Citation Nr: 1329258 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-33 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1983 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. In February 2011 the Board remanded the matter for additional development. An April 2010 communication from the Veteran appears to seek to reopen a claim of service connection for a left shoulder disability. Since the claim to reopen has not been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction in the matter; it is referred to the RO for appropriate action. FINDING OF FACT It is not shown that the Veteran sustained a right hip injury in service; a right hip disability was not manifested in service, and any current right hip disability is not shown to be related to the Veteran's service. CONCLUSION OF LAW Service connection for a right hip disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of her claim prior to its initial adjudication. A March 2007 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. During the May 2010 hearing, the Veteran was advised, and expressed an awareness, of what remains needed to substantiate her claim. She has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and post- service treatment records have been secured. At the May 2010 hearing, the Veteran indicated that she had been receiving treatment, including X-rays, for her right hip at McGuire VA Medical Center (VAMC) since approximately 2002 or 2003. The RO requested and received the Veteran's complete treatment record from the Richmond (McGuire) VAMC. Those records are dated from August 2009 through February 2012. There are no records from that facility dated prior to August 2009. The Veteran was examined by VA for her right hip disability in March 2011. The examination is adequate as it includes sufficient information to make the dispositive finding of fact. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board finds there has been substantial compliance with the February 2011 remand instructions; and that no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a claim of service connection, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, and in Virtual VA (VA's electronic data storage system (where no additional relevant evidence was found), with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-91 (Fed. Cir. 2000). Accordingly, the Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran contends that she injured her right hip during service when she fell and tried to break her fall. A review of her STRs found a March 1990 report indicating that she fell with her arms outstretched and was receiving treatment for a dislocated left shoulder. Postservice, the record shows that on April 2007 VA examination of the Veteran (for bilateral foot disorder) it was noted that there was no history or complaints of a right hip disorder as reported by the Veteran. On October 2008 VA examination (for a low back disorder), the Veteran stated that her right hip became stiff with prolonged sitting or standing. VA treatment records beginning in August 2009 show complaints and assessments of right hip pain. A September 2010 electrodiagnostic examination report notes the Veteran had right hip pain, which she stated does not "bother her much." A December 2010 VA outpatient primary care attending note shows medication (Capsaicin .025% cream) was prescribed for hip pain. These records are silent regarding the etiology of the right hip disorder. At the May 2010 Travel Board hearing, the Veteran denied receiving any treatment for her right hip in service following the injury described, but reported that she had right hip pain during service and has had pain since her separation from active duty. She testified that a doctor told her that her hip disability could be associated with her feet. In addition, she indicated that she had been receiving treatment, including X-rays, for her right hip at a VAMC since approximately 2002 or 2003. On March 2011 VA examination, the Veteran reported that she had right hip pain since service (when she fell and dislocated her left shoulder). She stated that when she fell, she landed on her right hip in addition to injuring the left shoulder. She was treated for a shoulder injury at that time. The right hip pain started hurting a few days later and intermittently during physical training or periods of prolonged walking or standing. She stated that she never sought medical evaluation for right hip pain during service. After service she worked as a stock person stocking shelves. Her right hip would hurt when she stood all day, or when she lifted or bent to put items on the shelf. She also noted right hip pain when she would lay on her right side. X-rays of the right femur revealed no acute findings. The diagnosis was right hip strain (with associated right hip pain). It is not in dispute that the Veteran now has a right hip disability (right hip strain). Such disability has been diagnosed and treated, by VA, since at least 2010. However, a right hip disability was not documented or treated in service; and the Veteran does not allege otherwise. In fact, she claims she was treated for a right hip disorder after service initially in 2002 or 2003 (at least 10 years after service). Hence, service connection for such disability on the basis that it became manifest in service and has persisted, is not warranted. What remains for consideration is whether the Veteran's right hip disability may somehow otherwise be related to her service. To the extent she seeks to establish that she sustained a right hip injury during service by her own accounts, the Board finds those accounts not credible. First of all, they are self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Second, they are not credible. When she fell in service in 1990, she did not report a right hip injury. After the fall, she complained of a dislocated left shoulder, which was treated. She served on active duty for more than 21/2 years after the fall (with left shoulder injury) and STRs during that period are silent for any complaints, treatment or diagnosis of a right hip disorder. The first postservice notation of a right hip injury was in 2008 (more than 15 years after service), which of itself is a factor weighing against a finding of service connection for right hip disability. There is no competent evidence of record that shows or suggests that the Veteran's right hip disability may be related to her service. Without any competent evidence of a nexus between the Veteran's right hip disability and her service, the preponderance of the evidence is against the claim. The Veteran has suggested that her right hip disability may be due to her service-connected bilateral foot disability. At the May 2010 hearing she reported that her doctors told her that her right hip disorder could be related to her feet. However, VA treatment records are silent for such a nexus. The United States Court of Appeals for Veterans Claims (Court) has held that a layperson's account of what a physician purportedly said is too attenuated and inherently unreliable to constitute medical (and competent) evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). As the preponderance of the evidence is against this claim; there is no doubt remaining to be resolved. Hence, service connection for a right hip disability is not warranted. See Gilbert, 1 Vet. App. 49, 53-56. ORDER Service connection for a right hip disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs