Citation Nr: 1329497 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-23 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1984, with an Honorable characterization of service, and from September 1984 to September 1986, with an Other than Honorable characterization of service. The matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that the RO, in an April 2007 memorandum, found that the Veteran's period of service from September 1984 to September 1986 was not qualifying service for VA rating purposes due to an Other than Honorable discharge based on willful and persistent misconduct, i.e., being AWOL from February to July 1986. Although the Veteran has provided statements regarding the characterization of this service and relationship of his claimed disabilities to a May 1986 motorcycle accident during the second period of service, the Veteran's SOC and subsequent VA Form 9 reflect that the present issue on appeal relates to service connection and not a dispute regarding character of service. As such, the Board finds that only the issue of service connection is properly on appeal and only the period of service from September 1981 to September 1984 may be considered for adjudication of this claim. In his substantive appeal, the Veteran requested a Board hearing at the RO. Although, initially scheduled for a hearing on January 17, 2013, the Veteran requested and was granted a postponement in January 2013. While he was rescheduled for a hearing in May 2013, he failed to report. Although the Veteran submitted another request for a videoconference hearing in September 2013, as he has failed to provide good cause for not reporting for hearing scheduled in May 2013, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). In May 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). 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 that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A preponderance of the evidence is against a finding that the Veteran's right hip disability is a result of an injury or disease associated with his active service. CONCLUSION OF LAW A right hip disability was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (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 August 200, 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, and post-service private treatment records 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 July 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). Service connection for arthritis may also be established by evidence showing chronicity and a continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The provisions of 38 C.F.R. § 3.303(b) provide that with chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When a disease identity such as arthritis is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the disorder noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Additionally, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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). Background The Veteran contends that his claimed right hip disability is related to service. A review of the Veteran's service treatment record shows that the on December 15, 1982 the Veteran was treated for right hip pain. The Veteran reported that he injured his hip playing basketball the day before. The examiner noted swelling and tenderness to touch. The Veteran had positive range of motion and walked restrictedly. The examiner diagnosed a bruised hip and prescribed heat three times a day and Ben Gay as directed. No further complaints or treatment for a right hip condition were seen in subsequent service treatment records. The Board acknowledges that legal documents dated October 1986 show that the Veteran was involved in an accident on May 1986; however, this incident is not given consideration as it falls within the period of the Veteran's unqualifying service. Post-service private treatment records dated January 2004 show that the Veteran was seen for a dislocated right total hip arthroplasty. Treatment history revealed the Veteran had a total hip arthroplasty approximately five to six years prior. The examiner noted that this was the result of a motor vehicle accident and that the Veteran had multiple surgeries and eventually ended up with a right hip replacement. The Veteran was diagnosed with degenerative joint disease status post revision right hip. The Veteran was afforded a VA examination in July 2013. The Veteran reported that he continues to have symptoms in his right hip. The Veteran reported that he had several episodes where the hip popped out of joint. He reported that this had occurred three times since the replacement, with the last time in 2005. The examiner diagnosed degenerative joint disease post status arthroplasty. The examiner concluded that it was at less likely than not that the Veteran's right hip disability was incurred in or caused by the claimed in-service injury. The examiner explained that a review of the claims filed revealed a clinic visit on December 15, 1982 for a bruised hip which was treated with heat and Ben Gay. The examiner noted that there were no other clinic visits for the right hip conditions seen. The examiner opined that the Veteran's right hip disability was not related to service due to the dates of medical evidence given. Analysis As an initial matter, the Board finds that presumptive service connection does not apply since the record contains no evidence confirming that any arthritis of the right hip was manifested to 10 percent or more within one year from the date of the Veteran's separation from service. On a direct basis for service connection, the Board finds that the Veteran currently has a right hip disability, diagnosed as degenerative joint disease post-status arthroplasty. The Board also finds that the Veteran suffered an in-service injury of a bruised right hip. As such, the only element missing to support a finding of service connection is a medical nexus between the Veteran's in-service bruised right hip and his current right hip disability. The Board notes that at no time did any of the Veteran's treating providers relate the Veteran's in-service bruised right hip to his current right hip disability. The July 2013 VA examiner acknowledged that the Veteran suffered from degenerative joint disease but concluded that it was not related to his in-service injury because there was no other clinic visits for a right hip condition and due to the dates of the medical evidence. The Board acknowledges the Veteran's contentions that his current right hip disability is related to the May 1986 motorcycle accident. However, as stated, such service has been found to be unqualifying and, thus, unable to be considered. The Board notes that the Veteran has not asserted that his current right hip disability is related to his in-service bruised right hip. However, if the Veteran did make that assertion, it is now well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise, such as the diagnosis or etiology of musculoskeletal disabilities. 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 symptoms the Veteran reportedly experienced in service or following service are in any way related to his current right hip disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, any assertions by the Veteran regarding the onset and etiology of his current right hip disability is not competent medical evidence and are afforded little probative value. As discussed, in concluding that the Veteran's current right his disability is not related to service, the July 2013 VA examiner reviewed the Veteran's available military records as well as the Veteran's entire medical history. The examiner concluded that the after the December 12, 1982 clinical report the Veteran did not seek treatment again for a right hip condition in-service. As stated, service treatment record shows that the on December 15, 1982 the Veteran was treated for right hip pain. No further complaints or treatment for a right hip condition were seen in subsequent service treatment records. As the examiner's conclusions are fully explained and consistent with the evidence of record the Board assigns them great probative weight. In sum, the Board finds that the most competent and probative evidence fails to link the Veteran's current right hip disability to service. Accordingly, service connection for a right hip disability is not warranted on any basis. See 38 C.F.R. §§ 3.303, 3.310(a) (2012). In reaching the conclusion 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 claims, 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 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs