Citation Nr: 1330062 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-35 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left hip disorder, including as secondary to service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. 2. Entitlement to service connection for a right hip disorder, including as secondary to service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from October 1990 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that reopened, but denied claims for service connection for left and right hip disorders. In May 2011, the Board reopened and remanded these claims to the RO for additional development. A review of the Virtual VA paperless claims processing system (Virtual VA) reveals no other pertinent documents for consideration in support of these claims. FINDINGS OF FACT 1. A left hip disorder is not related to the Veteran's active service or service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. 2. Arthritis of the left hip did not manifest to a compensable degree within a year of the Veteran's discharge from active service. 3. A right hip disorder is not related to the Veteran's active service or service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. 4. Arthritis of the right hip did not manifest to a compensable degree within a year of the Veteran's discharge from active service. CONCLUSIONS OF LAW 1. A left hip disorder was not incurred in or aggravated by service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. A right hip disorder was not incurred in or aggravated by service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and her representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO provided the Veteran VCAA notice on her claims by way of a letter dated in July 2005, prior to the April 2006 initial adjudication of her claim by the RO. Therein, the RO acknowledged the Veteran's claims, notified her of the evidence needed to substantiate them (on a direct basis), identified the type of evidence that would best do so, notified her of VA's duty to assist and indicated it was developing her claims pursuant to this duty. Although this letter did not provide notice as to the matter of secondary service connection, this is nonprejudical because review of the evidence of record indicates that she has actual knowledge of the evidence that is necessary to substantiate her claim. In particular, her representative argued in March 2013 that the evidence of record was sufficient to form a nexus between the treatment of her bilateral hip disability and her military service and/or her service-connected disabilities. An August 2006 RO letter also explained in general the evidence that is necessary to substantiate a claim for secondary service connection, albeit for a different disability. The RO also provided the Veteran all necessary information on disability ratings and effective dates in the event service connection is granted, by letter dated July 2006. The claims were readjudicated in a May 2012 supplemental statement of the case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice deficiency along the way. Neither she nor her representative asserts that VA failed to comply with VCAA's notice provisions. B. Duty to Assist VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording her a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012). In this case, the RO obtained all available service records and post-service VA and private treatment records, afforded the Veteran VA examinations, and obtained a VHA opinion discussing the etiology of the claimed disabilities. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran does not assert that there is any outstanding evidence that needs to be obtained in support of these claims or that the VA examination reports and VHA opinion, read collectively, are inadequate to decide these claims. Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate her claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). II. Analysis The Veteran seeks grants of service connection for right and left hip disorders on the bases that these disorders are related to continuously manifesting bilateral hip pain she began to experience in service, or alternatively, developed secondary to (were caused or aggravated by) service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain. According to a written statement submitted in November 2004, the Veteran sustained injuries to her lower legs during active duty, causing joint pain from her hips down to her feet, swelling and fluid build-up and necessitating surgery, physical therapy and water aerobics. Allegedly, she was not diagnosed with arthritis until six months after discharge from service. She contends that, since service, she has endured constant joint pain, swelling, tenderness, fluid retention from the hips to the feet, undergone additional physical therapy and also electronic shock treatment for her hips, taken steroids and other medication and used a TENS unit for the pain and inflammation. According to a medical history she reported during a January 2003 VA examination, her bilateral hip pain initially manifested in 1999, which is after service, possibly within a year of discharge. She and her representative request that the Board grant these claims pursuant to 38 C.F.R. § 3.102 on the basis that the evidence in each case is in relative equipoise. The Board acknowledges the Veteran's statements of record, but considering them in conjunction with all of the medical information of record, finds that the preponderance of the evidence is against a grant of service connection for left and right hip disorders on any basis. As discussed below, these disorders are not related to the Veteran's active service or a service-connected disability, including via aggravation, and did not manifest to a compensable degree within a year of her discharge from active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Certain diseases are considered chronic, per se, such as arthritis. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. 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 diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a chronic disease is at issue, such as arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection may 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) (2012). Service connection may be presumed for chronic disease such as arthritis if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In this case, post-service medical documents, including VA treatment records dated since the Veteran filed her claims, reports of VA examinations conducted in January 2003 and October 2011, and a VHA medical opinion dated May 2013, confirm that the Veteran currently has left and right hips disorders diagnosed as bursitis and degenerative joint disease. The question thus becomes whether, as alleged, these disorders, however diagnosed, were incurred in active service or caused or aggravated by a service-connected disability. The Veteran was not diagnosed with a left or right hip diagnosis during active service. Her service treatment records are negative for complaints or findings pertaining to the hips. She did, however, receive treatment for lower extremity complaints, including affecting the feet, shins, knees and ankles, and was discharged based on the shin splints. Consequently, she is now service connected for cold injuries of both feet and left and right shin splints with knee and ankle pain. According to post-service treatment records, the Veteran did not report or seek treatment for hip complaints until approximately three years after her June 1998 discharge from active service. During a routine visit in April 2001, the Veteran did not mention her hips, but a nurse practitioner assessed her with pain in her joints chronically. X-rays of the hips taken in June 2001 revealed minimal degenerative joint disease (DJD). In July 2001, an examiner noted tenderness in the trochanteric bursa area and diagnosed bursitis and DJD. Since then, the Veteran has received intermittent VA and private treatment, including physical therapy, for hip complaints, primarily pain, diagnosed as noted above and in 2002 as fibromyalgia. Multiple medical professionals have addressed whether the Veteran's hip disorders are related to her active service or service-connected disabilities and none has provided a favorable opinion. In January 2003, without being privy to the claims file, a VA examiner ruled out a relationship between the hip disorders and the service-connected leg and foot disabilities on the basis that the Veteran had vague complaints not supported by laboratory or imaging findings (x-rays of the hips were normal). In support of a prior claim, the Veteran challenged the adequacy of this opinion on the basis that it was not based on a complete review of the claims file. An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Indeed, in this case the VA examiner's opinion is inadequate as it did not contemplate VA treatment records dated prior to 2003, constructively in VA's possession, which included diagnoses of bilateral hip disorders and x-rays showing bilateral hip abnormalities. In October 2011, another VA examiner ruled out a relationship between the Veteran's hip disorders and the Veteran's service on the bases that: (i) The service treatment records are silent for hip symptoms or conditions, (ii) There is no report of significant trauma or injuries to the hips during service; (iii) The Veteran was on running profiles during service due to other conditions and these profiles minimized her risk of traumatic injuries to the hip joints; (iv) The separation physical is silent for hip symptoms or condition; and (v) It was not until a few years after service that she started having symptoms and was found to have arthritis and this corresponded with a finding of morbid obesity, a condition that is a risk factor for arthritis. The VA examiner also ruled out a relationship between the Veteran's hip disorders and service-connected foot disabilities on the bases that: (i) The location of the cold residuals is at the very distal extremities, specifically the feet, not the hips; and (ii) Arthritis from cold exposure does not travel or spread and affects the initial locations of the exposure only. The Veteran does not challenge the adequacy of the October 2011 opinion. In August 2012, on request of the Board, a VA orthopedist provided an opinion on the etiology of the Veteran's hip disorders. He ruled out a relationship between these disorders and the Veteran's active service and service-connected disabilities on the following bases: (i) She had no hip trauma in service or cumulative trauma or repetitive overuse injury that could explain her symptoms (she was an administrative specialist, a position that does not cause significant stress on the hips); (ii) Medical literature does not support that routine basic training and physical training, as required by military recruits, lead to significant wear and tear disease or osteoarthritis of the hips; (iii) Pain or service-connected problems in the feet or ankles would not lead to arthritis in the hip joint, but rather, would be protective of such joint in terms of aggravation/acceleration of osteoarthritis or DJD (due to a reduction in activity and weight bearing); (iv) Medical literature does not support the public's erroneous conception that a knee or ankle problem may lead to a gait disturbance, which in turn may lead to hip or back arthritis, or a finding that leg/feet/knee or ankle residuals caused or accelerated the osteoarthritis in the Veteran's hips; (v) Although the link between osteoarthritis and obesity is strong with regard to knee joints, there is also some evidence linking obesity to osteoarthritis in other joints, including the hip; (vi) The Veteran's only risk factor for developing osteoarthritis in the hips is her obesity; and (vii) Given her young age at presentation, there is presumably a genetic component involved, but this is speculative without documentation of a clear family history of DJD. The Veteran does not challenge the adequacy of this VHA opinion, nor has she submitted a medical opinion refuting those of the VA examiner and orthopedist. Her assertions thus represent the only evidence of record suggesting that her hip disorders are related to her active service or service-connected disabilities. The Veteran is competent to report that she experienced hip pain during and since service as such pain is lay observable. The Board does not, however, find her report in this regard credible. Initially, in 2003, she reported that such pain began to manifest after service, in 1999. However, after a VA examiner provided an unfavorable opinion based on the absence of hip symptoms during service, she reported not only that the pain initially manifested during service, but that she sustained hip injuries therein. Even assuming the credibility of the Veteran's assertions, given that she has no special training or expertise in medicine, she is not competent to attribute her pain to a diagnosis or to find that her hip disorders were caused or aggravated by service or a service-connected disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1336; Barr, 21 Vet. App. at 303; Davidson v. Shinseki, 581 F.3d at 1313. The Board finds that the Veteran's left and right hip disorders are not related to her active service or a service-connected disability. The Board also finds that arthritis of the hips did not manifest within a year of her discharge from active service. In light of these findings, the Board concludes that left and right hip disorders were not incurred in or aggravated by active service, may not be presumed to have been so incurred, and are not proximately due to or the result of, or aggravated by, a service-connected disability. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With regard to each of these claims, the evidence is not in relative equipoise. The benefit-of-the-doubt rule is thus not applicable. ORDER Service connection for a left hip disorder, including as secondary to service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain, is denied. Service connection for a right hip disorder, including as secondary to service-connected cold injuries of both feet and left and right shin splints with knee and ankle pain, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs