Citation Nr: 1323911	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  07-21 775	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability, claimed as secondary to a service-connected left ankle disability. 

2.  Entitlement to service connection for a bilateral hip disability, claimed as secondary to a service-connected left ankle disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and the Veteran

ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel


INTRODUCTION

The Veteran served on active duty from October 1943 to July 1946.  He died in July 2010, and the appellant, his surviving spouse, has been substituted as the claimant for the purposes of processing the claim to completion.  See 38 U.S.C.A. § 5121A (West 2002); Substitution in Case of Death of a Claimant, 76 Fed. Reg. 8,666 (proposed Feb. 15, 2011) (to be codified at 38 C.F.R. § pts. 3, 4, and 20).

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The claim was subsequently transferred to the jurisdiction of the RO in Waco, Texas.

In January 2010, the Veteran and the appellant testified before the undersigned; a transcript of the hearing is of record.  In May 2010 and January 2013, the case was remanded for additional development and is again before the Board for appellate review.

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).


FINDINGS OF FACT

1.  The Veteran has not been shown to have a lumbar spine disability that is causally or etiologically related to his service-connected left ankle disability.
2.  The Veteran has not been shown to have a bilateral hip disability that is causally or etiologically related to his service-connected left ankle disability.


CONCLUSIONS OF LAW

1.  A lumbar spine disability is not proximately due to, the result of, or aggravated by a service-connected left ankle disability.  38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 

2.  A bilateral hip disability is not proximately due to, the result of, or aggravated by a service-connected left ankle disability.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (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 provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

In this case, the RO provided the appellant with adequate notice in letters dated in March and April 2006, prior to the initial decision on the claim in June 2006.  Therefore, the timing and content of notice requirements have been met. 

VA has also done everything reasonably possible to assist the appellant in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c).  The Veteran's service treatment records as well as all identified and available private medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim.  The appellant and her representative have not identified any outstanding evidence that is relevant to the claim on appeal.

In January 2010, the Veteran and the appellant were provided an opportunity to set forth their contentions at a hearing before the undersigned.  The record reflects that at this hearing the undersigned identified the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim for service connection, and sought to identify any further development that was required to help substantiate the claim.  These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Notably, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

The case was remanded in May 2010 and in January 2013 for an examination and opinion as to the etiology of the claimed disorders.  Such was accomplished in June 2010 (with a March 2013 addendum opinion).  The Board finds that the examination and addendum medical opinion obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private medical records contained in the claims file.  The examiner considered all of the pertinent evidence of record, including the contentions of the appellant, and provided a complete rationale for the opinion stated.  As such, the Board concludes that VA obtained an adequate examination in this case.  Furthermore, as an adequate opinion addressing the claim is of record, the Board concludes that there has been substantial compliance with the May 2010 and January 2013 remand directives, and no further development in this regard is necessary.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999).

Based upon the foregoing, the Board finds that there is no further notice or development needed in this case.

II.  Analysis

The appellant argues that the Veteran's diagnosed degenerative joint disease of the lumbar spine and bilateral hip was caused or aggravated by his altered gait from his service-connected left ankle disability.  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).
With regard to current disability, the Veteran had a diagnosis of bilateral sacroiliac joint (hip) degenerative joint disease and degenerative joint disease of the lumbar spine, as specified on a June 2010 VA examination report.  Thus, the crux of the appeal is whether these disorders were caused or aggravated by his service-connected left ankle disability.

The only probative evidence of record pertaining to this question is a March 2013 addendum opinion by a VA physician.  After a full review of the claims file, he opined that neither the back condition nor the bilateral hip condition was caused by or related to the Veteran's left ankle disability.  He noted that there was no nexus between ankle instability and development of degenerative joint disease of the lumbar spine or the sacroiliac joint.  He found that the same was also true regarding whether the lumbar spine and bilateral hip disabilities were aggravated beyond their normal course by the ankle.  The physician explained that the Veteran worked as a maintenance engineer, and it was more likely than not that this lumbar and bilateral hip disabilities were due to the normal wear and tear associated with that type of work as well as by the normal aging process.

In this regard, the Board also notes that private records dated in June 1977 and March 1985 document two post-service injuries to the back (i.e., a falling injury and a twisting injury while cleaning a floor, respectively), resulting in lumbar spinal subluxations.

Neither the appellant, nor her representative, has identified a contrary opinion that weighs in favor of the claim.

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).  Assertions by the appellant (to include those made by the Veteran) and her representative that there exists a medical nexus between the Veteran's lumbar spine and bilateral hip disorders and his service-connected left ankle disability provide no basis for allowance of the claim.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the matter on which this claim turns-a nexus opinion between the Veteran's service-connected left ankle disability and his current lumbar spine and bilateral hip disorders- falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)."  Hence, the lay assertions in this regard have no probative value.

Upon consideration of all of the evidence of record, the Board finds that the claim for service connection must be denied.  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 claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a lumbar spine disability, claimed as secondary to a service-connected left ankle disability, is denied.

Entitlement to service connection for a bilateral hip disability, claimed as secondary to a service-connected left ankle disability, is denied.



____________________________________________
Sonnet Gorham
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs