's long-standing and well-documented use of assistive devices for these disabilities, such as crutches, which in turn likely resulted in decreased muscle mass (atrophy) over the left hip, thereby reducing the protective cushioning over the hip and predisposing him to fracture.  This commenting VA physician did not provide any additional opinion concerning whether the service-connected disabilities alternatively had aggravated the left hip disability, but apparently only because he saw no evidence that the Veteran's left hip was disabled prior to the fall in question.  Obviously then, without any pre-existing disability there necessarily could not have been any aggravation since there was no pre-existing disability to make worse, much less chronically or permanently.

So, ultimately, the Board finds this VHA medical expert opinion to be the only probative opinion addressing the etiology of the Veteran's left hip disability and particularly in terms of its alleged relationship or correlation with the disabilities already determined to be service connected that are affecting his left ankle and foot.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position).  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical authority over another when decision makers give an adequate statement of reasons and bases).  This VHA medical expert opinion was rendered after a comprehensive review of the file, but even more importantly contains an explanation of the rationale and addresses the Veteran's specific contentions.

Accordingly, after carefully reviewing all of the evidence in the file, the Board finds no other evidence that probatively outweighs the VHA medical expert's opinion supporting this claim.  So, at the very least, the Veteran would be entitled to the granting of this claim with resolution of all reasonable doubt in his favor.  38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).



ORDER

The claim of entitlement to service connection for postoperative residuals of a left hip hemiarthroplasty - as secondary to the already service-connected disabilities affecting the left ankle and foot - is granted.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs