Citation Nr: 1327590 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-12 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from January 1956 to November 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2012, the Veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of his claim. A complete transcript is of record. In November 2012, the Board remanded this clam for further development and the development requested in the Board's remand has been completed to the extent possible. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The Veteran's right hip disorder was not present in service or due to any incident of service. CONCLUSION OF LAW The Veteran's right hip disorder was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in January 2009, prior to the initial adjudication of the Veteran's application to reopen the claim, the RO advised the Veteran of the previous basis for the denial of his claim and the evidence that was necessary to reopen the claim. In addition, the RO notified the Veteran of the information necessary to substantiate his service connection claim, and of his and VA's respective obligations for obtaining specified different types of evidence. He was also told that the evidence must show a relationship between his current disabilities and an injury, disease or event in military service, to include the Veteran's fall from a flight deck during service, at which time he reportedly sustained injury to his back, and right arm, elbow, and hip. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claims. This letter also provided information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, the Veteran's VA and service treatment records have been obtained. Private medical records have been obtained, and the Veteran has not authorized the release of any other private records. Neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In this regard, the Board further notes that although the Veteran requested an additional 30 days to provide additional evidence in support of his claim in March 2013, he was actually given far more time in which to submit such evidence and none has been received. In addition, in his hearing presentation in May 2013, the Veteran's representative indicates no intention on his part to submit additional evidence, instead choosing to question the conclusions of the January 2013 VA examiner based on a prior X-ray finding of greater disability in the right hip when compared with the left. The Board further finds that in reviewing the February 2013 supplemental statement of the case (SSOC), while the RO did not specifically address additional VA treatment records that are only contained within the Veteran's "eFolder," it does state that it reviewed the Veteran's claims file, which can reasonably be interpreted to include the "eFolder." Moreover, these records do not reflect any treatment for the right hip (February 2012 records reflect treatment to the left hip arising out of a fall from a barstool). In January 2012, the Veteran additionally mentions his fall from the flight deck, but only indicates that he injured his back. He also mentions one of his hips when he stated that he had fallen and bumped his "hip and not be able to work for sometimes several weeks," but even if he was referring to his right hip, this statement amounts to nothing more than a reiteration that the Veteran has continuing right hip disability and thus is merely cumulative of evidence and argument that is already of record. Consequently, even if it were determined that the additional VA treatment records were not reviewed by the RO at the time of the issuance of the February 2013 SSOC, remand for the RO's initial consideration of this evidence is not warranted. See 38 C.F.R. § 20.1304(c) (2012). A VA medical examination was also obtained concerning the issue on appeal in January 2013. The examination and opinions were based upon consideration of the Veteran's prior medical history, including medical records and examinations, and also address the claimed disability and the contentions in support of a relationship between that disability and the Veteran's active service with sufficient explanation and detail to permit the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board is also satisfied there was substantial compliance with its earlier Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The VA examination report that was generated as a result of the Board's remand reflects the examiner's review of the Veteran's claims file, and consideration of the lay statements from the Veteran and his witnesses with respect to the issue of continuity of symptomatology. Further, when considered in light of the VA, private, and service treatment records, the medical opinion obtained addresses all the pertinent medical questions and is deemed adequate. Thus, there has been substantial compliance with the Remand instructions and there is thus no basis to find any Stegall violation in this case. As was noted above, the Veteran was also provided a Board hearing in May 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above 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. The Board finds that both duties were met during the hearing. The undersigned Veterans Law Judge fully explained the issue on appeal and suggested the kind of lay witness and medical opinion evidence that would be needed to substantiate the claim. Thus, the Board finds that all necessary notification and development has been accomplished, and that appellate review may therefore proceed. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. In addition, arthritis may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Further, as arthritis is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service treatment records do not reflect any complaint, diagnosis, or treatment of a right hip disorder. Private treatment records dated from May 1991 to October 2001 do not indicate any treatment for a right hip disorder. A lay statement from a fellow service member, dated in July 2003, does indicate that this witness had heard about someone falling from the flight deck to the lower deck on board the USS Essex, and that he "later found out the person that fell was [the Veteran]." VA treatment records for the period of May 2004 to March 2012 reflect that in October 2004, X-rays of the pelvis revealed no evidence of fractures with respect to either hip. Joint space in the right hip was noted to be narrowed with some subchondral sclerosis of the superior aspect o eh acetabulum and osteophytosis. It was noted that the left hip was also narrowed, but to a lesser degree, and that mild subchondral sclerosis with small osteophytes were also present along the superior aspect of the acetabulum. The impression was bilateral hip joint space narrowing, right greater than the left, and subchondral sclerosis and acetabular osteophytes suggestive of degenerative arthritis. An August 2004 private medical statement from Dr. S. indicates that the Veteran is a patient of Dr. S. and that the Veteran had a history of problems with his right hip. It is further indicated that the Veteran had a history of a fall while in the Navy in 1959, and that his "problems today could have been caused by that fall in 1959." An August 2004 statement from another fellow service member also indicates that he recalled the Veteran stating that during the fire on board the USS Essex, he had "fallen into one of the ship[']s gun tubs and wasn't feeling to[o] good." VA X-rays of the hips in February 2006 were interpreted to reveal DJD in each hip. VA X-rays of the hips in June 2009 were interpreted to reveal bilateral mild to moderate degenerative changes of the hips. The examiner further commented that the Veteran had arthritis in his hips. At the Veteran's hearing before the Board in May 2012, the Veteran testified that he sustained injury to his back and right arm, shoulder, and hip in his fall off the flight deck during service, and that with respect to his hip problem, although he did not treat for a number of years, a private physician in the late 60's ultimately told him that he had sustained a right hip fracture and provided treatment with traction (transcript (T.) at pp. 2-9). He indicated that the records from this treatment were unavailable and that he did not seek out treatment with the VA for his right hip problems until many years later (T. at pp. 10-13). A May 2012 statement from the Veteran's first former spouse reflects her recollection that the Veteran complained of difficulties with his right side and back in the 60's (hip, arm). A May 2012 statement from a fellow truck driver notes that this witness had known the Veteran since 1966 and that for as long as the witness had known the Veteran, the Veteran had complained of problems with his back and hip. A May 2012 statement from the Veteran's second former spouse (between approximately 1972 and 1992) reflects her recollection that the Veteran had continuing back and arm problems during that time period. VA examination in January 2013 revealed that the examiner reviewed the Veteran's claims file in connection with his examination of the Veteran, and that the examiner specifically noted the Veteran's lay statements from ex-wives and co-workers that the Veteran had complained of right hip problems since service, and the August 2004 private opinion in favor of the claim. During the examination, the examiner noted that when he asked the Veteran where his right hip pain was located, the Veteran reported to the right buttock area. Thus, the examiner concluded that when the Veteran talked about right "hip pain" he was really referring to the right buttock and not the right hip. Consistent with this observation, the examiner went on to note that the Veteran's history of relevant treatment in the 60's was actually traction for right buttock pain to the right buttock and back. His current complaints consisted of pain across the low back and right buttock, without groin pain. The examiner reiterated his opinion that the Veteran did not have an isolated right hip problem. It was part of the pain from his back. He also noted that June 2009 X-rays revealed mild symmetric bilateral hip degenerative changes typical for age. The January 2013 VA examiner concluded that the DJD in the right hip was less likely than not incurred in or caused by the claimed in-service injury, noting once again that his complaints of "hip pain" are actually part of his low back condition. He further noted that hip arthritis typically caused pain in the groin and he did not currently have any groin pain. Hip arthritis also typically caused loss of motion of the hip and pain in the groin with motion of the hip, and that physical examination at this time revealed only normal findings without pain in the groin. He further commented that if the described injury would have caused hip arthritis, one would expect the X-rays to show more degenerative changes and for the right to look worse than the left. X-rays of the bilateral hips showed only mild degenerative changes typical for the Veteran's age with right equal to the left. Initially, the Board notes that the Veteran claims that he sustained an injury to his right hip arising out of his fall during service, however, the contemporaneous treatment records do not document his contention. Moreover, the Veteran has not been shown to have any background or special training that would permit him to diagnose arthritis, and so while he and his other lay witnesses may be able to describe symptoms of pain on the right side or the Veteran's complaints of pain and discomfort to his right side over the years, they are not able to diagnose those symptoms as arthritis or other hip disability, or the early onset of a hip condition. Similarly, although the Veteran is capable of saying that he suffered from pain in the area of his right hip since service, the Board finds that arthritis is not the type of disability that a lay person is capable of linking to service either by way of continuity of symptomatology or nexus to service. The Board would like to further note at this point that the evidence of record only reveals a diagnosis of mild arthritis of the right hip, and that the other findings noted on X-rays in October 2004 have not been specifically documented ever since or during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). Consequently, with respect to a claim that the Veteran's right hip arthritis had its onset during service or to a period of one year following service, there must be competent medical evidence linking such a disorder to service, and the record does not contain any such evidence. In fact, the most probative and persuasive opinion that addresses this aspect of the claim is against such a relationship. More specifically, after a review of the evidence of record, the January 2013 examiner concluded that the Veteran's arthritis of the right hip was not representative of an isolated injury to the right hip as demonstrated by its bilateral nature and the fact that it was not manifested by greater disability than the left hip. In fact, this examiner further opined that when referring to his right hip pain, the Veteran was actually pointing to the area of the right buttock, which the examiner believed was related to the Veteran's recently service-connected back disorder. Although the Board recognizes that the record also contains the private medical opinion of Dr. S., who opined that the Veteran right hip problem could have been related to the original injury in service, such a speculative opinion is of little evidentiary value, especially when unaccompanied by an expressed rationale. The Board would further note that to the extent the Veteran's representative has argued that the October 2004 X-ray findings support the conclusion that service connection for a right hip disorder is warranted, the Board does not agree. More specifically, in closely examining the results of these X-rays, the Board notes that the examiner did not conclude that there was more arthritis in the right hip in comparison to the left. Instead, it was noted that there was more narrowing noted on the right than the left. In addition, the January 2013 VA examiner considered this proposition and rejected it, concluding that the evidence of record was not sufficient to support the conclusion that there was any greater manifestation of disability in the right hip than the left hip, and there is no other opinion of record that squarely contradicts the opinion of the January 2013 VA examiner in this regard. The Board additionally observes that an intervening X-ray in February 2006 also only reveals DJD and that it is bilateral in nature. In summary, based on all of the foregoing, the Board finds that a preponderance of the evidence is against the claim for service connection for right hip arthritis or another isolated disorder of the right hip, either as directly related to service or based on its onset during one year following the Veteran's discharge from service. ORDER Entitlement to service connection for a right hip disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs