Citation Nr: 1326762 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-30 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for left foot disability, including as secondary to service-connected residuals of compound fracture of the left femur. 2. Entitlement to service connection for low back disability, including as secondary to service-connected residuals of compound fracture of the left femur. 3. Entitlement to service connection for hip disability, including as secondary to service-connected residuals of compound fracture of the left femur. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to July 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, where it had been brokered by the RO in Roanoke, Virginia, as well as a September 2009 rating decision by the Roanoke RO. Jurisdiction is with the Roanoke RO. The issue of service connection for a sciatic nerve disorder secondary to the service-connected left femur fracture has been raised by the record, in a December 1989 treatment record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of service connection for a left foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record does not demonstrate that a relationship exists between the Veteran's current hip disability and his period of active duty service, or his service-connected left femur disability. 2. The evidence of record does not demonstrate that a relationship exists between the Veteran's current low back disability and his period of active duty service, or his service-connected left femur disability. CONCLUSIONS OF LAW 1. A hip disability was not incurred in active duty military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A low back disability was not incurred in active duty military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A hip disability was not caused or aggravated by service-connected residuals of compound fracture of the left femur. 38 C.F.R. §3.310 (2012). 4. A low back disability was not caused or aggravated by service-connected residuals of compound fracture of the left femur. 38 C.F.R. §3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in April 2008, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008). Specifically, the notice informed the Veteran of information and evidence necessary to substantiate the claim for service connection for his hip and low back and of the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide. In April 2008, the Veteran was also notified of information and evidence that governs the initial assignment of a disability evaluation and the regulations regarding the effective date of the establishment of service connection. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated and a medical opinion has been sought in conjunction with his claim. The Board has reviewed that report and finds that it is adequate for rating purposes, as it was rendered on the basis of a review of the file and examination of the Veteran. The duty to assist has been fulfilled. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (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). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may also be granted for a disability which is proximately due to, or the result of another service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran claims that he has a current low back disability and hip disability that were caused or aggravated by his service-connected residuals of compound fracture of the left femur. Although it appears that the Veteran is only claiming secondary service-connection, the Board will address direct service-connection as well. A. Direct service connection As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. With respect to element (1), the record shows that the Veteran has current low back and hip disabilities. The April 2013 VA examiner diagnosed the Veteran with lower back pain and degenerative disc disease. See also, Dr. S. private treatment record dated in March 2009 (showing diagnoses of left lumbar sciatica, degenerative L4-L5 spondylolisthesis, spinal stenosis, L3 through the sacrum). The April 2013 VA examiner also diagnosed the Veteran with mild osteoarthritis of both hips noting the August 2005 VA x-ray study. Accordingly, current low back and hip disabilities are demonstrated by the record. Element (1) is therefore satisfied as to both issues. With respect to crucial element (2), in-service disease or injury, the Board will separately address disease and injury. Concerning in-service disease, the Veteran's service treatment records include no complaints of, treatment for, or diagnoses of any low back or hip disabilities. The Veteran's examination upon separation pertinently included a "normal" clinical evaluation of his spine, lower extremities, and neurological systems. See the Veteran's July 23, 1964 Report of Medical Examination. The Report only noted a scar on the posterior left hip. Id. No evidence of record demonstrates that degenerative arthritis of the lumbar spine and hip, as shown on x-ray, had their onset within the Veteran's first post-service year. As such, service connection for degenerative disc disease of the back or osteoarthritis of the hips may not be presumed under the provision of 38 C.F.R. § 3.307 and 3.309(a). Concerning in-service injury, the Veteran's service treatment record show that the Veteran broke his femur during service. There is no indication that he injured his back or hip at that time. Following service, the Veteran reported to the April 2013 VA examiner that his back disability began in 2003. The examiner noted that a September 2003 VA treatment record showed that the Veteran's back disability began after a fall on a chain saw in 2003, at which time he began seeing a orthopedist for his back pain. The Board does not find, nor does the Veteran contend that an in-service incurrence of an injury caused his current back and hip disabilities. With respect to element (3), nexus or relationship, below are summaries of medical opinion of record addressing the relationship between the Veteran's current low back and hip disability and his military service. In October 1980, Dr. B., the Veteran's private physician, noted that the Veteran's symptoms of his left hip were indeed related to the incident that occurred 17 years earlier. The physician noted that the Veteran had a diagnosis of mild arthritis of his hip but noted that x-ray of the left hip was normal with the exception of the healed fracture of the upper left femur. The examiner failed to provide an explanation for his opinion. In March 2009, Dr. S. noted that the Veteran had arthritis of the hip, which is "apparently" service-related. He provided no rationale for his opinion or explain how this hip arthritis was related to the Veteran's military service on a direct or secondary basis. In April 2013, the Veteran was afforded VA examinations for his hip, back and feet. The examiner stated that the Veteran's back disability was diagnosed after a fall that occurred in 2003. The examiner based his opinion on a September 2003 treatment record and the Veteran's own credible history. The examiner opined that the Veteran's back disability was in no way related to his injury of 1963. The examiner explained that the Veteran had no care related to his back disability prior to the fall injury in 2003. The April 2013 examiner also found that the injury that occurred in 1963 did not affect the left hip joint space itself. The examiner found that the Veteran has only minimum amount of arthritis bilaterally, to a degree expected for his age. The Board finds that the October 1980 opinion has little probative value. At the time the opinion was provided, there was no x-ray evidence of arthritis. The physician specifically said that x-rays of the hip were normal. Furthermore, the March 2009 opinion is dubious. Dr. S. said that his hip disability was "apparently" service-related. It is unclear whether the physician is providing an opinion or merely recalling the history of the injury provided by the Veteran. He also provided no additional explanation for his opinion. The Board finds that the greatest weight should be placed on the opinion provided by the April 2013 examiner. The examiner reviewed the Veteran's treatment records, the Veteran's claims file and provided an opinion with rationale. This is the most probative evidence regarding direct service connection. An alternative method of establishing the second and third service-connection elements is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Indeed, the Veteran has asserted at times during the appeal period that he has experienced back pain and hip pain since his service period to the present day. As explained above, the Veteran is competent to state his own observations of ongoing back and hip pain since service. The Board, however, does not find the Veteran's assertions of continuity credible in light of statements to the contrary he has made to treating physicians in the long period between his separation from service in July 1964 and the time he filed his service-connection claims in March 2008. The Board acknowledges that a December 1989 treatment record notes the Veteran's reported intermittent pain in his lower back and left hip and thigh since the time of the accident in service. Upon examination, he had full rotation of motion of his left hip with no pain. Forward flexion and extension of his back caused no pain. The examiner diagnosed the Veteran with bursitis of his shoulder and inflammation of his sciatic nerve, probably secondary to scarring and the callus formed from the left femur fracture. X-rays taken at that time showed no arthritis of the hip and AP & lateral x-rays of the back did not show any disc disease or any change in that area. An April 1990 VA examination notes the Veteran's reports of pain in his hips. The examiner concluded that the Veteran had painless limitation of motion of the hip flexion. X-rays of the hips taken in December 1999 were normal except for the femoral fracture. A July 2002 VA treatment record noted that the Veteran no longer had left hip pain. The first x-ray finding of hip arthritis is dated in August 2005. An August 2005 VA x-ray showed mild degenerative arthritis of both hips, right more than left. In a November 2005 statement, the Veteran stated that he now had continuous hip pain. This evidence does not show that the Veteran has had continuous hip or back disability since service. The evidence shows complaints of hip or back pain at times since 1963, but the Veteran was not diagnosed until 2003 for his back disability and 2005 for his hip disability. Although the Veteran was diagnosed with inflammation of the sciatic nerve in December 1989, no degenerative disc disease was found at that time and no hip disability was found. As indicated above, the issue of sciatic nerve disorder is being referred for appropriate action. The Veteran's main contention throughout the appeal is that his hip and back disabilities are secondary to his service-connected compound fracture of his left femur, which was be addressed below. In fact, in a November 2009 statement, the Veteran said that his left hip and pelvis were not injured during service. Accordingly, elements (2) and (3), in-service disease or injury and nexus or relationship respectively, have not been satisfied as to both issues, and the Veteran's direct service-connection claims fail on these bases. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. B. Secondary service-connection As discussed above, the Veteran has alternatively claimed that his current hip and low back disabilities was caused or aggravated by his service-connected left femur disability. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin, 11 Vet. App. at 512. Here, there is evidence of a current hip and low back disability. See discussion above. There is also evidence of a service-connected disability. The Veteran is service-connected for several disabilities, but claims that his hip and low back disabilities are due to his residuals of compound fracture of the left femur. The crucial element becomes element (3), nexus evidence establishing a connection between the service-connected disability. Below are summaries of medical opinion of record addressing the relationship between the Veteran's current low back and hip disability and his service-connected compound fracture of the left femur. In April 2013, the Veteran was afforded a VA examination for his disabilities. The examiner concluded that the Veteran's hip and low back disabilities were less likely as not proximately due to or the result of the Veteran's service-connected disabilities. The examiner explained that the Veteran's low back disability was diagnosed in 2003 following a fall on chain saw at which time the Veteran began seeing an Orthopedist for back pain as documented in a September 26, 2003 VA treatment record. The examiner explained that the Veteran had no prior treatment for his back disability prior to the accident and the Veteran reported that he could lift over 70 pounds, indicating a healthy back, prior to the accident in 2003. The examiner also noted that the Veteran had only a minimum amount of arthritis of his hips bilaterally, to a degree expected for his age. The examiner explained that for arthritis to have been caused by an injury there would need to be increased force or a leg length abnormality. The Veteran had no such leg abnormality and no significant gait abnormality. The examiner indicated that the injury itself did not affect the left hip joint space. As to the question of aggravation, the VA examiner noted that the Veteran recovered from his in-service injury and after discharge went on to a full 30 year career, followed after retirement with nearly fulltime work in farming. The Veteran's hip and back disabilities were all diagnosed decades after his service. The cause of his back disability, based on the Veteran's credible history, is documented as related to an accident in 2003. The examiner reiterated that no gait disturbance or leg length abnormality resulted from the femur fracture. The Veteran's hip arthritis is of minimal nature, is a radiologic finding only and is keeping with that to be expected with the Veteran's age. The examiner concluded that the Veteran's hip and low back disabilities were less likely than not aggravated by the service-connected residuals of left femur fracture. The April 2013 examiner's opinion is highly probative as he examined the Veteran and reviewed the Veteran's claims file before providing an opinion with explanation as to the relationship between the hip and low back disabilities and the Veteran's military service. The examiner's opinion is also corroborated by evidence in the claims file. The October 2013 VA examination report notes a normal gait with no abnormalities during ambulation or posture. A May 2008 VA examination also notes no evidence of leg shortening and normal gait. In June 2012, the Veteran was afforded a VA examination for his back disability. The examiner opined that it was less likely than not that his back was proximately due to or the result of his service-connected compound fracture of the left femur. Besides evidence above noting that the hip disability is related to his military service directly, there is no evidence or opinion showing that the Veteran's hip or low back disability is due to or aggravated by his service-connected compound fracture of the left femur. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claims, and against the reasoned conclusions of the VA examiner; he has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. As such, element (3) of Wallin remains unsatisfied, and the Veteran's claim of entitlement to service connection for hip and low back disabilities as right leg to residuals of compound fracture of the left femur fails on this basis. ORDER Service connection for a low back disability is denied. Service connection for a hip disability is denied. REMAND The United States Court of Appeals for Veteran Claims has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required in this case. In the Board March 2013 Remand, the Board explained that an examination was needed which included diagnostic tests, for instance x-ray of the left foot or whatever imaging is deemed appropriate. In April 2013, the Veteran was afforded a VA examination for his left foot. The examination report noted that imaging studies of the foot had been performed. Despite this, the examiner noted an abnormal finding of the foot included a small heel spur in a March 2011 x-ray study, which suggests that no x-ray was done at the time of the April 2013 examination. Therefore, a remand is needed so that a new examination can be conducted which included an x-ray of the Veteran's left foot. Furthermore, a February 2013 VA treatment record shows a diagnosis of sinus tarsitis of the feet. The April 2013 examiner only diagnosed the Veteran with plantar fasciitis and found that it was less likely as not related to the Veteran's military service or to his service-connected disability. The examiner did not discuss the new foot diagnosis of sinus tarsitis. The Board finds that a new VA examination is needed so that the recent foot diagnosis can be reviewed and discussed by the examiner. As the Veteran is receiving regular treatment at the VA, all recent VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any recent relevant VA treatment records that have not yet been obtained. 2. Then, arrange for the Veteran to be scheduled for a VA examination by a physician with sufficient expertise to determine the nature and etiology of the Veteran's left foot disability. The claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed. All records on Virtual VA should be provided to the VA examiner. X-rays of the Veteran's feet must be conducted. The examiner should answer the following questions: a. Is it at least as likely as not (50 percent or better probability) that the Veteran's left foot disorder is etiologically related to the Veteran's service or service-connected left femur fracture. b. Is it at least as likely as not (50 percent or better probability) that the Veteran's left foot disability is aggravated by the service-connected residuals of left femur fracture. If the service-connected residuals of left femur fracture aggravates (i.e., permanently worsens) a left foot disability, the examiner should identify the percentage of disability which is attributable to the aggravation, to the extent possible. See 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). For purposes of the opinion, the examiner should assume that the Veteran is a credible historian. A rationale for any opinion offered is requested. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Following the completion of the foregoing, and after undertaking any other development it deems necessary, review all the evidence of record [to include any and all relevant evidence added to the Veteran's electronic claims folder] and readjudicate his claim for service connection. If it remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs