Citation Nr: 1331145 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-15 537A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected lumbosacral spine disability. 2. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected lumbosacral spine disability. 3. Entitlement to an effective date prior to September 8, 2011, for the grant of entitlement to service connection for post operative scar on back as secondary to service-connected lumbosacral spine intervertebral disc syndrome with degenerative joint disease; post-op. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 1966 to June 1970 and from October 1976 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In pertinent part, the rating decision denied entitlement to service connection for right and left hip conditions. In July 2013, the Veteran testified before the undersigned in a Travel Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims file. The record reflects that after the final supplemental statement of the case (SSOC) the Veteran submitted additional relevant evidence to the Board. No subsequent supplemental statement of the case (SSOC) was issued, but this is not necessary because the evidence was accompanied by a waiver of initial review by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2013). The issues of clear and unmistakable error (CUE) in the March 2009 rating decision with respect to the effective dates assigned for the grant of entitlement to service connection for a lumbosacral spine disability, right and left lower extremity radiculopathy, gastroesophageal reflux disease (GERD), tinnitus, and hearing loss, and CUE with respect to the failure to award a 20 percent rating for right and left lower extremity radiculopathy have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). In that regard, the Veteran asserts that the effective date assigned should be October 25, 2005 for each of these claims. Essentially, the Veteran requests an effective date of the date of claim, which he contends was October 25, 2005, rather than January 3, 2006, as found in the March 2009 rating decision. The Board notes that a letter dated November 25, 2005 from the Seattle RO acknowledging the filing of the above claims certainly supports the Veteran's assertions that the claim was received by VA prior to January 3, 2006. The Board concedes that the Veteran never specifically phrased his claims in terms of whether there was clear and unmistakable error in the March 2009 rating decision. Notwithstanding, the Board has construed and styled the claims as petitions for CUE based upon an overall reading of the Veteran's contentions. Specifically, the Board has considered the Veteran's representations that his VA Form 9, received by the Board on May 15, 2009, included the issues adjudicated in the March 17, 2009 rating decision (i.e. grants of entitlement to service connection for the above issues). However, the March 2009 Form 9 indicated a desire to appeal all the issues listed on the SOC and requested an extension of time to file an appeal with respect to the "document noted above dated Mar 17[,] 2009." The Board finds this statement to clearly be referencing only one "document" and that such document was the March 16, 2009 SOC that was mailed to the Veteran by cover letter dated March 17, 2009 and which accompanied the Form 9 subsequently filed by the Veteran. The absence of any mention of the March 2009 rating decision is more clear in that the Veteran references only one "document" for which he wanted an extension and given that the Veteran clearly referenced appeal of the "document noted above," which was the March 2009 SOC. Even were the Board to consider the foregoing to be request for an extension for filing a notice of disagreement as to any or all issues contained in the March 2009 rating decision, there is no statutory or regulatory authority to toll the notice of disagreement filing deadline. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201 (2013); see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) (noting that the statutory language for the notice of disagreement filing time limit is mandatory and jurisdictional in nature). Moreover, the Board has considered the Court's holding in Rudd v. Nicholson, 20 Vet. App. 296 (2006) that there can be no freestanding claim for an earlier effective date and that a final rating decision could be revised based only on the provision of new and material evidence or reopened based on clear and unmistakable error (CUE). This interpretation, has left the Board with only one conclusion, that the Veteran's overall assertions amounted to a challenge to the effective dates assigned in the March 2009 rating decision. As such, the issues have been referred to the RO as above. In addition, the Veteran has raised the issues of entitlement to service connection for irritable bowel syndrome (IBS) / colitis and entitlement to a separate 10 percent rating for arthritis of the lumbosacral spine. The Board notes that the RO has not previously addressed the above issues noted in bold and underlined. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an earlier effective date for the grant of entitlement to service connection for lumbosacral spine intervertebral disc syndrome with degenerative joint disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current degenerative joint disease of right hip with status post surgery of hip replacement is related to his military service. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current degenerative joint disease of left hip with status post surgery of hip replacement is related to his military service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, his degenerative joint disease of right hip with status post surgery of hip replacement was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. Resolving doubt in favor of the Veteran, his degenerative joint disease of left hip with status post surgery of hip replacement was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, the Veteran was not diagnosed with arthritis in service or within year of separation from service. As such, service connection on a presumptive basis is not warranted. In the absence of presumption, to 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2006). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Moreover, any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). The Board observes that the provisions of 38 C.F.R. § 3.310 were amended effective as of October 20, 2006, during the pendency of the instant appeal. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by service-connected one is judged. Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been the VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation. For this reason and as the Veteran's claim was pending before the regulatory change was made, the Board will consider his claim under the prior version of 38 C.F.R. § 3.310 as it is more favorable to the Veteran. As will be discussed in greater detail below, the Board finds the evidence of record sufficient to grant the Veteran's claims on a direct basis and no further consideration or discussion of secondary service connection will be made. The Veteran alleges that he has current bilateral hip disabilities due to the physical requirements and incidents of his 26 years of military service, specifically to include as the result of a helicopter accident in 1969 wherein he injured his service-connected low back disability. Initially, the Board notes the Veteran's service in Vietnam and documented helicopter crash in 1969 during that time in Vietnam. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. The Veteran's service treatment records do not specifically note a history of right and/or left hip pain or other hip problems. That said, an April 1990 dental treatment record included a report of painful joints. The records do include numerous problems relating to the low back, including a hemilaminectomy at L5-S1 in 1969. There also were less frequent reports of knee pain and leg cramps. The Board accepts, based on the evidence of record, that the Veteran has a current bilateral hip disability, specifically bilateral degenerative joint disease that necessitated a bilateral hip replacement in 2003. In addition, the Veteran has reported bilateral hip problems beginning in service. As the Veteran is competent to report such observed physical problems, the critical inquiry is whether there is evidence establishing a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Affording the Veteran the benefit of the doubt, the Board finds that there is. In reaching that conclusion, the Board notes that there are potentially conflicting medical opinions of record as to the etiology of the Veteran's current bilateral hip disability. In support of his claim, the Veteran submitted a June 2007 statement from his treating orthopedic physician. The physician indicated that the Veteran had undergone bilateral total hip replacements in June 2003 for "arthritis secondary to all the physical demands placed on him while in the Marines." The June 2007 statement did not include any rationale for the opinion provided. The Veteran was afforded a QTC examination in February 2009. The Veteran reported that his current bilateral hip condition had existed since 1969, but without specific injury or trauma. Following examination, the examiner diagnosed degenerative joint disease of right and left hip with status post surgery of hip replacement. This diagnosis was confirmed by x-rays. The examiner did not provide an opinion as to etiology. As the February 2009 QTC examiner had not provided an etiology opinion, VA obtained an independent medical opinion in March 2009. The reviewing physician discussed the Veteran's contentions, the June 2007 positive nexus opinion, and his service treatment records. The reviewer noted the absence of in-service documented complaints of hip problems, while at the same time the Veteran reported other joint problems, such as in the knees. The reviewer discounted the June 2007 opinion as the contention that the Veteran's bilateral hip replacement was secondary to the physical demands of service, "cannot be substantiated by this veteran's service medical records." As such, the reviewer concluded that it was less likely than not that the Veteran's bilateral hip degenerative joint disease / hip replacement was caused by his time in service. Finally, the Veteran submitted a second statement from his private treating orthopedic surgeon, this statement dated in June 2013. The physician noted treatment of the Veteran from 2003 through 2009 and discussed his condition at the time of initial treatment and the subsequent treatment course, which included bilateral hip replacement. The physician indicated that in his practice he treated many former military service members and was familiar with the "impact of the rigors of military service upon my patients." The physician's concluded that "at a minimum, it is as likely as not that [the Veteran's] condition is related to his military/combat service." In addition to the physician's noted experience with military service members, he stated that while the Veteran's hips were replaced at age 57, they were in such poor condition that they could have been replaced as early as 5 years previously. In addition, the Veteran's overall physical condition was very good, with a lean body type, and he was a non-smoker. In addition, there were "no other contributing factors in his history or state of health to account for that level of deterioration and loss of function." Finally, the physician opined that the 1969 helicopter crash injured more than just the Veteran's spine and that "it is very likely that his hips may [] also have suffered trauma, thus setting the stage for the deterioration and damage to the hip joints." The rationale was that it was unusual in cases of severe trauma to see injury completely isolated to one part of the body. The Board finds the above February 2009 and June 2013 private medical opinions to be of significant probative value. While there is no evidence that the Veteran's private treating orthopedic surgeon examined the Veteran's service treatment records before reaching his conclusions, the Veteran's self-reported history of physical demands and the 1969 helicopter accident is credible and consistent with the nature of his service, service location, and evidence of record. Both physicians provided a rationale for their opinions. That said, the Board is somewhat concerned that the February 2009 physician's opinion was based solely on the absence of any documented in-service complaints regarding the hips and failed to consider or discount the Veteran's lay reports of in-service hip problems. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). By contrast, the June 2013 orthopedic surgeon's opinion contained multiple rationales in support of his conclusion that the Veteran's current bilateral hip disability was related to his military service. In light of the Veteran's current bilateral hip disability, he and his wife's credible lay testimony regarding bilateral hip problems, and the June 2013 private physician's opinions linking the current bilateral hip disability to the Veteran's military service, the Board concludes that the evidence is at least in relative equipoise as to whether his bilateral hip degenerative joint disease with status post surgery of hip replacement is directly related to the physical demands of his military service, to include the 1969 helicopter accident. When the totality of the evidence supports the Veteran's claims or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, having resolved reasonable doubt in favor of the Veteran, the Board concludes service connection is warranted for degenerative joint disease of right and left hip with status post surgery of hip replacement. ORDER Entitlement to service connection for degenerative joint disease of right hip with status post surgery of hip replacement is granted. Entitlement to service connection for degenerative joint disease of left hip with status post surgery of hip replacement is granted. REMAND In addition, a September 2012 rating decision, in pertinent part, granted the Veteran service connection for post operative scar on back as secondary to service-connected lumbosacral spine intervertebral disc syndrome with degenerative joint disease; post-op and assigned a noncompensable rating effective from September 8, 2011. The Veteran, in a written statement received at the time of the July 2013 Board hearing indicated that he disagreed with the effective date assigned for his service-connected post operative scar on the back. The statement constitutes a timely "notice of disagreement" (NOD) as defined under the regulations. See 38 C.F.R. § 20.201 (2013). Accordingly, the above claim must be remanded to allow the RO to provide the Veteran with a statement of the case (SOC) on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: Issue an SOC addressing the issue of entitlement to an effective date prior to September 8, 2011, for the grant of service connection for post operative scar on back as secondary to service-connected lumbosacral spine intervertebral disc syndrome with degenerative joint disease; post-op. The Veteran should be provided the opportunity to perfect a timely Substantive Appeal (VA Form 9) with respect to that issue. The RO/AMC is free to undertake any additional development deemed necessary with respect to that issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs