Citation Nr: 1331405 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-26 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of right knee contusion (right knee disorder). 2. Entitlement to service connection for residuals of left knee arthroscopic meniscetomy (left knee disorder). 3. Entitlement to service connection for right hip avascular necrosis (right hip disorder). 4. Entitlement to service connection for left hip avascular necrosis (left hip disorder). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1981. He also reports having served in the Army Reserve between 1981 and 2001. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the bilateral knee and bilateral hip disorders currently on appeal. On his June 2010 substantive appeal, the Veteran indicated that he wanted a hearing before the Board to be heard at the RO (Travel Board). In an April 2013 written statement signed by his representative, the Veteran withdrew his request for a hearing. Therefore, the request for a hearing has been withdrawn. The issues of service connection for residuals of right knee contusion and service connection for residuals of left knee arthroscopic meniscetomy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran's has currently diagnosed right hip avascular necrosis is related to service. 2. The evidence of record does not show that the Veteran's has currently diagnosed left hip avascular necrosis is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip avascular necrosis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). 2. The criteria for service connection for left hip avascular necrosis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In this case, a VCAA notice letter sent in February 2009 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate service connection claims, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The February 2009 notice letter also included information regarding how disability ratings and effective dates are assigned. The Board also finds that all necessary assistance has been provided to the Veteran in regard to the claim for service connection for the bilateral hip disability. The Veteran was afforded a VA examination in April 2009 which addressed the claims for service connection for the tight and left knee disorders. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the April 2009 VA examination and opinion obtained in this case is adequate. The April 2009 VA authorized examination included a physical examination of the Veteran's hips, a detailed medical and personal history, and the VA opinion considers all of the pertinent evidence of record, to include the statements of the Veteran and objective findings from the medical record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, and the Veteran's statements. The Veteran and representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of bilateral hip avascular necrosis is not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for a Bilateral Hip Disorder In his substantive appeal (VA Form 9), the Veteran reported that his right and left hips cause him pain and discomfort that impact his ability to sleep and cause depression. The Veteran has not specified any dates of the purported bilateral hip injury or any facilities where he may have been treated for such injuries. Initially, the Board finds that the Veteran did not participate in combat with the enemy during service and the record does not reflect so. As such, the combat rule is not applicable. 38 U.S.C.A. § 1154(b) (West 2002), 38 C.F.R. § 3.304(d) (2013). Next, the Board finds that the Veteran has a current disability, diagnosed as bilateral hip avascular necrosis. See April 2009 VA examination report. Upon review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that currently diagnosed bilateral hip avascular necrosis was not incurred in service. Although the Veteran has a current diagnosis of a bilateral hip disorder, the Board finds that there is no competent or credible lay or medical evidence indicating that there was an in-service injury or disease that can be related to his currently diagnosed bilateral hip avascular necrosis. In this regard, service treatment records are negative for any complaints, diagnosis, or treatment for a hip injury or disease during service. In-service reports of medical examinations dated January 1978, March 1983, March 1987, January 1991, and October 1994, reveal normal clinical evaluations of the Veteran's lower extremities. Further, in-service reports of medical history, completed by the Veteran in January 1978, April 1981, March 1983, March 1987, January 1991, and October 1994, show no complaints by the Veteran of hip pain or any other hip-related symptoms. Moreover, although the Veteran sought treatment for other ailments during service, to include other orthopedic injuries, he did not report or seek treatment for a hip disorder. For instance, the Veteran was treated after being involved in a motor vehicle accident in January 1981. In April 1981, the Veteran sought treatment for a painful right arm. In March 1998, the Veteran sought treatment for a right knee injury, and the records indicate he underwent arthroscopic knee surgery in May 1998. At no time, however, did the Veteran report hip pain or a hip injury during these treatment sessions. Had the Veteran experienced bilateral hip pain during service, the Board finds it reasonable that the Veteran would have reported such ailments during these evaluations. The Board finds that the Veteran's statements made in the course of treatment in service to in-service physicians have greater probative value than the statements made pursuant to the VA compensation claim because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy as the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). For these reasons, the Board finds that service treatment records weigh against a finding of an in-service injury or disease relating to the Veteran's bilateral hip disorder. Also weighing against the Veteran's claim for service connection for a bilateral hip disorder are post-service VA treatment records. Although the records reflect continued VA treatment for bilateral hip pain, the first diagnosis for a hip disorder was in January 2009, nearly thirty years after service separation from active duty and eight years after release from the Army Reserve. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Additionally, VA treatment records do not reflect that the Veteran has ever reported that he experienced a hip injury or disease in service. This evidence further weighs against a finding that a bilateral hip disability was incurred in service or that the Veteran suffered an in-service injury or disease relating to his currently diagnosed hip disorder. Further weighing against the Veteran's claim is the April 2009 VA examination report where the Veteran denied any antecedent history of trauma to the hips. The Veteran further reported that his hips had been bothering him for approximately one year (i.e., 2008, approximately seven years after service separation). See Maxson 230 F.3d at 1333. Upon review of the evidence of record, both lay and medical, the Board finds that the weight of the credible and probative evidence demonstrates that the Veteran did not sustain an in-service injury or disease relevant to his bilateral hip disability. As there is no in-service injury or disease to which to relate the current bilateral hip disability, and the Veteran has not explained or articulated how his bilateral hip disability is related to service, the question of relationship (nexus) to service is not even reached in this case. See Shedden, 381 F.3d 1163; see also Hickson, 12 Vet. App. at 253. For these reasons, the Board finds that the preponderance of the evidence weighs against the Veteran's claims for service connection for the right and left hip disorders. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right hip avascular necrosis is denied. Service connection for left hip avascular necrosis is denied. REMAND In a VA treatment record dated March 2006, the Veteran reported serving in the Army Reserve from 1981 to 2001. In his substantive appeal (VA Form 9), the Veteran reported that he injured his left knee when he slipped and fell as he was leaving to report to duty in the Army Reserve. He also stated that he injured his right knee in Miami, Florida, while serving in the Army Reserve. No specific dates or facilities have been identified by the Veteran. The term 'veteran' is defined in 38 U.S.C.A. § 101(2) (West 2002) as 'a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.' Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d) (2013). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505 (West 2002); 38 C.F.R. § 3.6(c)(3) (2013). The service treatment records (STRs) reveal that that in March 1998 the Veteran sought treatment for a right knee injury, and the records indicate he underwent arthroscopic surgery on his right knee in May 1998. The Veteran was put on a physical profile for his knee injury in March 1998, August 1998, and November 1998. The details of how the Veteran injured his right knee are not included in this record. Indeed, there is no indication whether the Veteran injured his knee while on Reserve duty, either ACDUTRA or INACDUTRA, and there are no line of duty determinations included in the record. Moreover, there is no indication that VA has attempted to collect the Veteran's service personnel records from the NPRC or appropriate repositories of Army National Guard/Reserve records. The evidence detailed above reveals a right knee ailment documented in the STRs coinciding with a possible period of qualifying service during the Veteran's membership in the Army National Guard/Reserve. This evidence, in conjunction with the Veteran's unspecific assertions of possible right and left knee injuries during periods of ACDUTRA and/or INACDUTRA, leads the Board to conclude that additional development is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a new VCAA notice for the claims of service connection for the right and left knee disorders. The letter should specifically notify him of the information and evidence necessary to substantiate his claims for service connection based on Army Reserve service. The Veteran should be specifically asked to provide the dates and locations of where he sustained the purported knee injuries and whether he was on ACDUTRA or INACDUTRA at that time. If the Veteran sought treatment for the purported knee injuries, he should provide the names and locations of the facilities. The Veteran should be given a reasonable opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Then, if the Veteran provides specific information regarding the dates and location of his purported knee injuries, attempts should be made to verify whether the dates provided by the Veteran were during a period of ACDUTRA and/or INACDUTRA. All associated medical records and service personnel records from periods of ACDUTRA and INACDUTRA should be associated with the claims file. 3. The RO/AMC shall then review the claims file and the evidence therein, and conduct any additional development deemed necessary, which may include additional searches from records or scheduling the Veteran for an appropriate VA examination and/or opinion. 4. The RO/AMC should then readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs