Citation Nr: 1331531 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-34 896 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a bilateral hip disorder, claimed as secondary to service-connected right knee and/or low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from June 1969 to August 1970 and from October 1972 to September 1978. This case initially came before the Board of Veterans' Appeals (Board) on appeal from July and October 2008 rating decisions of the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in September 2010; a transcript of the hearing is associated with the claims file. In April 2011, January 2012 and February 2013, the Board remanded the case to the RO for additional development of the record. That development having been completed, the case has since been returned to the Board for appellate review. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The currently demonstrated bilateral hip disability manifested by degenerative joint disease (DJD) is not shown to have been caused or aggravated by the service-connected connected right knee or low back disability. CONCLUSION OF LAW The Veteran's disability manifested degenerative joint disease of both hips is not proximately due to or the result of the service-connected right knee or low back disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defects in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a June 2007 letter issued prior to the decisions on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Hence, the February 2009 letter, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private treatment records and VA examination reports. The Board is aware that this appeal was, most recently, remanded by the Board in February 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO obtain an adequate VA medical opinion regarding the etiology of the Veteran's bilateral hip disorder. This development was completed in the April 2013 VA examination report when a physician reviewed the Veteran's claim file and offered a clarifying opinion as to the nature and likely etiology of the Veteran's claimed bilateral hip disorder. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any material effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In addition, during the hearing, the VLJ clarified the issue, determined that there might be additional evidence and addressed the Veteran's manifestations. Such actions supplemented VCAA and complied with 38 C.F.R. § 3.103 (even if not applicable). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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 may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective on October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background The Veteran's service treatment records are negative for complaints or findings of a hip disorder. In an August 2006 statement, the Veteran's treating chiropractor reported that the service-connected right knee disability caused him to walk awkwardly putting more of an imbalance of pressure on one hip and causing increased strain in the hip resulting in inflammation and pain. The chiropractor explained that chiropractic treatments were designed to increase and normalize the motion in the sacroiliac joints and decrease inflammation. An October 2007 report of VA examination noted that the Veteran denied having regular pain, weakness, stiffness, swelling, heat, redness, instability, locking, fatigability or lack of endurance of either hip. Rather, the Veteran reported experiencing flare-ups of bilateral hip pain approximately three times per month, precipitated by pain or discomfort with his right knee. As soreness intensified in his right knee, he walked with a limp or unsteady gait and experienced increasing pain in his hips. Aspirin, TENS unit and chiropractic care were alleviating factors for the bilateral hip pain. The bilateral hip symptoms were noted to prevent him from playing with his grandchildren and performing heavy house or yard work. He had been a mailman, but was forced to take early retirement because he could no longer stand due to the right knee, hip and low back pain. On examination, the Veteran was noted to have a pronounced limp favoring his right side. The diagnosis was that of right and left hip pain with normal radiological findings. The X-ray studies showed no fracture, dislocation or other bone or joint abnormality. The impression was that of normal examination of the right and left hip, respectively. The VA examiner concluded, in pertinent part, that the examination revealed that the Veteran walked with a pronounced limp favoring his right side (due to the right knee disability) and that that motion caused an imbalance of pressure on one hip which caused the other hip to undergo increased strain resulting in inflammation and pain of both hips. Thus, the VA examiner opined that the bilateral hip pain was most likely caused by or the result of his service-connected right knee disability. In a March 2008 statement, the Veteran's treating chiropractor repeated that the Veteran's right knee disability caused him to walk awkwardly putting more weight on one side and caused an imbalance of pressure on one hip resulting in that hip undergoing increased strain that resulted in inflammation and pain (on the involved side or the compensatory side). The relevant diagnoses were those of bilateral pelvic segmental dysfunction, bilateral sacroiliac inflammation and lumbago. The Veteran was noted to have undergone treatments to increase and normalize the motion in the sacroiliac joints and decrease inflammation. In an August 2008 statement, the Veteran's treating chiropractor explained that the Veteran's right knee disability caused him to limp and that, when walking, he compensated by putting abnormal stress on his sacroiliac joints and hip (glenofemoral) joints. This resulted in chronic pain in both the sacroiliac and glenofemoral joints from the constant and abnormal strain. An April 2009 report of VA spine examination noted, in pertinent part, that, because of the right knee injury and subsequent surgeries, the Veteran had a long history of walking with an altered gait and "pelvic unleveling." A May 2011 report of VA examination noted the Veteran's contention that his right knee disability led to his walking with an altered gait and caused pelvic unleveling resulting in problems with his hips. The Veteran reported that the pain in his hips did not occur simultaneously in that the pain usually affected one hip or the other, with left hip pain worse than the right. Increased activity was noted to precipitate the Veteran's hip pain, and sitting or lying flat relieved the pain. On the right hip, the pain started in the right outer quadrant of the hip and radiated laterally to the right knee and into his toes anteriorly with tingling. The left hip pain was localized in the mid hip area and back. The VA examiner noted the statement of the Veteran's treating chiropractor. However, the VA examiner explained that there was no research evidence indicated by the chiropractor to support his opinion (or evidence connecting his opinion to research literature). Based on the examination, the diagnosis was that of mild degenerative changes of the hips. The X-ray studies showed mild degenerative changes of the left hip joint with no evidence of fracture/dislocation or focal osseous lesions. The X-ray studies also showed minimal degenerative changes of the right hip join; no other significant additional findings. The VA examiner concluded, after a review of the Veteran's medical history and an examination of the hips, that he had significant pathology of the spine that could refer pain to the hips. The VA examiner explained that the literature reviewed in regard to the hip pain indicated that "the back commonly [did] refer pain to or through the hip. The lumbar roots refer[red] pain through the gluteus and posterior lateral thigh area. Pain in the hip [could] be pain referred to the hip area from other structures such as lumbosacral spine." The VA examiner added that the Veteran's complaints were consistent with lumbar root pain. The examiner found that the degenerative findings of the hips were age-appropriate changes for a 60 year old male. The examiner opined that the Veteran's hip disorder was "as least as likely as not (50/50 probability)" caused or aggravated by the service-connected back disability. In a February 2012 report of VA examination opinion, the examiner (who conducted the May 2011 examination) clarified that the Veteran's claimed bilateral hip disorder was "less likely than not (less than 50 percent probability)" proximately due to or the result of the service-connected disabilities. The VA examiner explained that she had inadvertently stated in the previous examination report that the bilateral hip disorder was "as least as likely as not" caused or aggravated by the service-connected back disability. The VA examiner opined that the radiographic evidence (May 2011) was consistent with age-related changes/mild degenerative changes of the bilateral hips. In an April 2013 report of VA examination opinion, a physician opined that the claimed bilateral hip disorder was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. The VA physician explained that there was no credible medical evidence that the Veteran's age-related degenerative changes of the hips were caused by the service-connected low back or right knee disabilities. The VA physician also opined that the bilateral hip disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disabilities. The VA physician explained that the Veteran's mild degenerative changes of the left hip and minimal degenerative changes of the right hip, were normal, age-related changes and not consistent with a permanently worsened disorder of the hips (aggravated) by the service-connected low back or right knee disability. The VA physician took note of the statement from the Veteran's treating chiropractor and the October 2007 VA examination report stating, "[the examiners] [were] of the opinion that the abnormal gait ha[d] led to DJD of the hips." However, the VA physician noted that previous reports showed that the Veteran walked with a slight limp favoring his right knee. The physician concluded that a slight limp would not be expected to cause hip DJD. The VA physician added that the DJD of the hips was mild, consistent with age expected findings and was symmetrical. The physician reviewed the x-ray reports of May 2011 and October 2007 and concluded that those findings were mild and symmetrical. The VA physician determined that the hip DJD (mild) was due to age-related factors and possibly genetics. The physician found that it was not due to the service-connected back/spine or knee disabilities. The VA physician identified treatise evidence regarding osteoarthritis, specifically osteoarthritis of the hips. The physician concluded, after reviewing the documentation and claims file, that there was no credible, scientific or documentation of causative record that the claimed bilateral hip disorder was caused or aggravated by either the service-connected low back or right knee disability. The VA physician explained that, whereas DJD of the knee was affected by weight and other exogenous factors, there was no correlation with DJD of the hip. There was no scientific medical evidence that the service-connected knee or spine disability placed the Veteran at risk for developing DJD of the hip. The physician concluded that the most likely cause was age and/or genetics. Analysis The Veteran does not contend that his bilateral hip disorder had its clinical onset during service. Rather, he asserts that his bilateral hip degenerative changes are causally related to his service-connected low back and right knee disabilities. Specifically, he reports having an altered gait from his right knee disability that caused his bilateral hip disorder. In the May 2011 report of VA examination, the examiner initially found that the degenerative findings of the bilateral hips were age-appropriate changes for a 60 year old male. Thus, in the February 2012 report of VA examination opinion, the examiner clarified that the Veteran's bilateral hip disorder, DJD of the hips, was less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities (because the DJD was age-related). In the April 2013 report of VA examination opinion, the physician indicated that the claimed bilateral hip disorder (DJD) was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. The physician also indicated that the bilateral hip disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disabilities. The VA physician explained that there was no credible medical evidence that the Veteran's age-related degenerative changes of the bilateral hips were caused or permanently worsened by the service-connected low back or right knee disabilities. The VA physician added that a slight limp (due to altered gait as a result of the right knee or low back disabilities) would not be expected to cause hip DJD. Thus, the Veteran's hip DJD (mild) was due to age-related factors and possibly genetics. Referencing treatise evidence regarding osteoarthritis, specifically osteoarthritis of the hips, the VA physician concluded that there was no credible, scientific or documentation of causative record that the claimed bilateral hip disorder was caused or aggravated by either the service-connected low back disability or the service-connected right knee disability. To that end, the physician explained that, whereas DJD of the knee was affected by weight and other exogenous factors, there was no correlation with DJD of the hip. There was no scientific medical evidence that the knee or spine disability placed the Veteran at risk for developing DJD of the hip. The physician concluded that the most likely cause was age and/or genetics. Specifically, the Board notes that the April 2013 VA physician's opinion was based on a thorough review of the medical records (including conflicting medical evidence) and reviewing the medical literature. To the extent that the Veteran specifically claims service connection for DJD of the hips, as secondary to his service-connected right knee and low back disabilities, the only evidence of record supporting his claim are his various general lay assertions. The Board notes that the Veteran is competent to describe his altered gait and bilateral hip pain. 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). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay statement like those of the Veteran. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Veteran's assertions of having hip pain are credible, the Board finds the opinion of the VA examiner in the April 2013 report to have significant probative weight in deciding in this appeal. The VA examiner is a medical professional who has reviewed the claims file, considered the reported history and reviewed the medical literature. The examiner used his expertise in reviewing the facts of this case and determining that the current DJD of the hips was not caused or aggravated by the service-connected right knee or low back disability. Significantly, the Veteran has not identified any medical evidence to support his lay assertions by showing that current his DJD of the hips is caused or aggravated by a service-connected disability. To the extent that the Veteran's chiropractor initially noted treating the Veteran for hip pain that was characterized as bilateral pelvic segmental dysfunction, bilateral sacroiliac inflammation and lumbago due to the service-connected right knee disability causing him to walk awkwardly, the October 2007 report of VA examination noted that the Veteran experienced only flare-ups of bilateral hip pain approximately three times per month and had a normal examination of the hips at that time. Significantly, the conditions identified by the chiropractor as requiring treatment at that time did not specifically include a condition involving either hip. Thus, the Board also finds that this medical evidence did not identify the episodes of hip pain as constituting a chronic disease process involving either hip. Moreover, on this record, any pain referred from the low back in and of itself would be considered to be the result of the identified low back disability and would be rated on a basis other than that due to hip pathology per se. Accordingly, based on the evidence of record, the Board finds that service connection for a bilateral hip disorder must be denied. ORDER Service connection for a bilateral hip disorder, claimed as secondary to the service-connected right knee and/or low back disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs