Citation Nr: 1323310 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 07-34 621 ) 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 a left hip disability, to include as secondary to service-connected chronic low back pain syndrome, a left knee disability, and/or sciatica and left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service between April 1997 and May 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In May 2012, the Board requested an opinion from a medical specialist at the Veterans Health Administration (VHA). The requested opinion was received in August 2012. That same month, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. However, in October 2012, the Board again remanded this claim for additional development. All requested actions have been completed and the claim is once again before the Board. Additionally, in a decision issued in February 2011, the Board determined that service connection was in effect for a left knee disability, and instructed the RO to assign a rating for such disability. In the October 2012 remand, the Board noted an initial rating had yet to be assigned for the left knee disability. To date, this has still not been accomplished and the RO is once again instructed to assign an initial rating for the Veteran's left knee disability. FINDING OF FACT The preponderance of the evidence shows that the Veteran does not have a left hip disability, other than his already service-connected left lower extremity radiculopathy, that is related to his military service, or caused or aggravated by his service-connected chronic low back pain syndrome, a left knee disability, and/or sciatica and left lower extremity radiculopathy. CONCLUSION OF LAW A left hip disability was not incurred in or aggravated by the Veteran's military service and is not proximately due to a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, an April 2007 letter provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in February 2013. VA has also made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, and VA treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was provided a VA examination with respect to this claim in April 2007, with addendums dated in February and August 2011. Thereafter, the Board obtained a VHA opinion from a medical specialist in July 2012. However, the Board found that further clarification was required following the July 2012 VHA specialist's opinion, and the claim was remanded again. A VA examination was obtained in January 2013. The Board finds that the January 2013 examination and opinion is adequate, as it considered all of the pertinent evidence of record, to include VA treatment records, statements of the Veteran, prior VA examinations, and the VHA opinion. Further, the examiner provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. In January 2011 and October 2012, the Board remanded the case for additional development. As discussed in the preceding paragraphs, VA treatment records have been obtained and the Veteran was afforded a VA examination in accordance with the remand directives. Additionally, the Veteran was provided another opportunity to identify all treatment providers in October 2012. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis The Veteran asserts that he suffers from a left hip disorder that is related to his active service. In the alternative, he claims these disorders are due to his service-connected chronic low back pain syndrome, a left knee disability, and/or sciatica and left lower extremity radiculopathy. When determining service connection, all potential theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes service connection for a back condition with associated left leg/ knee condition has been in effect since May 1999. Additionally, the RO granted "service connection" for sciatica and left lower extremity radiculopathy and assigned a separate 10 percent rating, effective July 28, 2004. The Veteran's service treatment records show that he began complaining of severe back pain early during his active service. He also complained of left hip pain on multiple occasions, which at times appeared to be unrelated to his low back condition. Since his separation from service, VA treatment records dated through October 2012 show continuous complaints of left hip radiating pain. However, his VA treating physicians at no point provided a diagnosis of a left hip disorder, aside from his already service-connected left lower extremity radiculopathy. An April 2007 VA joints examination noted the Veteran's complaint of tenderness in the left hip. The examiner provided a diagnosis of left hip ischial bursitis and concluded that it was less likely than not related to his service connected lumbar disorder in terms of pathophysiology or clinical manifestations. The examiner further stated the Veteran suffered from a musculoskeletal condition affecting the hip joint and that it was unrelated to his lumbar conditions. However, the examiner failed to provide a reason why the Veteran's left hip ischial bursitis was not related to the lumbar conditions, or whether the diagnosed disorder may be directly attributable to the Veteran's military service. In January 2011, the Board remanded this claim for an addendum opinion to the April 2007 VA examination. Addendum opinions dated in February and August 2011 found that it was less likely as not that the Veteran's left hip ischial bursitis was related to service. The examiner stated that the condition was not treated during service or within one year following service. Further, the examiner stated the Veteran was treated for a lumbar condition radiating to his lower extremity and that ischial bursitis is not etiologically related to lumbar conditions, but to pelvic inflammation (pelvic ischial bones). Finally, the examiner noted the left hip ischial bursitis was diagnosed years after the Veteran's separation from service. In May 2012, the Board requested a VHA medical opinion regarding the etiology of the Veteran's hip disability in part because the February and August 2011 addendum opinions failed to address whether the Veteran's hip disability was caused or aggravated by the service connected lumbar conditions. In a response received in August 2012, a medical specialist opined, in pertinent part, that he was unable to find any evidence of disease affecting the low back. He also noted that the diagnosis of ischial bursitis is not based on objective medical evidence. However, he stated that a history and physical examination may identify findings in this region. He further indicated that he was otherwise unable to provide a non-speculative opinion regarding the etiology of the Veteran's hip disability. Consequently, in October 2012, the Board again remanded this claim for a history and physical examination. The Veteran was scheduled for a VA examination in January 2013. The Veteran reported that he suffers from pressure and pain, radiating to his left buttock and lateral thigh and lateral calf. The examiner also noted the Veteran suffers from chronic low back pain with left sciatica and left radiculopathy. Following a physical examination, the examiner determined there was no left or right hip condition found by history or physical examination. The examiner noted there was tenderness to palpation at the sciatica notch. However, there was no tenderness at with deep palpation of the ischial tuberosities. Ultimately the examiner concluded there was no left hip disability found on examination. There was evidence of a left sciatica, which is not a hip condition but rather a condition of the sciatica nerve, for which he is already service-connected. Further, there was no evidence found of an ischial bursitis. The examiner stated that the ischial tuberosities were palpated and the Veteran denied any tenderness when asked about pain. In fact, the Veteran stated his pain has always been in the lower back and pain radiating down from his lower back into his left buttock and down his left leg. The examiner stated there is no mention of a left hip condition or ischial tuberosity tenderness or pain in the claims file, aside from the April 2007 VA examiner's findings. In closing, the examiner stated that the in-service hip pain was at least as likely as not the left sciatica, which is already diagnosed and service connected, because sciatic produces pain in the mid-buttock and radiates down the leg, to reproduce palpation of the sciatica notch. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left hip disability, under any theory of entitlement, as he does not have a current diagnosis, or persistent or recurrent symptoms a disorder related to his military service, or caused or aggravated by his service-connected low back pain syndrome, a left knee disability, and/or sciatica and left lower extremity radiculopathy. Furthermore, the Board finds the unfavorable conclusions of the January 2013 VA examiner to be clear and supported by the objective medical evidence. The examiner provided a reasoned medical explanation for why the Veteran does not have a left hip disability, specifically, left hip bursitis, as identified by the April 2007 VA examiner. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). As a result, the Board accords great probative weight to the January 2013 VA examiner's opinion. Finally, the Veteran is competent to state that he experiences left hip pain. Layno v. Brown, 6 Vet. App. 465 (1994). His reports of left hip pain are also considered credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, his assertions are less probative than the contemporaneous medical evidence of record, which shows no diagnosis of a left hip disability, aside from his already service-connected left lower extremity radiculopathy. Further, pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a left hip disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left hip disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs