Citation Nr: 1321318 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 10-09 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral shin splints. 2. Entitlement to service connection for bilateral hip disability, to include as secondary to flat feet and bilateral shin splints. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from May 1988 to May 1996 and from February 2006 to September 2007. This matter comes to the Board of Veterans' Appeals (Board) from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. An April 2008 rating decision denied service connection for bilateral hip disability and a December 2008 rating decision denied service connection for bilateral shin splints. In October 2012 a Board hearing was held at the RO before the undersigned; the transcript is of record. In January 2013 the Board remanded the issues for further development, which has been completed. The Veteran's virtual VA file has been reviewed. FINDINGS OF FACT 1. There are no findings of current bilateral shin splints related to service. 2. There is no current bilateral hip disability related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral shin splints have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for bilateral hip disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 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). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Shin splints The Veteran contends that he was diagnosed with bilateral shin splints in service, and currently has bilateral shin splints. During the Veteran's first period of active service, in 1989 and 1990, he was found to have shin splints or stress fractures in his shin bone, confirmed by a bone scan. He was put on a profile and instructed not to run. In March 1991 an x-ray showed that the bilateral stress fractures were well healed. Post-service VA treatment records are silent for complaints of shin splints, or pain or swelling in the lower extremities, providing evidence against this claim. In July 2011 a VA examination was conducted of the joints to determine if the Veteran had any residuals disability associated with the treatment cited in service. Upon physical examination there was no obvious deformity. Motor function was intact and the anterior compartments were soft and nontender. X-rays findings were compatible with old stress injuries but the remainder of the examination was unremarkable. The examiner found that there was no evidence of a chronic ongoing condition associated with service, and no obvious residuals, providing more evidence against this claim. In April 2013 another VA examination was conducted. The examiner noted the Veteran's history of in service shin splints and that the only other complaints or evaluation of shin splints since service was in association with VA examinations. The x-rays were consistent with old stress reactions mid tibias and there was no evidence of current compartment syndrome or shin splints. The examiner opined that there was no evidence of a chronic ongoing condition associated with service and that the previous VA examination in 2011 was also negative for shin splints. The Veteran contends that he had shin splints in service and has continued to have them. The Veteran testified that he has been getting treatment at the VA for his shin splints since 2008 however he is mistaken. The Veteran has received ongoing treatment for various disabilities in his lower extremities including bilateral flat feet with plantar fascitis, for which he is service connected, and the left ankle, however his complaints and treatment do not include shin splints or even any reports of symptoms associated with shin splints. The Veteran is competent to report what he experiences through his five senses, such as pain. See, Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Even if the Veteran were to report shin pain, he would not be competent to diagnose himself with shin splints. The Board does not dispute that the Veteran had bilateral shin splints in service, which is why multiple examinations were undertaken in this case. However the bilateral shin splints healed in service. The Veteran does not currently have bilateral shin splints and he has not had bilateral shin splints at any time during the appeal period. The Board recognizes that the courts have held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. The definition comports with the everyday understanding of disability, which is defined as an "inability to pursue an occupation because of physical or mental impairment." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Such is not indicated in this case, based on multiple evaluations. Absent evidence of an actual diagnosis of shin splints or a disability associated with bilateral shin splints, the Veteran's claim of service connection must fail. It is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Service connection for bilateral shin splints is not warranted. If, at some point in the future, he develops a bilateral leg disability associated with the treatment for shin splints in service he is welcomed to reapply for service connection. Bilateral hip disability The Veteran contends he has a bilateral hip disability secondary to the service connected flat feet and secondary to bilateral shin splints. He also testified that he first noticed hip pain in service in 2007. Service treatment records note complaints of painful joints but there is no diagnosed hip disability in service. Since service the Veteran has reported complaints of hip pain, however there is never been a diagnosis of a bilateral hip disability. VA treatment records list the Veteran's condition as "hip pain" and note the Veteran's repeated complaints of hip pain. A medical professional has never diagnosed a specific bilateral hip disability. The Veteran testified that he had x-rays taken but he was told to take ibuprofen and rest. In April 2008 a VA joint examination was conducted. The Veteran reported left buttock pain and throbbing in his hip. He reported no direct injury or trauma to his hip or pelvis. Physical examination of the left hip found localized tenderness but there were no obvious muscle defects or spasms. X-ray of the pelvis and left hip show the pelvis is unremarkable. The hip showed some deformity of the lesser trochanter of the left femur; probably from an old injury; otherwise no evidence of recent fracture, dislocation or pathologies seen in the left hip. The examiner gave the impression of mild chronic gluteus maximus strain. Although the Veteran was diagnosed with a gluteus maximus strain, it was temporary as there is no further reference to it in any of the treatment records, providing more evidence against this claim. The Veteran is competent to report what he experiences through his five senses, such as bilateral hip pain. See, Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report hip pain, and the Board finds his complaints of pain to be credible, however the Veteran's complaints of pain alone do not establish a "disability" as the Veteran is not competent to diagnose himself with a chronic bilateral hip disability related to service. The veteran must prove the existence of current disability and that a disability has resulted from a disease or injury that occurred in the line of duty. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability. Absent evidence of an actual diagnosed bilateral hip disability, the Veteran's claims of service connection must fail. It is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Notice and Assistance 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Letters dated December 2007 and October 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in April 2008, July 2011 and April 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record, evaluated the Veteran and provided an opinion as to whether the Veteran had any current disabilities. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Veteran contends that he has a bilateral hip disability secondary to his bilateral flat feet, which were recently service connected. A general VA examination was conducted in April 2008 which included an evaluation of the hip. An additional examination to address the Veteran's claim of secondary service connection is not necessary at this time as there is no evidence of a current bilateral hip disability. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). ORDER Service connection for bilateral shin splints is denied. Service connection for bilateral hip disability, to include as secondary to flat feet and bilateral shin splints is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs