Citation Nr: 1320984	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  06-14 765	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for left hip disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active military duty from August 1974 to August 1976; he served in the Army Reserves after service until August 1995.  

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO).  The case was remanded to the RO in January 2009 and June 2010 for additional development.  In September 2012, the Board remanded the issue on appeal to the RO to provide the Veteran with notice of how to establish entitlement to service connection for left hip disability and to obtain a VA hip examination with nexus opinion.  A letter explaining how to establish entitlement to service connection was sent to the Veteran in October 2012 and a VA evaluation with nexus opinion was obtained in December 2012 and added to the record.  

As the requested actions have been complied with, there has been substantial compliance with the September 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders).

The Veteran and his wife testified at a videoconference hearing with the undersigned Veterans Law Judge (VLJ) in August 2012, and a copy of the transcript is of record.


FINDING OF FACT

The competent evidence of record does not demonstrate that the Veteran currently has a left hip disability that was present in service or is otherwise related to active military service.


CONCLUSION OF LAW

The criteria for service connection for a left hip disability manifested by femoral acetabular impingement syndrome (FAIS) are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. 

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Notice to the Veteran was not sent in this case until later in the claims process.  However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121.  A letter was sent to the Veteran in October 2012 that informed him of the requirements needed to establish entitlement to service connection.  The Veteran was also informed in this letter about disability ratings and effective dates if his service connection claim was to be granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
In accordance with the requirements of VCAA, the October 2012 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility.  Additional private evidence was subsequently added to the claims files after the letter.  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA evaluation with nexus opinion was obtained in December 2012.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the December 2012 VA examination report obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files.  The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion on file.  There is adequate medical evidence of record to make a determination on the service connection issue decided in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met.  38 C.F.R. 
§ 3.159(c)(4).

The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his August 2012 videoconference hearing.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  The Veteran was assisted at the hearing by his accredited representative from Veterans of Foreign Wars of the United States.  The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his complaints during service.  They also asked questions to draw out the current state of the Veteran's disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 
§ 3.103(c)(2).


Analysis of the Claim

The Veteran seeks service connection for a left hip disability. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

In the case of osteoarthritis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-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 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  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.  

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.  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) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally 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 to be competent with regard 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) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical 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).

The Veteran's service treatment records reveal that a medical evaluation in August 1974 did not show any lower extremity disorder.  The Veteran complained on his July 1976 separation medical history report of cramps in his legs due to exertion; his lower extremities were reported to be normal on medical examination in July 1976.  He complained on a November 1980 medical history report of occasional cramps in his legs after physical training; his lower extremities were noted to be normal on medical examination in November 1980.  Medical history and examination reports dated in July 1984, July 1988, and April 1992 do not contain any pertinent complaints or adverse findings.  The Veteran complained in April 1993 of left hip pain.  The examiner noted that his hip was essentially nontender and X-rays were probably unremarkable, with a question of irregular calcification along the inferior edge of the left acetabulum.  The Veteran complained on a November 1993 medical history report of leg cramps; his lower extremities were normal on examination in November 1993.

Private X-rays of the left hip in April 1993 from Suburban Radiology Consultants were normal. 

The Veteran complained on VA Report of Medical Examination for Disability Evaluation in March 1996 of soreness in his arms, shoulders, chest, and neck, as well as occasional numbness in the arms, but made no complaint regarding his left hip or leg.

The Veteran complained in private treatment records dated in May and June 2001 of left hip pain since 1987.  

VA treatment reports dated from July 2002 to November 2011 reveal complaints of left hip pain.

According to a June 2003 statement from M. R. Zuckman, D.O., the Veteran was seen in the office in April 1993, which at the time was associated with Eagan Medical Associates, for complaints of left hip pain that started after doing some extensive calisthenics/exercises as part of military reserve training.  The Veteran again mentioned some hip pain at physical examinations in January 2001 and January 2003.  Dr. Zuckman noted in July 2005 that X-rays of the left hip in February 2005 showed osteoarthritis.

According to July 2005 and July 2012 statements from Dr. Zuckman, it was reasonable to assume that the Veteran's current left hip pain was caused by or, at least, exacerbated by his left hip problems that began in 1993.  

The Veteran testified at his August 2012 videoconference hearing that his left hip started bothering him in 1993 after strenuous exercise as part of inactive duty for training for the Reserves, but he did not seek a Line of Duty Determination at the time because he thought the pain would go away; and that his hip pain was not mentioned on evaluation in November 1993 because it was an intermittent problem and was probably not bothering him at the time.  His wife testified that he began complaining of left hip pain during the weekend of April 17-19, 1993.

The April 1993 injury was during a period of inactive duty for training (INACDUTRA).  The applicable laws and regulations permit service connection only for disability resulting from injury (and not disease or any other type of disability other than residuals of an injury) incurred or aggravated while performing INACDUTRA.  See 38 U.S.C.A. § 101(22), (24) ; 38 C.F.R. § 3.6 (2012).

A VA examination and nexus opinion was obtained in December 2012, in response to the September 2012 Board remand.  It was noted that the claims files were reviewed.  The examiner diagnosed FAIS and concluded, based on the Veteran's history and the examination findings, that it was less likely than not that the Veteran's current condition was incurred in or caused by the claimed in-service injury.  The rationale for this opinion was that although there was evidence of a left hip sprain in 1993, subsequent follow-up examination indicated a resolution of the condition, which was further affirmed by the absence of documentation of a chronic left hip condition between 1993 and 2005.  The examiner concluded that recent findings of FAIS suggested that this condition developed in the recent past because FAIS tends to be significantly painful and it would have been intolerable for the condition to have been ongoing since 1993 and because the radiologically observed FAIS was not present on previous X-rays of the left hip.

According to a February 2013 statement from Dr. Zuckman, the Veteran was seen for follow up related to pain/osteoarthritis of his left hip.  

There is evidence on file both for and against the Veteran's claim for service connection for left hip disability.  The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).  
The Board finds the December 2012 VA nexus opinion against the claim to be of more probative value, when considered along with the other evidence of record, than the July 2005 and July 2012 statements from Dr. Zuckman in favor of the claim.  

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file.  Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998).  See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998).

In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see  D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history).

Although Dr. Zuckman has concluded that the Veteran's current left hip osteoarthritis is causally related to his left hip problem that began in the Reserves in 1993, this opinion is not based on a review of the claims files; and Dr. Zuckman does not provide a clear medical rationale for this opinion, to include an explanation for the lack of any follow-up treatment for the left hip between April 1993 and February 2005.  On the other hand, the December 2012 VA opinion is based on a review of the claims files and examination of the Veteran.  Moreover, the VA opinion is supported by a clear rationale with reference to the medical evidence of record, to include the absence of relevant medical findings between 1993 and 2005.  

The hearing testimony and lay statements on file have been taken into consideration in this case.  Although the Veteran is competent to report his subjective hip symptoms, such as pain, the Board finds that the Veteran, who does not have any medical training, is not competent to opine as to whether he currently has a hip disability such as FAIS due to service because the diagnosis of FAIS and the determination of etiology require medical expertise to determine.  His assertions that his current disability is the same as he has been suffering from since service are not sufficient both because he is not competent to link his symptoms to a specific disability, but also because there is evidence that he has not had continual symptoms, for example during his 1996 VA examination he made no mention of any problem involving his left him or leg.  

Because all of the requirements for service connection are not shown, the Veteran does not have a left hip disability due to service.  The Board also finds that the preponderance of the evidence is against the Veteran's service connection claim, and the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. 
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

ORDER

Entitlement to service connection for a left hip disability manifested by FAIS is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs