Citation Nr: 1327885	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  12-04 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for a right hip disability, secondary to service-connected subtalar arthrodesis of the right foot.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Devon Rembert-Carroll, Associate Counsel

INTRODUCTION

The Veteran had active service in the Navy from January 1956 to March 1959.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in part, denied service connection for a right hip disability, secondary to service-connected subtalar arthrodesis of the right foot.  

In July 2012, the Veteran, along with his wife, testified before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record and associated with the claims file.  

In February 2013, the Board remanded the claim for additional development.  The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review.  Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for a right knee disability, secondary to service-connected subtalar arthrodesis of the right foot.  During the pendency of the appeal, the RO, in an April 2013 rating decision, granted service connection for right knee patellofemoral at a noncompensable rating effective February 24, 2009.  This grant of service connection is considered a full grant of the benefits on appeal for the service connection for a right knee disability, secondary to service-connected subtalar arthrodesis of the right foot claim.  As such, the claim of entitlement to service connection for a right knee disability, secondary to service-connected subtalar arthrodesis of the right foot is no longer before the Board.  See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals VA treatment records dated March 2011 to April 2013.  The other documents in the file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

No right hip disability, claimed as secondary to service-connected subtalar arthrodesis of the right foot, is currently demonstrated.  


CONCLUSION OF LAW

The criteria for a grant of service connection for a right hip disorder, to include as, secondary to service-connected subtalar arthrodesis of the right foot, are not meet.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  These notice requirements were accomplished in a letter sent in March 2009 prior to the initial rating decision.  This letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). 
VA also has a duty to assist the Veteran in the development of a claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Here, the Veteran's statements, his service treatment records, post-service VA and private treatment records, and a July 2012 Board hearing transcript have been associated with the claims folder.  Additionally, the Veteran has not identified any outstanding records that have not been requested or obtained.  

The Veteran was provided with a VA examination in March 2013.  The Board finds that the VA examination report was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history and lay statements, and described the Veteran's right hip in sufficient detail so that the Board's evaluation is an informed determination.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board thus finds that all necessary development has been accomplished and appellate review may proceed.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Legal Criteria

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  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) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

A disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a) (2012).  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease.  Allen v. Brown, 7 Vet. App. 439 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b). 

Analysis

The Veteran contends that he has a right hip disability caused or aggravated by his service-connected subtalar arthrodesis of the right foot.  At his July 2012 Board hearing, the Veteran reported that his right hip began bothering him three to four years prior.  The Veteran also reported that he walked with an altered gait.   

Post-service VA treatment records show that the Veteran has reported, and has been treated for pain in his right hip. It has neither been contended or shown that the Veteran has a right hip disability related to his period of active service.

The Veteran was afforded a VA examination in March 2013.  The Veteran reported that his feet have caused him to limp for probably 15-20 years.  The VA examiner concluded that the Veteran did not have a right hip problem.  The examiner stated that the when the Veteran said he had pain in his right hip he was really talking about the low back and the right buttock.  On physical examination both of the Veteran's hips were found to be normal without pain in the joint or groin.  X-rays of both hips showed no significant degenerative changes in the Veteran's right hip and mild degenerative changes in his left hip, which was noted as asymptomatic.  The examiner opined that it was at least as likely as not that the Veteran's current back condition manifested by pain in the right buttock, claimed as a right hip disability, was aggravated beyond the natural progression by his service connected right foot disability.  

The Board acknowledges the Veteran's assertions that he has a right hip disability that is related to his service-connected right foot disability.  The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's claimed right disability is etiologically related to the Veteran's service-connected right foot disability falls outside the realm of common knowledge of a lay person.  In this regard, while the Veteran can competently report the onset and symptoms of hip pain, any actual diagnosis of a right hip disability requires objective testing to diagnose, and can have many causes.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Whether the right hip pain the Veteran experienced is in any way related to any right hip disability requires medical expertise to determine because it involves a complex medical matter.  To the extent that the Veteran himself believes that he has a current right hip disability that is due to his service-connected right foot disability, as a lay person, he is not shown to possess any specialized training in the medical field.  Therefore, the Veteran's opinion as to the etiology of his right hip disability is not competent evidence.  Id.  As such the Veteran's assertions carry little probative weight.

The Board notes that in concluding that the Veteran's right hip pain was a manifestation of a low back disability, the March 2013 VA examiner conducted a physical examination of the Veteran and reviewed x-rays of the Veteran's hips.  The VA examiner, an orthopedic staff physician, provided a reasoned rationale and took into consideration the Veteran's medical history and lay statements.  The Board assigns great probative value to the VA examiner's report and thus finds that the competent and credible medical evidence of record shows that the complained right hip pain for which the Veteran seeks service connection is actually right buttock pain that is related to his now service connected degenerative joint disease of the lumbar spine with spinal stenosis, claimed as a right hip disability.  Accordingly, service connection for a separate right hip disability, secondary to service-connected subtalar arthrodesis of the right foot, is not warranted.  

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to service connection for a right hip disability, claimed as secondary to service-connected subtalar arthrodesis of the right foot, is denied



____________________________________________
WAYNE. M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs