Citation Nr: 1323329 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-46 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for arthritis, bilateral hips, claimed as secondary to service-connected left knee arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from August 1942 to February 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran perfected an appeal as to additional issues arising out of the August 2009 decision which have since been resolved, to include the RO's grant of service connection for right knee arthritis (see May 2013 rating decision). By letter dated in January 2013, the RO informed the Veteran that he was scheduled to attend a Board hearing in February 2013 pursuant to his request for such a hearing. However, he subsequently informed VA in January 2013 that he did not want a Board hearing. The issue presently on appeal was previously before the Board in April 2013 at which time the Board remanded the matter for additional medical development; namely, for a VA examination and medical opinion. The examination was conducted in May 2013 and the examination report contains a medical opinion and is deemed adequate for rating purposes. Thus, there has been substantial compliance with the Board's April 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDING OF FACT The Veteran's bilateral hip osteoarthritis is not attributable to service or to a service connected disability. CONCLUSION OF LAW Bilateral hip osteoarthritis was not incurred in or aggravated by service, may not be presumed to have been incurred in service, nor is such disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal regarding service connection for arthritis of the bilateral hips, the appellant was provided with initial notice of the VCAA in April 2009, which was prior to the August 2009 decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied with respect to these claims. VA has fulfilled its duty to notify the appellant in this case. In the April 2009 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims being decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F. 3d 1483, 1485 (Fed. Cir. 1997). Thus, the Board finds that the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 471 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claim being decided herein, the Board finds that the appellant is not prejudiced by a decision as the Veteran was provided with notice of the disability rating and effective date elements in the April 2009 letter. The Board also finds that all necessary assistance has been provided to the appellant with respect to the claim being decided herein. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate this claim, including requesting information from the appellant regarding pertinent medical treatment he may have received and obtaining such records, and affording him VA examinations during the appeal period. In regard to VA examinations, the Veteran was afforded a pertinent VA examination in May 2013. The examiner provided sufficient detail for the Board to make a decision and the report is deemed adequate with respect to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The appellant was also provided with the opportunity to attend a Board Hearing which he initially requested, but later withdrew. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in his claim being decided herein and that adjudication of this claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Analysis Facts Service treatment records show that the Veteran was treated for left knee symptoms which he related to a football injury in April 1943. These records are devoid of complaints or findings related to the right or left hip. They show that he had no musculoskeletal defects at his January 1946 separation examination with the exception of the left knee. An x-ray taken of the Veteran's right hip in November 2007 revealed marked osteoarthritic deformity involving the right hip. A November 2007 VA addendum outpatient record notes that the Veteran had extensive osteoarthritis of the right hip in addition to his knees and lower back. He expressed his surprise as he did not have much pain. A February 2008 VA telephone record reflects the Veteran's complaint of pain in his hip at times. The Veteran reported at a VA primary care clinic visit in April 2008 that he had a lot of problems from his waist down. He said he had learned to compensate for his lower extremity disabilities by walking very slowly to avoid falls and by limiting activities which he felt were dangerous or caused discomfort. He said he used to enjoy doing mechanic work and plumbing, but presently did not do such things due to his arthritis of the lower extremities. He was assessed as having extensive arthritis in the lower extremities - the lower spine, hips and knees limiting his function on a daily basis. The Veteran explained at a VA outpatient clinic visit in October 2008 that his hips were less painful than his knees, but it was difficult to bend the right leg to put on his shoe and sock. He was assessed as having severe osteoarthritis with chronic pain. A VA general orthopedic record in November 2008 shows that the Veteran reported a six month history of right hip pain only when putting on his pants, not with ambulation. On examination minimal pain was noted in the right hip at extremes of motion. X-rays revealed marked osteoarthritic deformity involving the right hip. Various VA outpatient records in 2008 and 2009 note that the Veteran had severe osteoarthritis of the right hip. In March 2009, the Veteran filed a claim for service connection for arthritis of the hips as secondary to his service-connected left knee disability. VA outpatient records in October 2009 and March 2010 show that the Veteran underwent mobility equipment training. In August 2010 the Veteran underwent a VA examination for his hips. The examiner remarked that VA medical center x-rays showed a normal left hip and a marked osteoarthritic deformity of the right hip. He relayed the Veteran's report that his inservice knee injury and associated pain and changes to his walking pattern caused the arthritis in his hips. He also relayed the Veteran's report that his right hip was his biggest source of pain. The examiner diagnosed the Veteran as having severe degenerative arthritis of the right hip and minimal arthritis of the left hip. After examining the Veteran and reviewing the Veteran's claims folder, the examiner stated that as far as the Veteran's assertion that his hip arthritis was caused by or aggravated by his service-connected left knee injury, although this is a widely circulated opinion among both physicians and the general public, he knew of no scientific evidence that supports or denies this theory of causation. He concluded by stating that he could not resolve the issue without resorting to mere speculation. In May 2013, the Veteran underwent another VA examination for his hips. After examining the Veteran and reviewing his claims file, the examiner opined that it was less likely as not that the Veteran's hip condition was incurred in or caused by an in-service injury, event or illness. He explained that the Veteran was service connected for left knee arthritis and there was no evidence of complaints or treatment of bilateral hip condition during service or within one year thereafter. He went on to opine that it was less likely as not that the Veteran's hip condition was proximately due to or the result of the Veteran's service-connected disability. He explained that the Veteran was service-connected for left knee arthritis and denied any falls as a result of this disability, causing injuries to the hips. He further explained that there was no established causal relationship between left knee arthritis and the development of arthritis in the hips. He said arthritis of the hips can be caused prematurely by direct trauma to the hip joint, or by normal aging. He said left knee arthritis does not cause direct trauma to the hips. He further opined that this condition was not at least as likely as not aggravated beyond its natural progression by the service-connected left knee disability. He explained that arthritis of the hips can be caused by normal aging and the Veteran reported a very physically active life until later in life. He went on to remark that arthritis of the hips at age 91 is a natural progression of the condition. He said there was no evidence that the Veteran's arthritis of the hips had worsened by his service-connected left knee arthritis. Law and Regulations As an initial matter, the Board notes that the Veteran is not asserting, nor does the evidence show, that his bilateral hip osteoarthritis is the result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, 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). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also 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). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See Fed. Reg. 71 fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b)). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. As the Veteran's claim for service connection arthritis of the bilateral hips was filed in March 2009, the current version of 38 C.F.R. § 3.310(b) as outlined above is for consideration. See 38 C.F.R. § 3.310(b) (2012). With that said, under the facts of this case, the regulatory change does not impact the outcome of the appeal. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran's service treatment records do not show any complaints or treatment with respect to the hips. These records also show that the Veteran had no musculoskeletal defects at his January 1946 separation examination with the exception of the left knee. The first indication of hip problems dates back to November 2007. In this regard, an x-ray of the Veteran's right hip was taken in November 2007 revealing marked osteoarthritic deformity involving the right hip. There is also a November 2007 VA addendum outpatient record noting that the Veteran had extensive osteoarthritis of the right hip in addition to his knees and lower back at which time the Veteran expressed his surprise since he didn't have much pain. As for the left hip, the first indication of problems is an April 2008 VA outpatient record diagnosing arthritis of the hips. The claims file is devoid of evidence of hip complaints or treatment prior to 2007. The absence of documented symptoms of bilateral hip problems from the time of the Veteran's service separation in February 1946 until November 2007 (right hip) and April 2008 (both hips) interrupts continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). Though this finding is not determinative of the claim, it warrants consideration. Moreover, the Veteran is not claiming that he has had bilateral hip symptoms since service. Rather, his claim is based on the assertion that the condition is secondary to his service-connected left knee disability. Thus, as the weight of evidence does not show chronic bilateral hip arthritis since service, or continuity of symptomatology after service, service connection under the provisions of 38 C.F.R. § 3.303(b) has not been established. Also, as arthritis of the hips has not been shown within one year of service, service connection under the provisions of 38 C.F.R. §§ 3.307, 3.309 has likewise not been established With respect to establishing service connection on a direct basis under 38 C.F.R. § 3.303(d) or as secondary to the Veteran's service-connected left knee disability under 38 C.F.R. § 3.310, the evidence is against the Veteran's claim. The VA examiner in May 2013 negated a nexus between bilateral hip osteoarthritis and service based on his review of the Veteran's claims file and examination of the Veteran. Regarding on a direct basis, he opined that it was less likely as not that the Veteran's hip condition was incurred in or caused by an in-service injury, event or illness. He explained that the Veteran was service connected for left knee arthritis and there was no evidence of complaints or treatment of bilateral hip condition during service or within one year thereafter. As for secondary service connection, the Veteran asserts that his service-connected left knee disability has caused wear and tear on his other joints, to include the hips. He asserted at the August 2010 VA examination that his inservice left knee injury with associated pain and changes to his walking pattern caused arthritis in his hips. However, the VA examiner opined that it was less likely as not that the Veteran's hip condition was proximately due to or the result of the Veteran's service-connected disability. He explained that the Veteran was service-connected for left knee arthritis and denied any falls as a result of this disability, causing injuries to the hips. He further explained that there was no established causal relationship between left knee arthritis and the development of arthritis in the hips. He said arthritis of the hips can be caused prematurely by direct trauma to the hip joint, or by normal aging. He said left knee arthritis does not cause direct trauma to the hips. He went on to opine that this condition was not at least as likely as not aggravated beyond its natural progression by his service-connected left knee disability. He stated that arthritis of the hips can be caused by normal aging and the Veteran reported a very physically active life until later in life. He went on to remark that arthritis of the hips at age 91 is a natural progression of the condition. He said there was no evidence that the Veteran's arthritis of the hips had worsened by his service-connected left knee arthritis. As to the Veteran's statements that his postservice bilateral hip osteoarthritis is related to service or secondary to his service-connected left knee disability, the Veteran is certainly competent to testify as to his symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 f. 3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Notwithstanding the fact that this matter appears to be the type of medical matter as to which the courts have held lay testimony is not competent, even if the Veteran were competent to opine as to the etiology of his bilateral hip osteoarthritis, the specific and reasoned opinion of the trained professional in May 2013 negating a nexus on both a direct and secondary basis outweighs the Veteran's general lay assertion of a nexus. Based on the foregoing, the Board finds that the weight of evidence goes against the Veteran's claim for service connection for osteoarthritis of the bilateral hips, to include as secondary to service-connected left knee disability. In reaching this conclusion 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. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for arthritis, bilateral hips, claimed as secondary to service-connected left knee arthritis, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs