Citation Nr: 1327199	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  08-32 993	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for bilateral hip disability, to include as secondary to service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities.

(The issues of entitlement to service connection for gastroesophageal reflux disease (GERD), and entitlement to an increased rating for gastric esophagitis, rated 10 percent prior to July 18, 2012, and noncompensable from July 18, 2012, are the subject of a separate decision of the Board.)


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel


INTRODUCTION

The Veteran had active military service from April 1971 to March 1973.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota.

In April 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

The issue was remanded for due process concerns in October 2009.  In July 2010, November 2011, and February 2013, the Board remanded the appeal for further development to obtain an adequate medical opinion addressing the relationship between the Veteran's bilateral hip disability and his service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities.  In April 2013, a VA examiner provided the requested opinion.  Therefore, a review of the record indicates that the Board's remand directives were substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  A right hip disability, to include mild right hip developmental dysplasia, was initially demonstrated many years after service, and has not been shown by the most probative competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability.

2.  A left hip disability, to include minimal degenerative joint disease of the left hip, was initially demonstrated many years after service, and has not been shown by the most probative competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability.


CONCLUSIONS OF LAW

1.  A right hip disability, to include mild right hip developmental dysplasia, was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).

2.  A left hip disability, to include minimal degenerative joint disease of the left hip, was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant 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 in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Further regarding notice, in March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, 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.  Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the award of the benefit sought.

The agency of original jurisdiction (AOJ), issued a VCAA notice letter to the Veteran in April 2008, prior to the initial adjudication of the claim, that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence and notified him that a disability rating and effective date will be assigned in event of award of any benefit sought per Dingess/Hartman.

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private treatment records, and VA examination reports.  Additionally, the claims file contains the Veteran's statements in support of his claims.  The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

The Veteran was provided VA examinations in May 2008, September 2010 and September 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The claim was remanded by the Board in July 2010, November 2011, and February 2013 to obtain an adequate medical opinion addressing the relationship of the Veteran's bilateral hip disability to his service or his service-connected disabilities.  In April 2013, a VA examiner provided the requested opinion.  Although the September 2012 VA examiner failed to provide a rationale for his opinion regarding the relationship between the Veteran's bilateral hip disability and his service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities, this error was cured by the same examiner in the April 2013 VA examination report.  Consequently, the Board finds that the aggregate of September 2012 and April 2013 VA examination reports was adequate to decide the claim of service connection because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings to include nexus opinions on direct or secondary basis, with adequate bases for the opinions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.)  Thus, further examination is not necessary regarding the issue on appeal.

Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board videoconference hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for service connection.  The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between current disability and service or service-connected disability.  The Veteran was assisted at the hearing by an accredited representative from the Vietnam Veterans of America.  During the hearing, the Veteran's representative indicated that the Veteran's current VA treatment records were outstanding.  Additional medical evidence consisting of VA treatment records dated from August 2008 through May 2012 were associated with the claims file.  Thus, the submission of overlooked evidence was not only suggested, but obtained.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in, or aggravated by, service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2012).  Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).  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 caused or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 488 (1995).

The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence.").

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify.").

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The Veteran asserts that service connection is warranted for bilateral hip disability.  He specifically contends that such condition is secondary to his service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities.  The record reflects that the Veteran is currently service connected for radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, internal derangement of the right knee and patellofemoral syndrome of the left knee.

After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for bilateral hip disability.

As an initial matter, the Veteran has a current diagnosis of bilateral hip disability as documented by his VA examination reports.  See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  To that effect, at a May 2008 VA examination, x-ray of the left hip revealed minimal degenerative changes of the acetabular roof along its lateral margin.  At a September 2010 VA examination, x-ray of the Veteran's right hip showed mild lateral uncovering of the femoral head suggestive of mild developmental dysplasia of the acetabulum, with no significant degenerative changes.  More recently, a September 2012 VA examination report confirms diagnoses of minimal DJD (degenerative joint disease) of the left hip and mild developmental dysplasia of the right hip.

However, the Veteran's bilateral hip disability first manifested many years after service and is not related to any aspect of service.  Service treatment records, including his March 1973 separation examination report, are entirely negative for any hip condition.  Symptoms of right hip pain were first reported by the Veteran in September 1996, 23 years after service; however, bilateral hip x-ray in October 1996 gave a final impression of normal bilateral hips with no radiographic findings to explain the Veteran's symptoms.  The first medical evidence of an abnormality of the hips was in May 2008.  At the May 2008 VA examination, x-ray of the left hip revealed that there were minimal degenerative changes; however, the examiner noted that the clinical significance of these changes was doubtful.  The Veteran reported during the May 2008 VA examination that his hips had been bothering him for the last 5 to 6 years.

As such, neither the Veteran nor the record suggests entitlement to service connection on a direct incurrence basis.  There is no demonstration of any event in service to which the current disability at issue may be etiologically linked.  The Board also finds that the Veteran's bilateral hip arthritis did not manifest within one year after separation from service.  The Board notes the 35 year gap between separation from service and the first record of a diagnosis of arthritis.  No records show a diagnosis of arthritis prior to 2008.  The Veteran does not contend, and the record does not demonstrate, that he had arthritis manifesting to a compensable degree within one year of separation from service.  Therefore, service connection for bilateral hip disability is also not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.

Furthermore, the opinion of the VA examiner in September 2012, who thoroughly reviewed the entire claims file, concluded that the bilateral hip disability was not related to military service.  In support of this opinion, the examiner stated that if dysplasia of the right hip was present and aggravated during military service, significant radiographic degenerative changes of the right hip would have been evidenced within 5 years of separation from active duty, but there was no such evidence of degenerative changes of the right hip.  Regarding the left hip, the examiner similarly noted that minimal degenerative changes of the left hip was most likely related to aging and an active life style in that there was no evaluation for a left hip while in active duty service and there was no evidence in the claims file of ongoing care for a left hip condition during the first year after separation from active duty service, with a normal left hip x-ray 23 years after separation from service.

In addition, the medical evidence of record does not establish that the bilateral hip disability is proximately due to, the result of, or aggravated by the Veteran's service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities.  In fact, the examiner who conducted the Veteran's September 2012 VA examination opined in April 2013 that mild right hip developmental dysplasia and minimal degenerative joint disease of the left hip were less likely than not (less than 50 percent probability) caused, or chronically aggravated by his radiculopathy of the left and right lower extremities, degenerative arthritis of the lumbar spine, internal derangement of the right knee, or patellofemoral syndrome of the left knee.  In reaching this conclusion, the examiner, who indicated that his opinion was based on the Veteran's history, a physical examination, and a review of the Veteran's medical records, provided the following rationale:

In order for these degenerative changes of the left hip to be related to his service-connected lumbar spine condition, right and left lower extremity service-connected radiculopathy, or right or left service-connected knee conditions, there MUST be a significant and chronic shift in the center of gravity during ambulation to shift stressful forces onto one or the other extremity.  If such shifting of stressful forces were to occur, one would expect that without a prior history of trauma to either hip, significantly increased degenerative changes would be present on the side to which additional stress had been shifted.  Given that only minimal degenerative changes are present on the left hip x-ray in 5/08, and there was no physical examination evidence for a shift in center of gravity to serve as a mechanism for shifting of stressful forces onto one lower extremity, it was most likely that this minimal DJD of the left hip was age related degenerative changes.

Similarly, regarding the right hip, the examiner explained that there is no medical evidence that the service-connected lumbar spine condition or right and left lower extremity conditions have contributed to a significant and chronic shift in the center of gravity during ambulation to serve as a mechanism to shift stressful forces onto either lower extremity, because if such shifting of stressful forces were to occur, one would expect that without a prior history of trauma to either hip, increased significant degenerative changes to have occurred on the side to which additional stress had been shifted.

The Board finds that these VA opinions to be competent, highly probative medical evidence as to whether the Veteran's current bilateral hip disability was caused by his service or service-connected disabilities.  They were based on a thorough review of the Veteran's records and were supported by well-reasoned rationale consistent with the other medical evidence of record.

At his April 2010 Board hearing and through various written submissions, the Veteran argued a position that service connection for his bilateral hip disability is warranted secondary to his service-connected disabilities.  He claimed that he often has to shift positions due to his back, knee and leg pain and overcompensates for his service-connected joints, which resulted in abnormal use of the hips and eventually caused his current bilateral hip disability.

However, the Veteran has not demonstrated that he has expertise in medical matters.  While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance.  In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent.  As to a nexus opinion relating his current hip disability to his service-connected disabilities, the Board finds that the etiology of the Veteran's left hip DJD or right hip developmental dysplasia is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence.  Thus, the Veteran is not competent to render a medical diagnosis or etiology of DJD or developmental dysplasia in this case.  Further, no medical evidence of record finds a relationship between the Veteran's bilateral hip disability and his service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities.  In contrast, the VA examiner in April 2013 opined that radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities, did not cause or aggravate the Veteran's left hip DJD or right hip developmental dysplasia.  In this regard, the Board attaches far greater probative value to the opinion of the April 2013 VA examiner who is a medical professional than to the Veteran's lay opinion regarding the etiology of his bilateral hip symptoms and the relationship between his current bilateral hip disability to his service-connected disabilities.

The Veteran is certainly competent to testify as to symptoms that are non-medical in nature, such as hip pain.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis).  However, he has not alleged continuity of symptomatology of his bilateral hip disability since service.  Specifically, he reported at the May 2008 VA examination that the onset of his bilateral hip problem was 5 to 6 years previously.  Regarding his current symptoms of bilateral hip pain, the VA examiner in April 2013 opined that radiculopathy of the right and left lower extremities and degenerative arthritis of the lumbar spine may cause symptoms of pain in the hip but did not cause or aggravate the Veteran's left hip DJD or right hip developmental dysplasia.  In this regard, the examiner in April 2013 clarified that the May 2008 VA examiner's opinion that bilateral hip condition was due to or proximately caused by service-connected degenerative arthritis of lumbar spine and bilateral radiculopathy of the lower extremities.  The May 2008 VA examiner stated that "bilateral hip pain is most likely from his bilateral lower extremity radiculopathy and not a separate entity.  There is minimal degenerative changes in his hip joints which is typical for a man in his age and is not the cause of his symptoms." (Emphasis added in italics).  The April 2013 VA examiner explained that although the Veteran has pain radiating through both hips related to his service-connected degenerative arthritis of the lumbar spine and bilateral radiculopathy of the lower extremities, there is no discrete left or right hip condition causing this pain.  The examiner specifically stated that the minimal DJD of the left hip and the mild developmental dyplasia of the right hip are not the cause of the Veteran's hip pain.

Therefore, the medical evidence of record does not show that that the Veteran's bilateral hip disability was either caused or aggravated by his service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities.

Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hip disability on a direct or secondary basis.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hip disability, to include as secondary to service-connected radiculopathy of the right and left lower extremities, degenerative arthritis of the lumbar spine, and right and left knee disabilities, is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs