Citation Nr: 1333410 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-28 195 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a claimed right hip disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to January 1958. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2008 by the RO. The Veteran requested a hearing before a Veterans Law Judge in July 2010. He cancelled the hearing request on the day of the scheduled hearing in April 2013. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). The Board remanded this matter for additional development of the record in July 2013. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not found to have presented credible lay assertions to show that he sustained a right hip injury during service. 2. The Veteran is not shown to have manifested complaints or findings referable to a chronic right hip disorder until many years after service. 3. The currently demonstrated right hip replacement due to severe endstage arthritis is not shown to be due to a documented event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran does not have a right hip disability manifested by arthritis due to a disease or injury that was incurred or aggravated by active service; nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101; 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The August 2007 VCAA letter explained what evidence was necessary to substantiate the Veteran's claim of service connection for a right hip disability. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the August 2007 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). 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 service treatment records, private treatment records, a report from the Joint Services Records Research Center (JSRRC), administrative documents in connection with Social Security Administration (SSA) records, and statements from the Veteran. In a July 2013 remand, the Board instructed that the Veteran provide corroboration for any awards or decorations received during his period of service and in-service treatment for a right hip injury. The Board also instructed the Agency of Original Jurisdiction (AOJ) to attempt to verify the claimed in-service airplane crash. The Veteran did not respond to the July 2013 request for additional evidence. In September 2013, VA received reports from JSRRC regarding the airplane crash. Accordingly, the requirements of the remand were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The records from SSA were found to be unavailable. Specifically, in March 2010, the Veteran was notified of the unavailability of these records. The Board has considered whether any factors require VA to offer a VA examination here. It is recognized that the Veteran alleges that he injured his right hip in an airplane crash, and that he was awarded a Bronze Star due to his heroics during this incident. The Board finds that no such examination is required in this case as his involvement in an in-service airplane crash has not been verified. See Bardwell v. Shinseki, 24 Veteran. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required.). The Board finds that there is no reasonable possibility that further assistance would aid in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Veteran. App. 227 (2000); Dela Cruz v. Principi, 15 Veteran. App. 143 (2001). II. Law and Regulation Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Analysis The Veteran asserts that his current right hip disorder is due to an injury sustained during service in an airplane crash in 1957. In a statement received in August 2007, he reported being in a plane when it crashed into a building on an airstrip and smashing his right hip on the wall of the airplane at that time. In a February 2009 statement, the Veteran reported receiving a Bronze star for his efforts during the airplane crash. This incident was researched by JSRRC. In September 2013 responses to VA, JSRRC reported that a review of the Veteran's service personnel records showed that he was assigned to the Naval Reserve Aviation Squadron 776 from August 13, 1956 to at least April 1, 1957. The Naval History & Heritage Command (NHHC) was contacted by JSRRC and stated that it did not maintain a 1957 command history for Patrol Squadron 776. However, NHHC responded that it reviewed a January 19, 1957 crash report showing that an aircraft assigned to Patrol Squadron 772 over ran a runway at Naval Air Station in Los Alamitos and caught fire. While VA was unable to obtain records from the Veteran's unit, JSRRC was able to provide information regarding which unit responded to the crash. The Veteran's unit was not listed. JSRRC indicated that information regarding a military award or decoration for the incident might have been documented in service personnel file, but the service department found no evidence of any awards or medals for the Veteran. As such, the Board finds that the available evidence does not corroborate the Veteran's statements as to the occurrence of the claimed event during service. Moreover, his service treatment records do not show complaints or findings referable to a right hip disorder during service. In fact, a medical abstract noted that the Veteran had been examined and found to be physically qualified for duty as an air crewman in July and September 1957, The first post-service evidence of medical treatment for a right hip disorder is dated January 2007. The private treatment records dated in January 2007 noted that the Veteran had severe endstage arthritis of the right hip and was a candidate for right total hip replacement. Although current medical records show the Veteran is status-post right hip replacement, the claimed right hip injury during service is not shown to have been verified for the purpose of linking any current arthritis or other right hip pathology to that event or other incident of this period of service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the Board finds that the Veteran has not presented credible lay assertions sufficient to establish a continuity of symptomatology for the purpose of linking the onset of the right hip arthritis to service. The Board has considered the Veteran's statements to the effect that his right hip problems first manifest in service as a result of an airplane crash. Although the Veteran is competent to testify as to his observations, his statements must be assigned limited probative weight when viewed in connection with the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evidence also reflects that there was neither a diagnosis of arthritis within the one year appeal period or symptoms that were early manifestations of arthritis. See 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). Therefore, service connection for a right disability is not warranted on a presumptive basis. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Accordingly, service connection for a right hip disorder must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a right hip disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs