Citation Nr: 1324767	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  10-00 113A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for a bilateral hip disability.

2. Entitlement to service connection for a deviated septum.

3. Entitlement to service connection for hypertension.

4. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, bilateral knees.

5. Entitlement to an initial compensable rating for mild to moderate narrowing at L5-S1 disk space.

6. Entitlement to an initial compensable rating for parosmia (claimed as loss of sense of smell).



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served in the Air Force on active duty from April 1991 to October 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The February 2009 rating decision granted service connection for degenerative joint disease, right knee, at a noncompensable rating, effective from October 22, 2008 and degenerative joint disease, left knee, at a noncompensable rating, effective from October 22, 2008. In a November 2009 rating decision the RO determined that the decision to award separate noncompensable ratings for degenerative joint disease of each knee was clearly and unmistakably erroneous and assigned a 10 percent rating for degenerative joint disease, bilateral knees, effective from October 22, 2008.

The February 2009 rating decision also denied service connection for a bilateral hip disability and deviated septum. A claim for service connection for a low back disability was decided in the October 2009 rating decision.  

The October 2009 rating decision, in pertinent part, granted service connection for mild to moderate narrowing at L5-S1 disk space with a noncompensable rating effective from October 22, 2008, and parosmia with a noncompensable rating effective from October 22, 2008.  The October 2009 rating decision also denied service connection for hypertension.

The Veteran's Virtual VA file has also been reviewed as part of his appeal.

The issues of entitlement to service connection for hypertension, entitlement to an initial rating in excess of 10 percent for degenerative joint disease of bilateral knees, entitlement to an initial compensable rating for mild to moderate narrowing at L5-S1 disk space and entitlement to an initial compensable rating for parosmia (claimed as loss of sense of smell) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The competent and credible evidence fails to demonstrate that the Veteran's bilateral hip disorder is related to his active duty service. 

2. The competent and credible evidence demonstrated that the Veteran's deviated septum is a congenital defect.


CONCLUSIONS OF LAW

1. A bilateral hip disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2. A deviated septum was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

An October 2008 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The letter also notified the Veteran of how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). 

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA medical records, multiple lay statements, and multiple VA examination reports. 

The Veteran was provided with a VA examination in December 2008. The report of the examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examination is adequate. See 38 C.F.R. § 4.2 (2012).

All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. 

All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.

Merits of the Claim

The Veteran seeks service connection for a deviated septum and a bilateral hip disability that he contends are associated with his active duty service. There is no competent, probative evidence supporting his claims. The Board must deny his claims. 38 C.F.R. § 3.102.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372  (Fed. Cir. 2007).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). While arthritis is a chronic disease under § 3.309(a), there is no evidence that the Veteran has been diagnosed with arthritis with respect to any bilateral hip condition. Therefore, the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus with regard to the Veteran's claim for a bilateral hip disability. 

As a deviated septum is not a chronic disease or injury under § 3.309(a), the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

In a December 2008 VA examination, the Veteran was diagnosed with congenital deviated septum status post septoplasty resolved with expected surgical outcome. It was also noted that the Veteran did not exhibit any objective evidence of a bilateral hip condition. 

The Veteran's service treatment records, specifically an April 1998 report of medical history indicated that he had been treated for a deviated septum which had been "operated on and removed". There was no mention of a deviated septum on either the entrance or the exit examinations. The service treatment records noted several complaints of bilateral hip pain. A September 1992 treatment record reported that the Veteran felt a pop in his hip while lifting boxes a month previously. The examiner diagnosed laxity of hip adductors and extension. A physical therapy note from later that same month indicated that the Veteran complained of a lot of popping in his hips. He was diagnosed with subluxing proximal tendons. An October 1992 physical therapy note stated that the Veteran met his goal and was pain free. The Veteran again complained of popping and pain in his hips in October 2003. He stated that his hip pain had started 2-3 years prior. He was diagnosed with probable iliotibial band snapping over his greater trochanter (the bony prominence over the outside of the hip joint). An x-ray revealed normal hips bilaterally. There was no mention of any bilateral hip condition on either the entrance or separation examinations. 

The Veteran was afforded a VA examination in December 2008. The VA examiner noted that the Veteran had residuals of a deviated septum, but that the Veteran's deviated septum was congenital and status post septoplasty resolved with expected surgical outcome. With respect to his claim for service connection for a deviated septum, a congenital or developmental defect is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). As such, a congenital or developmental defect generally may not be service-connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). The presumption of soundness does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).

After a review of the Veteran's entire claims folder and thorough examination, the December 2008 VA examiner noted that while the Veteran had some limitation of motion in his bilateral hips, but that limitation was due to body habitus. X-rays taken in conjunction with the examination revealed normal hips. The examiner determined that there was no objective evidence of a bilateral hip condition. 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet.App. 67, 74 (1997). 

Lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997).

Laypersons are generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

The December 2008 VA examination is the most probative medical evidence addressing the Veteran's claimed bilateral hip disorder, because it is clearly factually informed, medically based and responsive to this inquiry. The examiner reviewed the Veteran's medical history and his claims file and determined that the Veteran did not have a current disability with regard to his bilateral hips.  While the Board has considered the Veteran's complaints of pain, pain alone is not a disability and without a diagnosed or identifiable underlying malady or condition, cannot be service-connected. Sanchez-Benitez v. West, 13 Vet. App. 282, 285   (1999). Because the Veteran does not have a bilateral hip disability, service connection cannot be granted as a matter of law. 38 U.S.C.A. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim).

Most critically, the Veteran's essential contention of a relationship between an in-service incurrence and any current diagnoses of a bilateral hip disability or residuals of a deviated septum has been fully investigated as mandated by the Court's decision in Jandreau. The Board finds the preponderance of the evidence is against the claims, and service connection for a deviated septum and service connection for a bilateral hip disability must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Service connection for a bilateral hip disability is denied.

Service connection for a deviated septum is denied.


REMAND

In an October 2009 rating decision service connection was granted for mild to moderate narrowing at L5-S1 disk space and parosmia, both with a noncompensable rating. Service connection was denied for hypertension in that same rating decision  In a VA Form 21-4138, dated January 2010, the Veteran disagreed with the ratings assigned and with the denial of service connection. He was not, however, issued a Statement of the Case with regard to those claims.

Since the Veteran submitted a timely notice of disagreement regarding the issues of entitlement to an initial compensable rating for mild to moderate narrowing at L5-S1 disk space, entitlement to an initial compensable rating for parosmia, and entitlement to service connection for hypertension, the Board is required to remand these issues to the RO for issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999).

Regarding the claim for an initial rating in excess of 10 percent for degenerative joint disease, bilateral knees, as the Veteran last underwent relevant VA Compensation and Pension examination in December 2008, nearly five years ago, another VA examination is warranted to obtain more contemporaneous examination findings. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995)

Accordingly, the case is REMANDED for the following action:

1. Issue a Statement of the Case concerning the claims of entitlement to initial compensable rating for mild to moderate narrowing at L5-S1 disk space, entitlement to an initial compensable rating for parosmia, and entitlement to service connection for hypertension. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on the aforementioned issues should they be returned to the Board. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 202 (2012).

2. The RO/AMC must then schedule the Veteran for a VA orthopedic examination pertaining to the severity of his degenerative joint disease, bilateral knees. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies must be performed, and all findings should be set forth in detail. 

(a) The examiner must conduct complete range of motion studies and describe all current bilateral knee symptomatology. 

(b) The examiner must state whether there is recurrent subluxation or lateral instability, and, if so, whether disability manifested by recurrent subluxation or lateral instability is best characterized as "slight," "moderate," or "severe."

(c) The examiner must state whether the semilunar cartilage is dislocated, and whether there are frequent episodes of locking, pain, or effusion into the joint.

(d) The examiner must also indicate whether there is any evidence of impairment of the tibia or fibula in terms of malunion or nonunion. If there is evidence of malunion of the tibia or fibula, the examiner must indicate whether the resulting disability is best described as "slight," "moderate," or "marked" in degree. If there is evidence of nonunion of the tibia or fibula, the examiner must indicate whether loose motion is present and whether a brace is required.

3. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998).

4. The RO/AMC should readjudicate the claims on appeal based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs