Citation Nr: 1324090 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-24 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a bilateral hip condition, claimed as arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1960 to March 1963 and from February 1964 to March 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's claim of entitlement to service connection for a bilateral hip condition. The claim was previously remanded by the Board in January 2011 and in March 2013. The requested development has been substantially complied with and the claim is ready for appellate review. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional relevant records contained therein. The Board notes that the most recent VA examination appears to associate the Veteran's complaints of pain to a back disability. The RO has not yet issued a rating decision addressing a claim of entitlement to service connection for a back disability. To the extent that the Veteran may also be contending that he has a back disability related to his military service, the matter is referred to the RO for appropriate action. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has a current bilateral hip disability. CONCLUSION OF LAW Service connection for a bilateral hip disability is denied. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letter dated in September 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The VCAA letter informed the Veteran of what information or evidence was needed to support his claim what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The letter predated the rating decision. Notice as to how VA assigns disability ratings and effective dates was provided in a letter of September 2007 after the initial rating decision. As the claim is being denied, the timing deficiency with regards to this notice is harmless. Nonetheless, the claim was readjudicated in a supplemental statement of the case of July 2008. Therefore, any deficiencies with the timing requirements are harmless. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c) (2012). All of the Veteran's service treatment records, and VA and private treatment records have been associated with the claims file, and the Veteran has not identified any outstanding post-service treatment records for VA to obtain. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In January 2011, the Veteran's claim was remanded by the Board so that he could be afforded a VA examination relating to his claim. Based thereon, the Veteran was provided with a VA examination relating to his claim in March 2011. The Board found the examination to be inadequate and in a March 2013 remand, ordered a new examination. The Veteran was afforded another VA examination in April 2013. The April 2013 VA examination report reflects that the examiner reviewed the claims file, interviewed the Veteran, examined him, addressed the questions posed by the Board, and provided an adequate rationale for the conclusions provided. Therefore, the Board finds the April 2013 VA examination report to be adequate upon which to base a decision with regard to the Veteran's claim as it relates to his left hip, and that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria and Analysis The Veteran seeks entitlement to service connection for a bilateral hip condition, claimed as arthritis. He argues that he sustained an injury to the hips in service which has caused a present disability. Service treatment records show that in April 1964, the Veteran fell from a telephone pole and was treated over the course of a month for back pain. A discharge physical of January 1963for the Veteran's first period of active service noted all his systems to be normal. A January 1968 examination for release from the Veteran's second period of active service shows all the systems normal except for a body mark. In the accompanying report of medical history the Veteran denied any arthritis or back trouble. The Veteran has asserted that his physician told him his bilateral hip arthritis was caused by a significant fall earlier in life. Private treatment records of April 1999 show X-ray findings of possible SI joint degenerative changes. Records of May 1999 show X-ray findings of degenerative joint disease of the SI joint. The Veteran was afforded a VA examination in March 2011. The examiner found that there was no objective evidence of a chronic hip condition. The Veteran was afforded another VA examination in April 2013. After an examination of the Veteran and a review of the claim file, the examiner found there was no indication of a hip disability. With regards to the May 1999 X-rays which showed degenerative joint disease of the S/I joint, the examiner stated that the X-rays were done for complaints of back pain and the results pointed at the back rather than the hips as a cause of the Veteran's pain. He noted the X-ray report did not include anything about the hips and the X-ray findings regarding the S/I joints are not indicative of a current hip joint disability. Service connection may be established for a 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 (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) (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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Upon review of the evidence above, the Board notes that there is no showing of a bilateral hip disability. Indeed, the April 2013 examiner found no bilateral hip disability and clarified that the X-rays of the S/I joints which showed degenerative joint disease, are not indicative of a hip disability. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of a claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without a current diagnosis of a bilateral hip disability, the Veteran's claim for service connection for such may not be granted. See id. The Board acknowledges the veteran's contentions that he currently has a bilateral hip disability. While the Veteran is competent to report symptoms as he perceives them through his senses, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not competent to render a diagnosis on a complex medical question. The Board finds that the question as to whether there is a current bilateral hip disability is a complex medical question which the Veteran does not have the requisite expertise to provide an opinion on. Therefore, the Board places greater probative weight on the medical evidence of record which associates his complaints with a back condition rather than a hip disability. Therefore, the Board finds that a preponderance of the evidence is against granting service connection for a bilateral hip disability. There is not an approximate balance of evidence, and the benefit of the doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a bilateral hip disability is denied. ___________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs