Citation Nr: 1331740 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-12 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for bilateral hip disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from November 1999 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran currently resides within the jurisdiction of the RO in Cheyenne, Wyoming. In April 2010, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In February 2011 and August 2012, the Board remanded this matter for additional development. FINDINGS OF FACT 1. The probative medical opinion evidence shows that the Veteran's juvenile rheumatoid arthritis clearly and unmistakably pre-existed active service and is shown by clear and unmistakable to have not been aggravated beyond the natural progression of the disability during active service, and is not show be due to aggravated by service-connected bilateral knee disabilities. 2. The medical opinion evidence shows that the Veteran's Still's disease should be considered a result of the Veteran's juvenile rheumatoid arthritis. CONCLUSION OF LAW The criteria for service connection for a bilateral hip disability are not met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in January 2008, August 2011, and September 2012 letters. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran contends that the physical demands of his service, including strength training and exercising or a motorcycle accident, caused his current bilateral hip disability or that his pre-existing childhood arthritis was aggravated by his service and resulted in the need for hip surgery earlier than would have otherwise been necessary. Alternatively, he contends that he was diagnosed with rheumatoid arthritis within one year following his discharge from service and is entitled to presumptive service connection for a bilateral hip disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Noted denotes only conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of the conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. 38 C.F.R. § 3.304(b)(1) (2012). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. Once the presumption of soundness has attached, VA holds the burden of proving by clear and unmistakable evidence that both (1) the Veteran's disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (clear and convincing burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant v. West, 17 Vet. App. 116 (2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing disability. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a disability was both preexisting and not aggravated by service. Service medical records show that on October 1999 entrance examination, the Veteran did not report a history of childhood arthritis. No hip abnormality was found or diagnosed. In May 2000, the Veteran reported that while running, he began to experience pain in his knees and ankles. He reported that he had had juvenile arthritis as a child but had not had an episode or exacerbation in seven years. X-ray examination of the knees was normal. There was no current osteoarthritis. The assessment was that he probably did not have a juvenile arthritis recurrence but rather joint inflammation from activity. A June 2000 record shows a note of occasional joint pain and stiffness. The assessment was healthy joints. An October 2000 health evaluation shows that the Veteran reported a history of arthritis and a bone and joint problem. On October 2003 separation examination, the Veteran reported back pain and ongoing knee pain, but did not report any hip trouble or discomfort. It was noted that the Veteran had a vague history of juvenile arthritis that was asymptomatic at that time. Post-service treatment records show that in February 2004 the Veteran underwent a VA general medical examination. He complained of bilateral knee problems, but did not have complaints pertaining to his hips. In November 2004, the Veteran was hospitalized for a persistent fever, myalgia, and a sore throat. At that time, the Veteran reported a past medical history significant for juvenile rheumatoid arthritis at the age of 5, off medications since the age of 12. A rheumatologist consultation resulted in a diagnosis of adult onset Still's disease. On follow-up in December 2004, a private medical record notes an impression of suspect adult Stills disease. Fevers had resolved and the Veteran's was clinically doing well. On October 2005 orthopedic examination, it was noted that the Veteran had been diagnosed with juvenile rheumatoid arthritis at the age of five, but that at the age of twelve, he had undergone a spontaneous remission with no symptoms. At that time, he did not have any symptoms of painful joints but was instead suffering from headaches and nausea. After physically examining the Veteran, the diagnosis was inflammatory arthritis consistent with juvenile rheumatoid arthritis. Follow-up records show that in August 2006, the Veteran experienced right ankle and hip pain. It was hard to walk or straighten the right leg. It was felt that the Veteran's hip pain was likely related to an alteration of gait. In September 2006, he complained of pain in his hips with morning stiffness and fatigue. Physical examination showed painful motion of the right hip. The impression was active juvenile rheumatoid arthritis. In May 2007, he had pain in his right ankle and continuing pain in his right hip. Physical examination of the right hip showed some synovial thickening and tenderness at the right subtalar joint. In November 2007, the Veteran submitted an initial claim for service connection for a bilateral hip disability. In an April 2009 letter, the Veteran reiterated that he was diagnosed with juvenile rheumatoid arthritis when he was five years old and by the age of 12, the symptoms began to vanish. He asserted that he discussed with the service recruiter his medical history, and he was advised that since he had no lingering effects from the past juvenile rheumatoid arthritis diagnosis, that he had seemingly grown out of it and there was no need to mention it. He stated that during basic training he was deeply engaged in strenuous activity and was in pain. The Veteran asserts that the enormous amount of stress from his years in service and multiple deployments led to the increase in pain and discomfort with the joints in his lower extremities. After service, he underwent a right total hip replacement surgery and that he had relief in pain. He still needed to undergo a left total hip replacement. During the April 2010 Board hearing, the Veteran and his representative asserted that the Veteran was diagnosed with juvenile rheumatoid arthritis at age 5, but at the age of 12 his symptoms ad all but disappeared and that the Veteran was found fit for service after his pre-enlistment physical in 1999. Six months after discharge, the Veteran was hospitalized and diagnosed with adult onset Still's disease. The Veteran contends that based upon his medical history, that diagnosis and treatment within one year of discharge qualifies him for service connection by aggravation within that one year presumptive period. The Veteran argued that his service likely aggravated his hip disability beyond the normal progression of the disease. At a September 2011 VA examination, the examiner noted that the Veteran was of interest because he had juvenile rheumatoid arthritis and was cleared to join the service. The VA examiner diagnosed bilateral hip replacement due to flare of juvenile rheumatoid arthritis. The examiner commented that there was absolutely no indication in the service medical records that the Veteran did anything while he was in the service to aggravate his juvenile arthritis or to aggravate a hip disability that he might have had at that time. In a May 2012 informal hearing presentation, the Veteran's representative contended that a May 2000 internal medicine consultation report showed that the Veteran was diagnosed with joint inflammation. The representative also asserted that the motor vehicle accident during service contributed significantly to the Veteran's bilateral hip disability. Specifically, witnesses had stated in a November 2000 disposition report that the Veteran flew from his motorcycle and into a guardrail after being hit from behind at 70 miles per hour. The Veteran's representative contended that while the brunt of the injuries from the November 2000 motorcycle accident were facial and upper-extremities, that incident caused body trauma throughout. In addition, the representative referenced an October 2003 report of medical history in which the examiner's summary includes a history of asymptomatic juvenile rheumatoid arthritis and an October 2003 report of medical examination noting the Veteran with lumbago. Lastly, the representative referred to negative laboratory findings in May 2000, November 2004, and October 2005, to support an assertion that the presumption of soundness applies to the Veteran. At a January 2013, VA hip examination, the examiner reviewed the Veteran's claims file and performed an in-person examination. The diagnosis was "a/p" hip replacement of both hips, no current right and left hip disability. The Veteran reiterated his medical history. He stated that he was unsure if he had hip pain in service. He was diagnosed with Still's Disease in November 2004, subsequent x-rays showed severe degeneration of the hips, and he underwent total bilateral hip replacements. He was doing well related to Still's disease until he had a relapse in February 2012. The Veteran reported that after surgery his hips were doing well except for occasional locking due to prolonged standing. The VA examiner again concluded that there was no current right and left hip disability. The VA examiner opined that the Veteran had most likely had juvenile rheumatoid arthritis. No records from his childhood are available. The Veteran had a history of symptoms and serology that was consistent with that disability. The medical literature showed three types of arthritis, pauci, polyarticular, and still. Systemic onset juvenile idiopathic arthritis (formerly called Still's disease or systemic onset juvenile rheumatoid arthritis ) was officially classified as a subset of juvenile idiopathic arthritis (JIA) that described patients with intermittent fever, rash, and arthritis. It was sometimes called adult-onset Still's disease when it occurred in patients over the age of 16. The examiner further opined that it seemed during service that the Veteran's arthritis was stable. He had no hip problems documented in service. The Veteran indicated the onset of hip pain several months after separation in 2004. There was no evidence that pre-existing juvenile rheumatoid arthritis or Still's disease was aggravated beyond the natural progression during service. The VA examiner further opined that the Veteran's Still's disease should be considered a result of the Veteran's juvenile rheumatoid arthritis, and not a separate entity. It was a form of the juvenile rheumatoid arthritis. Still's disease was one type of juvenile idiopathic arthritis (JIA) and was also known as systemic-onset JIA. Systemic-onset JIA was formerly known as systemic-onset juvenile rheumatoid arthritis (JRA) and was the same disease. Several years ago, the naming system for all types of JRA changed and JRA was now called JIA. The examiner further stated that systemic onset juvenile idiopathic arthritis (formerly called Still's disease or systemic onset juvenile rheumatoid arthritis) was officially classified as a subset of JIA that described patients with intermittent fever, rash, and arthritis. It was sometimes called adult-onset Still's disease when it occurs in patients over the age of 16. The VA examiner then cited medical literature, including a notation that there was destruction of the hips in Still's disease compared with pauci and polyarticular JRA. In regard to whether the Veteran's service-connected right and left knee disabilities caused the Veteran's hip disabilities, the VA examiner stated that JRA or Still's pre-existed service and thus, a response was not applicable. The VA examiner lastly opined that the Veteran's hips were not aggravated (increased in severity beyond the natural progress of the disability) by his service-connected right and left knee disabilities, noting that there were no residuals of the hips after surgery. In this case, the Board is aware that the Veteran's clinical entrance examination was negative for any findings of juvenile rheumatoid arthritis or a bilateral hip disability, and therefore, the Veteran would be entitled to the presumption of soundness. However, the Veteran reported having had juvenile rheumatoid arthritis in childhood, and the January 2013 VA examiner finding that the Veteran had a history of symptoms and serology consistent with that disability concluded that the Veteran most likely had juvenile rheumatoid arthritis. Within that same opinion, the VA examiner later opined that the Veteran's JRA or Still's disease pre-existed service. Thus, the Board finds that the presumption of soundness is rebutted by evidence showing clearly and unmistakably that the disability preexisted service. Therefore, the Board must consider whether the Veteran's preexisting juvenile rheumatoid arthritis was aggravated in service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The January 2013 VA examiner opined that there is no evidence that the Veteran's pre-existing juvenile rheumatoid arthritis or Still's disease was aggravated beyond the natural progression during service and that the Veteran's service-connected bilateral knee disabilities did not aggravate his bilateral hip disability. Further, the VA examiner opined that the Veteran's Still's disease should be considered a result of the Veteran's juvenile rheumatoid arthritis, and not a separate entity. The examiner explained that it was a form of the juvenile rheumatoid arthritis. The VA examiner provided a comprehensive discussion of the medical literature, including in support of the opinion a finding that it was more common to find destruction of the hips in those individuals with Still's disease. The VA examiner provided a thorough discussion of the rationale for all the opinions expressed. The Board finds that the evidence does not credibly show any increase in severity of any preexisting rheumatoid arthritis during service. In this case, the Board finds that January 2013 opinion is supported by a rationale that was provided after the VA physician considered all evidence of record, to include the Veteran's assertions and he provided clear and legitimate explanations for his opinions. The examiner's findings and opinions are also consistent with those provided in the September 2011 VA examination report. Neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection. The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the Veteran's claim is his own lay statements. The Board notes that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, a determination of whether a pre-existing disability (in this case, rheumatoid arthritis also diagnosed as Still's disease) was aggravated in service beyond its normal progression and whether any diagnosed bilateral hip disability is related to service, requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Consequently, the Veteran's statements do not constitute competent medical evidence in support of his claim. Accordingly, the Board finds that the claim for service connection for a bilateral hip disability must be denied. In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral hip disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs