Citation Nr: 1329737 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 12-34 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disability, to include degenerative joint disease. 2. Entitlement to service connection for a right hip disability, to include degenerative joint disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to January 1984. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. Since the February 2007 RO decision became final, evidence not cumulative or redundant of evidence previously of record, has been added to the record that relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a right hip disability and raises a reasonable possibility of substantiating that claim. 2. A right hip disability did not have onset during the Veteran's active service and is not etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material has been presented to reopen the claim of entitlement to service connection for a right hip disability with degenerative joint disease. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for a right hip disability with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307(a), 3.309(a), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As the Board's decision to reopen the claim of service connection for a right hip disability with degenerative joint disease is favorable to the Veteran, no further action is required to comply with the VCAA with respect to the issue of new and material evidence. Regarding the issue of entitlement to service connection for a right hip disability with degenerative joint disease, VA, as discussed below, complied with both the duty to notify and the duty to assist. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist requires VA to help claimants develop their claims: (1) by obtaining evidence such as treatment records and other relevant evidence; and (2) by providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in November 2006, before the RO adjudicated his claim, that notified him of the information detailed above. In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims by: (1) obtaining evidence such as treatment records and other relevant evidence; and (2) providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's service and VA treatment records. VA also provided the Veteran with VA examinations of his hips in October 2007, April 2010, and December 2010 and obtained a VA medical opinion regarding his right hip in February 2013, all of which are of record. As will be explained in more detail in the merits section below, the medical evidence of record is adequate. The Veteran does not identify and the record does not indicate any additional pertinent evidence that is necessary to fairly adjudicate the claim. Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim In a February 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a right hip injury with degenerative joint disease. The Veteran did not complete an appeal of the decision, and the February 2007 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2003). In June 2010, the Veteran sought to re-open the claim and, in support, submitted new evidence. The RO re-opened the claim, but again denied entitlement to service connection. Decisions of an agency of original jurisdiction or of the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is in 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis (degenerative joint disease), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2012). The secondary condition shall be considered a part of the original condition. Id. The phrase "due to or the result of" encompasses a disability caused by or aggravated by the service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439 (1995). Here, the RO denied the Veteran's right hip claim in February 2007 because it found no evidence that the hip condition occurred in or was caused by service or that a hip condition had ever been diagnosed. The new evidence added to the record after that rating decision became final includes a report of a radiological examination taken of the Veteran's hips that revealed the following impressions: (1) tiny spur left acetabulum; (2) tiny ossification right acetabulum ununited ossicle versus old avulsive fragment. The Board finds that this evidence is new because it has not been previously submitted and that it is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim. The Boards finds that it is material because it relates to an unestablished fact necessary to substantiate the claim, i.e., it tends to prove that the Veteran might have a current hip disability, and it raises a reasonable possibility of substantiating the claim. For these reasons, the Veteran's claim of service connection for a right hip disability with degenerative joint disease is reopened. See Shade v. Shinseki, 24 Vet App. 110, 120 (2010) (stating that 38 C.F.R. § 3.159(c)(4) "does not require new and material evidence as to each previously unproven element of a claim."). Having reopened the claim, the Board now turns to the merits of the claim. In deciding the claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). A treatment note in the STRs indicates that the Veteran incurred a "right hip injury secondary to playing basketball," but that he had no trauma to the hip during the game. The evidence shows that no hip disorder or condition was diagnosed in service. VA afforded the Veteran an examination of his hips in October 2007. The Veteran complained of bilateral hip pain, which he rated a "7" on a 1/10 scale. He also complained of fatigability and lack of endurance of both hips. The examiner found no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement or guarding on movement. The Veteran's gait was normal. There were no functional limitations on standing and walking. No callosities, breakdown, or unusual shoe-wear pattern that would indicate abnormal weightbearing. There was no ankylosing in the joints or evidence of inflammatory arthritis. The October 2007 examiner opined that the Veteran's hip pain was not caused by or secondary to any injury incurred in military service. The examiner reasoned that the Veteran had not been diagnosed with any chronic or recurrent hip condition and that his hip pain was likely related to a lumbar spine condition, which, the examiner determined, was related to age-related degenerative arthritis of the lumbar spine. The radiology report of the x-ray taken as part of the October 2007 examination noted that "[t]here are tiny ossicles at the superior acetabula, likely congenital/developmental. No significant osseous, joint or soft tissue abnormality is identified. The bony pelvis appears to be intact. There are probable transitional changes of sacrum." Moreover, the report noted the following impression: "[n]o significant degenerative changes of the right or left hips. Probable congenital ossicles at the superior acetabula." The primary diagnostic code was "minor abnormality." In April 2010, the Veteran was provided another VA examination. The Radiology report of that examination of the right hip and pelvis notes that the following was found: Tiny marginal spur at the left acetabulum superiorly laterally. There is [a] tiny well corticated ossification at the right acetabulum superiority laterally most likely a normal variant ununited ossification center. In the correct clinical setting a tiny avulsed fragment is also a possibility. Normal variant accessory articulations in the mid sacrum. Otherwise no significant osseous or articular findings right hip/pelvis. Impression: (1) tiny spur left acetabulum; (2) tiny ossification right acetabulum ununited ossicle versus old avulsive fragment. An April 2010 VA treatment note, dated two days before the April 2010 examination, reveals that the Veteran reported that he had chronic right hip pain and that the pain worsened that week. The Veteran rated the pain a "10" on a 1/10 scale. At the December 2010 examination, the Veteran reported that at the end of June 2010 was when the pain "got bad." He reported constant daily pain. At this examination, he also rated the pain a 10 on a 1/10 scale. The examiner noted that the Veteran reported "radiating pain from the back of the right hip down to the posterior leg to the knee where it continue[d] down the anterior left and onto the dorsum of the second and third toes of the right leg." Besides pain, the Veteran had no symptoms in his hip. The report provided the following summary regarding symptoms: no deformity, no giving way, no instability, no stiffness, no weakness, no incoordination, no decreased speed of joint motion, no episodes of dislocation or subluxation, no episodes of locking, no effusions, no symptoms of inflammation, and no flare-ups of joint disease. The Veteran's hip was also noted not to affect the motion of the joint. In addition, the examiner found no ankylosis. As to the hip's range of motion, the examiner noted that there was no objective evidence of pain with active motion on either the left side or right side. The examiner further noted no objective evidence of pain after repetitive motion or additional limitations after three repetitions of range of motion. The examiner stated she found no evidence that the Veteran had any recurrent or chronic hip pain between 1985 and 2007. She further stated that the Veteran's left hip x-ray actually shows a spur more suspect for degenerative disease than the right hip." In a statement in support of the claim, the Veteran quoted the following language from the April 2010 examination: "tiny ossification right acetabulum ununited ossicle versus old avulsive fragment." Further, he noted the following definition of avulsive fragment: "when a fragment of bone tears away from the main mass bone as a result of physical trauma." The Veteran stated that "this would be consistent with the [April 1980] injury shown on active duty resulting from a fall playing basketball." The Veteran further stated that he has not had any other injuries to his hip since his discharge from service and that the aging process has worsened and hastened his condition. In February 2013, VA obtained an expert medical opinion to determine whether the Veteran's "tiny spur left acetabulum and/or tiny ossification right acetabulum united ossicle versus old avulsion fragment" were at least as likely as not incurred in or caused by the right hip injury of April 1980. The examiner opined that it was less likely than not. The examiner explained that the STR entry of April 1980 noted that the "Veteran had trauma to the right lumbosacral area which is not a hip disorder." The Board finds that the medical examinations of October 2007 and December 2010 to be adequate. The examination reports show that VA examiners reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history from him, and administered the appropriate tests. The Board also finds the April 2010 examination to be adequate as its report reveals that the examiner interviewed and examined the Veteran and took x-rays of the Veteran's hips. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate). Additionally, the Board finds the February 2013 opinion to be adequate. The opinion, which was provided by the examiner who conducted the December 2010 examination, indicates the she reviewed the Veteran's claims file and supported her opinion with an analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In deciding the Veteran's claim, the Board has considered all the evidence of record and concludes that the preponderance of the evidence is against a claim. The Board finds the VA examinations to be highly probative on the issue in question. Taken together, the examinations show that the Veteran does not have a right hip disability that is etiologically related to service. For example, as noted above, the October 2007 examiner found that the Veteran had not been diagnosed with any chronic or recurrent hip condition and that his hip pain was likely related to age-related degenerative arthritis of the lumbar spine. Moreover, the examiner found no significant degenerative changes of the hips and determined that the tiny ossicles at the superior acetabula that were shown in the x-rays were likely congenital/developmental. The April 2010 examiner stated that the tiny well corticated ossification at the right acetabulum superiority laterally found in x-rays was most likely a normal variant. The report of the December 2010, and most recent, examination shows that the Veteran had no symptoms regarding his hip, except for pain. Moreover, according to the February 2013 opinion, "the tiny spur left acetabulum and/or tiny ossification right acetabulum united ossicle versus old avulsion fragment" is less likely than not related to the April 1980 hip injury because, as the expert pointed out, the STR note of April 1980 shows that the Veteran had trauma to the right lumbar sacral area. Indeed, the STR note states that the Veteran suffered no trauma to the hip. As to the Veteran's statement that the "tiny ossification right acetabulum ununited ossicle versus old avulsive fragment" is consistent with the April 1980 injury, the Board finds that he is not competent to make that determination because those are matters requiring medical expertise and the evidence does not show that the Veteran has any such expertise. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Whether a layperson is competent to provide a nexus opinion depends on the complexity of the case). Rather, the competent and credible medical evidence is to the contrary. The medical evidence and opinion do not indicate that the X-ray findings of the hip are responsible for any of the Veteran's right hip pain. Indeed, as discussed above, the medical evidence indicates that the cause of any right hip pain probably emanates from the non-service connected lumbosacral spine disability. Aside from complaints of pain, there is no other symptom or limitation of function of the right hip that is associated with a actual disability of the right hip. The "normal variant" seen on X-ray is not a disability that can be service-connected under VA's laws and regulations, particularly in light if the evidence indicating that it was not causing any symptoms. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Concerning the Veteran's complaints of pain, which are of record, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). At best, for the reasons discussed above, the Veteran's claimed right hip pain appears to be due to factors other than an actual malady affecting the right hip, such as a non-service connected lumbosacral spine disability. For all the foregoing reasons, the Board concludes that the criteria for service connection for a right hip disability with degenerative joint disease have not been met. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER New and material evidence to reopen a claim of entitlement to service connection for a right hip disability with degenerative joint disease has been received; to this extent, the appeal is granted. Entitlement to service connection for a right hip disability with degenerative joint disease is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs