Citation Nr: 1323046 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-20 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from June 1986 to March 1988, and from October 1992 to April 1995. However, in a February 2007 administrative decision, the Regional Office (RO) determined that he was not entitled to benefits arising out of his second period of service, based on his other than honorable discharge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the St. Petersburg, Florida, RO of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. In filing his May 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO; however, he withdrew this request in August 2011 correspondence. The Board remanded the above issues in May 2012 and January 2013 for additional development. The claims again are before the Board. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure a total review of the evidence. As was noted in the May 2012 and January 2013 Board decisions, the Veteran raised the issues of reopening a previously denied claim of service connection for a right knee disability, and entitlement to increased evaluations for a left knee disability and for left lower extremity peripheral neuropathy in May 2008 and August 2011 statements. These matters have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), and therefore the Board does not have jurisdiction over them. They are again referred to the AOJ for appropriate action. Please 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). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left hip disability that is etiologically related to a disease, injury, or event in service, to include any service-connected disability. CONCLUSION OF LAW A left hip disability was not incurred in service, may not be presumed to have been so incurred, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's left hip claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2008 and January 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised as to how he could substantiate his claim for service connection, to include on a secondary basis. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The June 2008 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. As will be discussed in greater detail below, the Veteran's TDIU claim is being remanded in an attempt to obtain his Vocational Rehabilitation file. The Board concludes that any such records can be of no benefit to the Veteran's left hip claim as the records were created multiple years before the onset of any reported left hip problems. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With regards to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided VA examinations for his left hip disability in December 2008 and June 2012. The Board previously found these examinations inadequate and remanded the claim for an additional VA examination, which was afforded the Veteran in April 2013. The April 2013 examiner considered the Veteran's claims, but concluded that the Veteran's left hip disability was unrelated to his military service and service-connected disabilities. Instead, the examiner concluded that the Veteran's left hip arthritis was caused by age and genetics and that it was worsened by a 2007 motor vehicle accident. As will be discussed in greater detail below, the examiner's opinions were based on review of the claims file and available medical records (including x-rays of the left hip), the Veteran's reported history, his current symptoms, and a physical examination. The Board, therefore, finds the April 2013 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2012). In this case, the Veteran was not diagnosed with left hip arthritis in service or within one year of separation from service. As such, entitlement to service connection on a presumptive basis is not warranted. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The Veteran claims that his left hip disability was caused by his military service or was otherwise caused or aggravated beyond its natural progression by his service-connected disabilities, in particular his service-connected low back and/or left knee disabilities. As noted above, the RO has determined that the Veteran's second period of service may not serve as a basis for granting entitlement to service connection because he was dismissed with a less than honorable discharge. Nevertheless, the Board notes that the records from the Veteran's second period of service do not include any diagnoses of left hip arthritis, including at the time of his January 1994 separation examination. As to the Veteran's service treatment records from his first period of service, these records include multiple dental treatment records in which he denied a history of arthritis. The Veteran did incur a gunshot wound to the left knee in April 1987, with subsequent left lower extremity problems, but without noted involvement of the left hip. The records do not otherwise indicate treatment for or diagnosis of a left hip disability, to include arthritis. After service, the Veteran received ongoing treatment for back and left lower extremity problems, including the left knee. Treatment did not initially include the left hip. In September 2006, for example, the Veteran sought treatment for back and knee problems, but did not discuss hip problems. On examination, there were no noted problems with respect to the left hip. In May 2008, however, the Veteran reported that he had been having increased left groin and left hip pain radiating from his back since a motor vehicle accident in June 2007. On examination, the left hip was not tender to palpation, but palpation did increase pain in the left groin with radiation to the left low back. The assessment was chronic low back pain with sciatica to left hip with a history of neuropathy. That same day the Veteran brought his claim for entitlement to service connection for a left hip disability secondary to his service-connected back and left knee disabilities. The Veteran was afforded a VA examination in December 2008. The examiner noted review of the claims file and medical records. The Veteran reported onset of left hip pain in 2006, with a subsequent motor vehicle accident in June 2007. He also had left groin pain every 20 seconds that was severe several times per month. The left hip pain primarily began after the motor vehicle accident and the Veteran was unsure whether he had been experiencing left hip pain prior to the accident because his low back pain had been so severe. Contemporaneous x-rays showed early osteoarthritis of both hips. The examiner diagnosed early bilateral hip osteoarthritis. As to etiology, the examiner opined that it was less likely as not that the Veteran's left hip pain and osteoarthritis were caused by or the result of his lumbar spine disability. The rationale was that the site of the pain was inconsistent with left hip origin pain, but was coming from the inguinal or groin area. The claims file also includes multiple statements from friends and neighbors regarding the Veteran's overall health and difficulty with walking and range of motion due to pain that have limited his ability to work in his garden and perform other activities. These letters, however, do not specifically discuss left hip problems or the etiology of any such problems. The Veteran was afforded another VA examination in June 2012. The examiner noted the past diagnosis of degenerative joint disease of the bilateral hips that was about 5 years old. The Veteran reported pain in both hips that was worse in the left hip for the previous 5 years. After examination, the examiner concluded that it was less likely as not that the Veteran's left hip disability was caused by or the result of military service or service-connected left knee or lumbar spine disabilities or aggravated by those conditions. The rationale for the opinion was that the Veteran developed bilateral hip arthritis which meant that the arthritis was most likely genetic or due to age. Moreover, the Veteran's reported symptoms were consistent with the natural aging process and not due to aggravation by his left knee or low back disabilities. As noted above and as discussed in the May 2012 and January 2013 remands, the Board has found these examination reports to be inadequate. As such, the Veteran was afforded another VA examination in April 2013. The examiner noted review of the claims file. The examiner also discussed the past diagnoses of bilateral hip arthritis. The Veteran reported that in 2007 or 2008 he stepped in a hole and fell down on his left hip. He also discussed his June 2007 motor vehicle accident. The Veteran noted that the pain in his bilateral hips was getting progressively worse with aging. He denied any hip problems in service. The examiner noted the Veteran's May 2008 report of increased left groin and left hip pain radiating to the back since his June 2007 motor vehicle accident. X-rays showed arthritis to the bilateral hips. The examiner concluded that it was less likely as not that the Veteran's left hip arthritis was caused by or a result of military service or a service-connected disability, or aggravated by service-connected disability, to include low back, left knee, and left lower extremity neuropathy disabilities. The rationale was that the Veteran had bilateral hip arthritis that was caused by genetics and aging that worsened due to the natural progression of the disease following the June 2007 motor vehicle accident. The examiner based this assertion on the May 2008 VA treatment record discussed above. Moreover, the physical examination and x-rays of the Veteran's bilateral hips demonstrated that the left hip arthritis was constitutional, genetic, and age-related. In addition, there was no evidence of the disability in the service treatment records or immediately after active duty. Thus, the Veteran has a current diagnosis of left hip arthritis. The Veteran concedes that he did not have left hip problems in service or for many years after service. No medical professional has associated the Veteran's current left hip disability with his military service. For these reasons, entitlement to service connection based on a disability incurred in or otherwise directly related to his time in service would not be warranted. As such, the critical question is whether the Veteran's current left hip arthritis was caused or aggravated by his service-connected low back, left knee, and/or left lower extremity neuropathy disabilities. Based on the evidence of record, the Board concludes it was not. In reaching that determination, the Board finds the April 2013 VA examination report of significant probative value. The examiner's opinions were based on an interview of the Veteran, his reported medical history, physical examination, and multiple x-rays. Further, a complete and thorough rationale was provided for the opinions rendered. Specifically, the examiner concluded that based on the x-rays, physical examinations, and the Veteran's representations his left hip arthritis was consistent with genetics or aging and not consistent with causation or aggravation by his service-connected low back, left knee, or left lower extremity neuropathy disabilities. The bilateral nature of the hip arthritis, as evidenced by the x-rays and reported history, supported the conclusions reached by the examiner. The Board's concerns about the conclusions reached in the previous VA examination reports of record (the December 2008 report was rendered before service connection was granted for the left knee and the June 2012 report appeared to be based solely on one set of x-rays from 2008) have been adequately addressed in the current report. As such, the Board concludes that the examiner's overall conclusions are fully explained and consistent with the evidence of record. As to the lay statements submitted by the Veteran's friends and neighbors, these statements do not specifically address his left hip disability or the etiology thereof. As such, these statements cannot provide a basis for granting entitlement to service connection. The Board also has considered the Veteran's assertions that his left hip disability was caused or aggravated by his service-connected low back, left knee, or left lower extremity neuropathy disabilities. The Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as pain, stiffness, and other symptoms in the left hip, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise and the complexity of linking the etiology of a left hip disability to his service-connected low back, left knee, or left lower extremity neuropathy disabilities, however, the Board concludes that in this case his statements regarding any such link are not competent evidence. Moreover, even if they were competent and were found to be credible and therefore entitled to probative weight, they would be significantly outweighed by the conclusions of the April 2013 VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The reason for this is that the VA examiner has medical training, reviewed the history, conducted an examination and provided a medical opinion supported by a rationale. In conclusion, the April 2013 VA examiner clearly reviewed the Veteran's medical history (including x-rays), interviewed the Veteran, conducted multiple physical examinations (as the same examiner conducted the June 2012 VA examination) and offered a detailed rationale for the opinion provided. The Board finds this the most probative evidence of record and of significantly greater weight than the Veteran's lay representations. There is no evidence of record that any medical professional has opined a link between the Veteran's left hip disability and his military service or any service-connected disability. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for a left hip disability is denied. REMAND The Veteran also is seeking entitlement to TDIU. Despite the extensive procedural development, the Board finds that the claim must again be remanded. In this case, there is some dispute in the record as to whether the Veteran received Vocational Rehabilitation services from VA. In July 2004, the Veteran stated that he applied for Vocational Rehabilitation services, but was denied because he would not go through a drug and alcohol program. By contrast, in June 2001 the Veteran reported to a VA social worker that he had been working with Vocational Rehabilitation, but that the services were suspended for six months after the counselor discovered the Veteran's recent drug arrest. A complete Vocational Rehabilitation file is not associated with the claims file and, as any interviews and assessments may contain information relevant to evaluation of the Veteran's TDIU claim, the AMC should attempt to obtain these records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate with the claims file a copy of the Veteran's VA Vocational Rehabilitation file. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Based on the information obtained, take all appropriate development deemed necessary, to include examination(s) and referral to VA's Director, Compensation Service, for extraschedular consideration, as appropriate. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. [NOTE: The TDIU issue is inextricably intertwined with the issues that were referred to the agency of original jurisdiction in the Introduction.] 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs