Citation Nr: 1320674 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 04-29 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a low back disorder, to include as secondary to a bilateral hip disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2007, the Veteran testified during a hearing held before a Veterans Law Judge. A transcript of the proceeding is of record. The Board remanded the case in September 2007 in order to obtain evidence identified during the hearing, including relevant Social Security Administration disability determination records and VA treatment records. The case was again remanded in March 2009, at which time further efforts were requested with respect to obtaining relevant VA treatment records dating back to 1976, and additional service treatment records from Fort Ord, California, and/or Fort Leonard Wood, Missouri, during the period from July 1975 to November 1976. In January 2012, the Board advised the Veteran that the Veterans Law Judge who conducted the June 2007 hearing was no longer employed at the Board. He was offered an opportunity for an additional hearing. In May 2012, a hearing was held before the undersigned Veterans Law Judge. See 38 U.S.C.A. § 7107(c) (West 2002). In October 2012, the Board remanded the matters to obtain VA outpatient treatment records identified during the hearing. In addition, the Board sought a VA medical opinion addressing the relationship between a current bilateral hip and low back disorder and the Veteran's active service. Following completion of the requested development, in April 2013, the RO issued a supplemental statement of the case and continued the denial of the claims. As such, they are once again before the Board for review. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. A bilateral hip disorder was not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active service. 2. A low back disorder was not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active service, including a service-connected disorder. CONCLUSIONS OF LAW 1. A bilateral hip disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2012). 2. A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that current bilateral hip and low back disorders began during service. During the course of the appeal he has provided several statements of record in which he describes the etiology of the current hip or back disorders. For instance, during the June 2007 hearing, he described injuries to the legs during basic training that required x-rays and hospitalization. (See June 2007 Transcript at 3.) He also described hurting his back while working in the mail room during service. (T. at 4.) He reported that this injury also required hospitalization and x-ray examination. (T. at 5.) He testified that was treated by the Brooklyn VA medical center within one year of discharge from the military and was informed that he had degenerative hip disease. (T. at 6.) He stated that he received constant treatment from the VA for the past 20 years and underwent a right hip replacement in 2004 and a left hip replacement in 2005. During the hearing before the undersigned in May 2012, he reiterated his contention that he fell a couple times during basic training and was diagnosed with degenerative hip disease by VA in 1979. (T. at 2) He also described injuring his low back after lifting boxes in the mail room while in service and stated that he was hospitalized twice and put on bed rest. (T. at 6) The Board has considered the Veteran's contentions but finds that the weight of the evidence is against the claims for service connection for a bilateral hip disorder or for a low back disorder. 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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word "chronic" will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, including arthritis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Finally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). First, the Board has considered whether service connection is warranted on the basis of any legal presumption. Here, the Veteran has been diagnosed with two diseases of the hips, osteoarthritis of the bilateral hips and avascular necrosis of the left hip. He has also been diagnosed with a congenital defect described as os acetabuli. Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) are potentially applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). However, while the Veteran is currently diagnosed with osteoarthritis of the bilateral hips, such was not noted during service. Rather, the service treatment records contain no references to the bilateral hips and his lower extremities were evaluated as normal during his service separation. The Board has considered his statements to the effect that he was hospitalized during service; however, the service department has found no record of such and there is no indication that his service treatment records are incomplete. As such, the Board does not find the Veteran's statements credible and further finds that his service treatment records constitutes the most probative evidence as to the incurrence of any hip or back disability. Thus, the Board finds that he did not have a chronic disease during service. In addition, due to the absence of findings concerning the hips, the diagnosis of chronicity is not in question. Thus, the Board need not look to evidence of continuity of symptomatology since service discharge. The remaining hip diagnoses, avascular necrosis and os acetabuli, are not listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. The Veteran's low back disorder is diagnosed as lumbar strain, degenerative disc disease, and lumbar spondylosis including osteoarthritis and central canal stenosis. As noted, arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. However, for similar reasons as discussed above, the Board finds that he did not have a chronic disease during service, nor may the issue of chronicity be legitimately questioned. Again, despite his allegations to the contrary, the service treatment records do not document treatment for a low back condition nor do they include x-ray evidence of arthritis. Next, the Board has considered whether the presumptive provisions of 38 C.F.R. § 3.307 and § 3.309 are for application. Here, there is no evidence showing x-ray evidence of arthritis of the hips or lumbar spine within the first post-service year. While the Veteran alleges treatment at the VA medical facility in Brooklyn, New York following service, the VA medical facility has made several searches for any such records and was unable to confirm treatment following discharge from service. Next, the Board will address the finding of a current genetic defect diagnosed as os acetabuli. VA's General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. A congenital disease is capable of improving or deteriorating whereas a congenital defect is "more or less statutory in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. Indeed, a congenital disease can be incurred or aggravated in service in that it first manifests during service or preexisted service but progresses at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990). A congenital defect, on the other hand, is not a disability for which service connection can be granted. 38 C.F.R. §§ 3.303(c); 4.9. However, if the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. The presumption of soundness applies to a congenital disease but not to a congenital defect. Quirin v. Shinseki, 22 Vet. App. 390 (2009). Here, the Board finds that os acetabuli is a genetic defect that was not subject of superimposed disease or injury during service. The most probative evidence concerning os acetabuli comes from the December 2012 VA examination report. Therein, the VA examiner reported that os acetabuli was a congenital defect of "minimal clinical significance" and was less likely than not aggravated during active service. Finally, because none of the presumptive provisions of law are for application, the Board will address direct service; that is evidence that directly links a current bilateral hip or back disorder to active service. Here, the weight of the probative evidence does not show the incurrence of either a bilateral hip or low back disorder during service. Even though the Veteran alleges treatment for a hip or low back disorder following discharge, the first competent medical evidence showing such is not until 1994, many year following discharge from service. VA treatment in 1994 revealed evidence of degenerative changes in both hips and low back pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that it is not error to weigh the absence of contemporaneous medical evidence against the lay evidence of record); Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000) (noting that the evidence of prolonged periods without medical complaint can be considered). Evidence concerning the etiology of the disorders, however, consists primarily of the recorded histories. Those statements are inconsistent and do not support a determination that the current bilateral hip or low back disorders are etiologically related to service. The Board acknowledges that a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Here, however, the Veteran's inconsistent reporting of his medical history weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility can be affected 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) For instance, in an August 1994 VA treatment record, the Veteran reported a history of low back pain for only the prior two days. In a February 1995 VA record, he reported a history of bilateral hip pain for seven years. In an October 2002 VA treatment record, he reported a history of bilateral hip pain starting in 1997. A November 2002 VA CT scan report notes a six year history of low back pain. In May 2003, he reported a ten year history of hip pain and the following month he reported a twenty year history of hip pain. An August 2003 private treatment record notes a history of bilateral degenerative hip disease since 1980. It also notes no history of direct trauma. In more recent VA treatment records, generated since the initiation of the current claims, he reports a history dating to service or immediately following service discharge. Because the Veteran's statements regarding the etiology of the current disorders are internally inconsistent and not credible, the Board looks to the medical opinion evidence addressing the etiology of the current hip and low back disorders. Here, the December 2012 VA examiner provided an opinion after reviewing the Veteran's claims file stating that the bilateral hip and low back disorders were less likely than not related to his active service. Regarding the hip disorder, the examiner reasoned that the service treatment records did not show any hip disorder. Moreover, the examiner found that the Veteran's history of cocaine and drug abuse was associated with osteoarthritis and avascular necrosis of the hips. Regarding the low back, the examiner reasoned that the service treatment records did not show treatment for a low back sprain, bed rest, or hospital treatment. Rather, the examiner found that the Veteran had a progression of degenerative disc disease that could be consistent with age-related changes or from stressors caused by the bilateral hip disorders. "[M]ost of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the December 2012 opinion contains an analysis that is supported by the record and clearly articulates the rationale for concluding that the Veteran's bilateral hip or lumbar spine disorders are not related to service. Therefore, it is entitled to great probative weight. Finally, while there is evidence that the bilateral hip disorder causes or aggravates the lumbar spine disorder; the Veteran is not service-connected for the bilateral hip disorder. Hence, there is no basis to grant the claim on a secondary basis. 38 C.F.R. § 3.310. Considering all of the evidence of record, including the lay statements of record, the Board finds that the preponderance of the evidence is against the claims, and, accordingly, the appeal is denied. In arriving at the decision to deny the claims, the Board has considered the applicability of the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Finally, 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 of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was provided with notice of what types of information and evidence was needed to substantiate his claims in July 2003 (pre-initial adjudication) with follow-ups in September 2007, April 2009, and November 2012 and was also provided with notice of the types of evidence necessary to establish a rating and effective date for the disorders on appeal in a March 2006 VCAA letter. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, Social Security Administration disability determination records, and current VA outpatient treatment records. It is significant to note that the Veteran identified relevant VA outpatient treatment records at a VA facility in Brooklyn, New York for the period immediately following discharge from active duty. Numerous efforts were made to obtain any records. Those efforts are detailed in a July 2011 Memorandum of Unavailability. Significantly, there is correspondence from the VA facility in Brooklyn indicating that they have no record that he received treatment prior to 1994 and no electronic or hard copy records documenting any medical treatment received. In addition, he identified hospital treatment at Fort Ord, California, and/or Fort Leonard Wood, Missouri. No additional records were received. However, the service department has verified that all relevant records have been submitted to VA and there is no indication that records are outstanding. The Board also finds that there has been substantial compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In addition to undertaking efforts to obtain any VA outpatient treatment records following the Veteran's discharge from active duty; the RO was instructed to schedule a VA examination to obtain a medical opinion addressing the etiology of current hip and low back disorders. An examination was conducted in December 2012 and the examination is considered adequate for decisional purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Nothing further was required. In addition, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. During the hearing the undersigned VLJ identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claims decided herein. ORDER Service connection for a bilateral hip disorder is denied. Service connection for a low back disorder is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs