Citation Nr: 1333837 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-21 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left hip disability, to include as secondary to a service-connected left ankle disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from April 1967 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the claims for entitlement to service connection for chronic lumbar strain, cervical degenerative disease, and left knee chondromalacia patella were granted in a February 2013 rating decision, and the Veteran has not appealed either the evaluations or effective dates established. See Barrera v. Gover, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, these issues are not before the Board and are deemed moot. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in July 2010 before the undersigned. A copy of the transcript has been associated with the claims file. When this case was most recently before the Board in September 2012, it was remanded for additional development; it has since been returned to the Board for additional appellate action. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. No disease or chronic symptoms of degenerative joint disease of the left hip or other left hip disability were manifested during service. 2. The Veteran did not continuously manifest symptoms of degenerative joint disease of the left hip or other left hip disability in the years after service. 3. Degenerative joint disease of the left hip was not manifested to a degree of ten percent within one year of service separation. 4. Degenerative joint disease of the left hip is not caused by any in-service injury or event and is not related to active service. CONCLUSION OF LAW Service connection for a left hip disability to include degenerative joint disease of the left hip is not warranted on a direct or secondary basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created and are codified as amended at 38 C.F.R. § 3.159 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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 that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1) (2013). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO sent the Veteran a letter in September 2006, indicating the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence. The letter also informed the Veteran of the criteria of the applicable disability ratings and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. Based on this evidence, the Board is satisfied that the Veteran had actual knowledge of what was necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim at this time. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's service treatment records, pertinent post-service medical records, VA examination reports, and statements and testimony from the Veteran. Specifically, the Veteran was afforded a VA examination in January 2013. The Board finds that the VA examination and opinion are adequate; they were a thorough and contemporaneous examination of the Veteran. Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). The examination is adequate because the examination was performed by a medical professional based on review of claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner considered the Veteran's service treatment records and provided a medical opinion as to whether the claimed disability was related to active service. Neither the Veteran nor his representative has challenged the adequacy of the examination obtained for the issue on appeal. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not indicated that he has any further evidence to submit to VA, or that he is aware of any evidence which VA needs to obtain. The file contains no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, and made reasonable efforts to obtain, all evidence that might be relevant to the issue herein decided, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2013). II. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. During the pendency of this appeal, the provisions of 38 C.F.R. § 3.310 were revised. Under this provision, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected as well. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a) (effective prior to and from October 10, 2006). The Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Effective on October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." The former paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added. The new provisions of 38 C.F.R. § 3.310 (b) indicate that "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities 38 C.F.R. Part 4 and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level." The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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 Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Background Information The Veteran asserts that his left hip disability, diagnosed as left hip degenerative joint disease (DJD), is due to a documented in-service motorcycle accident or, alternatively, is due to his service-connected left ankle injury. Service connection for residuals of left ankle injury was granted in July 1973. VA treatment records and examinations show current diagnoses of left hip DJD. Therefore, the question that remains is whether or not the left hip DJD is related to the Veteran's active duty service or to his service-connected left ankle disability. At the outset, the Board notes that the Veteran's service treatment records do not show complaints of, treatment for, or diagnoses of a left hip disability. In response to his claim for a left ankle disability, the Veteran was afforded an orthopedic examination in June 1973 in which he did not report any symptoms with his left hip. The Veteran filed the instant claim for service connection in July 2006. The Veteran was afforded a VA examination in October 2006 in which he reported pain in his right hip but not his left hip. The VA examiner opined that the right hip pains were more likely than not related to strains and that his left hip condition was less likely than not related to his left ankle injury. The Board notes that no diagnosis was provided for the left hip. The Board found this examination and opinion inadequate for adjudication purposes. As stated above, the Veteran provided testimony before the undersigned in July 2010. The Veteran stated that he sustained injuries to his left hip at the same time he sustained the injury to his service-connected left ankle disorder. He testified that he had continuous problems with his left hip since he was involved in the aforementioned in-service motorcycle accident in 1968. In response to the Board's October 2010 remand, the Veteran was afforded a VA examination in December 2010 in which he reported injuring his left hip in an in-service motorcycle accident in 1967 or 1968; he did not recall being treated for anything other than abrasions. The VA examiner diagnosed left hip DJD. The examiner opined that the Veteran's left hip condition was not due to military service nor to the motorcycle accident; the examiner could find no evidence of any treatment following a motor vehicle accident. The examiner also stated that there was nothing in the current orthopedic literature demonstrating that an intrinsic condition within an ankle joint would cause an intrinsic condition of the hip; therefore, the Veteran's current left hip condition was not secondary to the service-connected left ankle condition. There was also no evidence indicating aggravation of the left hip related to neither military service nor the service-connected left ankle condition. The Board found this examination and opinion inadequate for adjudication purposes. In response to the Board's September 2012 remand, the Veteran was afforded a VA examination in January 2013 in which he reported left hip pain after his in-service motorcycle accident in 1968 and that he had intermittent pain in the hip since that time. The VA examiner diagnosed mild left hip degenerative disease. The examiner opined that it was less likely as not that the current left hip condition was caused by or the result of active military service. The examiner stated that no hip conditions were found in the service medical records with regard to the left hip; that the Veteran reported that this was associated with his motorcycle accident; however contemporary medical reports indicated no hip condition. The examiner also stated that the Veteran's sacroiliac (SI) joint pain which was associated with his service-connected lumbar condition was probably the pain referred to by the Veteran with regard to his active duty time; the separation physical indicated no hip conditions. The examiner also opined that it was less likely as not that the left hip condition was caused by or the result of the above-noted service-connected conditions. The examiner stated that he knew of no medical authority or peer-reviewed medical literature which supported the contention that either the left ankle residual or the chronic lumbar strain could be causative to or aggravate DJD of the bilateral hip. The Veteran's gait was biomechanically normal and his DJD of the left hip was no worse than anticipated based on age alone. IV. Analysis After a careful review of the Veteran's claims file, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a left hip disability. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the left hip degenerative joint disease did not manifest in service or to a compensable degree within one year of service separation and is not otherwise related to active service. The Board finds the weight of the competent and credible evidence shows that the Veteran did not have chronic symptoms of a degenerative joint disease or other disability of the left hip in service or continuous symptoms after service. First, as noted above, there is no medical documentation of any in-service treatment or diagnosis of a left hip disability during service or shortly thereafter. Second, the Veteran filed his claim for service connection for a left hip disability in 2006, over 30 years after service, and the first evidence of a diagnosis of degenerative joint disease of the left hip was upon VA examination in December 2010. The Veteran was afforded a VA examination in October 2006 and he denied left hip symptoms. A left hip disability was not diagnosed. There is no medical treatment for a left hip disability from the time of service separation in January 1972 to December 2010. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). In addition, the third factor weighing against the claim is that there is only one probative medical opinion on record as to medical nexus, and this opinion is against the Veteran's claim. That is, the Board finds the January 2013 VA examination and opinion probative and persuasive. A veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). That has not been shown in this case. To the contrary, the only probative opinion on file was detailed in its rationale for finding that the Veteran's left hip disability was less likely than not related to the Veteran's military service and was less likely than not related to his service-connected left ankle disability. To this point, the January 2013 VA examiner considered the Veteran's statements as to the motorcycle injury in service, and the left hip injury and symptoms in service, and concluded that there was no relationship to service because there was no evidence of a left hip disability in service. The examiner also found that there was no diagnosis of a left hip disability shown by the contemporaneous medical evidence. The examiner attributed the left hip symptoms in service to the Veteran's lumbar spine disability. The examiner stated that the Veteran's DJD of the left hip was no worse than anticipated based on age alone. Therefore, the medical evidence from service and since service is against a finding that the left hip DJD is related to service or related to the Veteran's service-connected left ankle disability. The Board has also considered the Veteran's statements and assertions regarding his belief that his left hip disability is related to service or, alternatively, is related to his service-connected left ankle disability. With regard to consideration given to statements from the Veteran, it is noted that a layperson is competent to testify as to observable symptoms in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of arthritis in the left hip falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized medical training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. The Veteran is competent to testify as to when he recalls his symptoms beginning but without medical training he is not competent to diagnose his condition or to opine as to the etiology of his condition. Here, while the Veteran is competent to state when he believes that his left hip symptoms began, the Board finds that the Veteran's statements that the disability began during service are not credible because his own statements as to the onset of the left hip disability are inconsistent. As noted, in his October 2006 VA examination, the Veteran denied having left hip pain. The Veteran did not report left hip symptoms to his medical care providers during service or for years thereafter. In light of the fact that the Veteran did not assert that he had a left hip disability due to service or due to his service-connected left ankle disability until many years after service, the Board has to question the credibility of his contentions. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board finds that the Veteran's lay statements, while competent, are neither credible nor more probative than the medical and lay evidence generated at the time of service. Thus, the Veteran's statements are not credible and are not probative on the matter of continuity of symptoms or treatment since service. The Board finds that the weight of the competent and credible evidence establishes that the Veteran did sustain injuries in a motor vehicle accident in service but the extent of any injury to the left hip has not been established, he did not experience chronic left hip symptoms in service, and he did not experience continuous post service symptoms of a left hip disability to include degenerative arthritis. See 38 C.F.R. § 3.303(b). The medical evidence of record does not establish chronic symptoms in service or continuous symptoms after service. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.303(b) for chronic in service symptoms and continuous post service symptoms is not warranted. The Board finds that the weight of the competent and credible evidence establishes that the claimed degenerative arthritis of the left hip did not manifest within one year of service separation and first manifested many years after service separation. The first diagnosis of degenerative arthritis of the left hip based upon x-ray findings is upon x-ray examination in about 2010, over 30 years after service separation. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for a chronic disease manifested to 10 percent within one year from service separation is not warranted. Finally, the Board finds that the weight of the evidence demonstrates that the degenerative arthritis of the left hip is not caused by any in-service event or injury, is not related to service, and is not proximately due to or aggravated by a service-connected disability. The more probative evidence of record, specifically the January 2013 VA medical opinion, the service treatment records, and the post service medical evidence establish that the degenerative arthritis of the left hip did not first manifest in service and is not medically related to service. The Veteran's service treatment records do not contain any notation of a diagnosis of a left hip disability. A left hip disability was not shown until many years after the Veteran's latest period of active military service. The Veteran's post-service assertions as to continuity of symptoms and treatment since service are not credible. And finally, the only probative medical opinion of record is against a finding that the Veteran's left hip DJD is related to his military service or a service-connected disability. Thus, service connection for a left hip disability is not warranted on a direct or secondary basis. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a left hip disability. The claim must be denied. ORDER Entitlement to service connection for a left hip disability to include degenerative joint disease is denied. ______________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs