Citation Nr: 1333892 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-27 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right hip/torso disability, to include as secondary to service-connected right knee internal derangement. 2. Entitlement to service connection for a left hip/torso disability, to include as secondary to service-connected right knee internal derangement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to April 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in August 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In September 2009, March 2011, August 2012, and May 2013 the Board remanded the appeal for further development, and it once again returns to the Board for appellate review. In his August 2006 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge, sitting at the RO. This hearing was scheduled for January 2007, but the Veteran did not attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). As mentioned in the Board's March 2011, August 2012 and May 2013 remands, in January 2011 correspondence the Veteran raised a claim for entitlement to service connection for bilateral hearing loss. The Board referred this matter for agency of original jurisdiction (AOJ) adjudication in March 2011, August 2012, and May 2013. The record before the Board at this time continues to show that this issue has not been adjudicated by the AOJ/RO, and therefore, the Board does not have jurisdiction of it. The issue of entitlement to service connection for bilateral hearing loss is once again referred to the RO for appropriate action. FINDINGS OF FACT 1. Right hip trochanteric bursitis was not present during service, and it has not been shown to be causally or etiologically related to the Veteran's military service, or to a service-connected disability. 2. A left hip disability was not present in service and the most probative evidence of record reflects that the Veteran does not have any current let hip disability which is causally or etiologically related to active service or a service-connected disability. CONCLUSIONS OF LAW 1. Right hip trochanteric bursitis was not incurred in active service, nor was it proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2013). 2. Left hip trochanteric bursitis was not incurred in active service, nor was it proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Letters dated in May 2003, July 2003, October 2009, and December 2009 satisfied the duty to notify provisions. The October 2009 and December 2009 letters included proper notice to the Veteran regarding the regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the October and December 2009 letters, which contained the notice regarding disability ratings and effective dates, were sent after the initial unfavorable decision by the Agency of Original Jurisdiction (AOJ) in August 2003, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claims most recently in an August 2013 supplemental statement of the case. As such, there was not prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). VA examinations were conducted in July 2003 and April 2011, and VA opinions were obtained in September 2012 and August 2013. The Veteran has not argued, and the record does not reflect that, when considered together, these examinations or opinions were inadequate for rating purposes. The Board finds that collectively the examinations and opinions were adequate because they were based on an examination of the Veteran, to include discussion of his complaints and symptoms, and contained medical opinions with adequate rationales predicated on a thorough review of the claims file. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, and as discussed further below, the Veteran indicated that he received private treatment from Dr. R.F. However, despite March 2011 and August 2012 letters being sent to the Veteran requesting authorization for such private records, the Veteran did not respond. Thus, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its September 2009, March 2011, August 2012, and May 2013 remands. In addition to seeking an appropriate VA examination to determine the nature and etiology of any hip disability, the September 2009 remand specifically instructed the RO/AMC to send the Veteran corrective notice informing him of the requirements for establishing entitlement to service connection for a bilateral torso disability on a secondary basis to include based upon aggravation. The March 2011 and August 2012 Board remands instructed the RO/AMC to obtain necessary authorization and identifying information from the Veteran regarding his private treatment from Dr. R.F.. In addition, the March 2011 remand instructed the RO/AMC to schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his bilateral hip disorder. The August 2012 remand instructed the RO to provide the claims file to the April 2011 VA examiner and obtain an appropriate opinion as to whether any currently diagnosed bilateral hip disorder was caused or aggravated by the service-connected right knee disability. The May 2013 remand instructed the RO/AMC to obtain an opinion from the September 2012 VA examiner regarding whether the Veteran's right hip trochanteric bursitis is caused or aggravated by the right knee disability and to reconcile the January 2002 findings of left hip arthritis with the lack of a current diagnosis of arthritis. The Appeals Management Center (AMC) sent the Veteran letters in October 2009 and December 2009 which provided the requirements for establishing entitlement to service connection for a bilateral hip/torso disability on a secondary basis to include based upon aggravation. The AMC also sent the Veteran letters in March 2011 and August 2012 requesting authorization to obtain private treatment records from Dr. R.F. The Veteran did not respond to the letters and he did not supply the necessary authorization forms in order for VA to obtain these records. The Board finds that the RO has complied with the Board's instructions and that together, the April 2011 VA examination and the September 2012 and August 2013 VA opinions reports substantially comply with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the holding in Allen; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a right or left hip/torso disability on either a direct or secondary basis. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (finding that when determining service connection, all theories of entitlement, direct and secondary, must be considered). The Veteran's service treatment records, to include the separation examination, are absent for complaints, treatment, findings, or diagnoses of any right or left hip problems. Thus, there was no showing of any right or left hip/torso disability during the Veteran's military service. The post-service medical evidence includes a January 2002 VA X-ray study, which reflects minimal to mild left hip osteoarthritis. An April 2011 VA examination report notes that the Veteran complained of pain in the trochanteric region at night. X-ray studies revealed normal right and left hips. The diagnoses included mild right trochanteric bursitis and normal left hip. A September 2012 VA examination report notes that X-rays studies of the right and left hips were normal. It was noted that in April 2011 the Veteran was diagnosed with mild right trochanteric bursitis and normal left hip. The examiner opined that it is less likely as not that any currently diagnosed bilateral hip disorder was either caused or aggravated by the Veteran's service-connected right knee disability. Regarding the left hip, the examiner stated that no disability exists. Regarding the trochanteric bursitis of the right hip, the examiner stated that this is not caused or aggravated by the Veteran's service-connected right knee disability. The examiner explained that there is no body of scientific knowledge that substantiates the claim that a right knee degenerative joint disease causes or aggravates right hip trochanteric bursitis. An August 2013 VA examination report (authored by the same examiner who provided the September 2012 examination report) notes that the examiner opined that it is less likely as not that the Veteran's right hip trochanteric bursitis is caused or aggravated beyond its normal progression by an altered gait produced by his service-connected right knee disability. The rationale includes the lack of a body of scientific knowledge that supports the notion that an altered gait produced by a right knee disability can cause or aggravate right hip trochanteric bursitis. The examiner further stated that April 2011 X-rays of the left hip were normal. The examiner opined that although the Veteran was diagnosed with mild osteoarthritis of the left hip via X-ray in 2002, the VA examiner opined that X-ray findings can evolve over time, especially over a period of years, and various readers can read the same X-ray image differently. Moreover, the same reader can read the same image differently on differing occasions. The examiner firmly stated that the most recent X-ray of the left hip shows no obvious degenerative joint disease, osteoarthritis, or any other appreciable left hip disorder. With respect to the claim for service connection for right and left hip disabilities on a direct basis, the Board notes that the service treatment records do not reflect any findings or complaints related to either hip. The separation examination also does not reflect any such findings or complaints. Indeed, the Veteran does not contend that he had right or left hip problems during service. Therefore, the Board finds that right hip trochanteric bursitis, or any other disability of the right and/or left hip was not present during service. The post-service medical evidence first documents right hip trochanteric bursitis as being present in April 2011, which is over 30 years after discharge from service. Moreover, the Board finds that the preponderance of the post-service medical evidence reflects that the Veteran does not have any left hip disability whatsoever. In this regard, although a diagnosis of minimal to mild osteoarthritis of the left hip was found in January 2002, the April 2011 VA examiner and the September 2012/August 2013 VA examiner determined that current X-rays do not reflect any arthritis of the left hip. Moreover, no left hip disability whatsoever was diagnosed by any of these examiners. The August 2013 examiner opined that although arthritis was found by the health care provider who read the January 2002 left hip X-ray, different readers at different times, or even the same reader at different times, can come to different conclusions reading the same X-ray. Therefore, although the January 2002 reader of the January 2002 left hip X-ray found arthritis, no arthritis has been found since, and no current arthritis is present. In any event, if X-ray evidence of left hip arthritis was ever found, it is not documented until over 25 years after discharge from service. The Veteran also does not allege that he has had right or left hip problems continuously since service, and there is no medical evidence showing that either the current right hip trochanteric bursitis or any left hip disability is in any way related to military service. Instead, the most probative medical evidence suggests that the Veteran has no left hip arthritis or any other disability of the left hip. Moreover, the Veteran has not provided any argument regarding the manner in which either claimed hip disability is allegedly related to service. As such, there is no basis on which to grant service connection on a direct basis. In making this determination, the Board notes that the Veteran has asserted he suffers from a left hip disability. Complaints, however, are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). The Board has considered the Veteran's arguments. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report a contemporaneous medical diagnosis and is competent in describing symptoms that support a later diagnosis by a medical professional, whether or not a Veteran has a current disability of arthritis, and whether or not trochanteric bursitis of the right hip is etiologically related to active service, are questions that involve some degree of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). Here, there is no competent evidence from any health-care provider or X-ray findings during the period of the claim to sufficiently demonstrate that the Veteran has a current disability of left hip arthritis. To the contrary, the prior references to a diagnosis of arthritis of the left hip were expressly addressed by the August 2013 VA examiner, who ultimately concluded that a diagnosis of arthritis of the left hip could not be made. Finally, as discussed further below, although the Veteran has a diagnosis of right hip trochanteric bursitis, there is no competent evidence linking this disability to service. In light of the foregoing, there is no basis on which to grant the claims on a direct basis. With respect to the claims on a secondary basis, the Veteran contends that his right hip trochanteric bursitis and his left hip disability are due to his service-connected right knee disability. In support of his claim, he stated that his private doctors told him that his right knee had caused a "misalignment" of his hips, which he claims causes his hip pain. He also claims that his right knee arthritis has spread into his hips. However, none of the medical evidence of record supports such a theory. Specifically, the September 2012 and August 2013 VA examiner opined that there is no body of scientific knowledge that supports the claim that a right knee degenerative joint disease or an altered gait of a right knee causes right hip trochanteric bursitis. Moreover, the April 2011, September 2012 and August 2013 VA examiners did not diagnose the Veteran with left hip arthritis, and the August 2013 VA examiner specifically found that there is no disability, to include arthritis, of the left hip. The Board finds the September 2012 and August 2013 VA examiner's opinions to be adequately supported by the record. Notably, the August 2013 examiner stated that although the January 2002 X-ray study report indicates minimal to mild osteoarthritis, readers of X-ray studies can vary in their findings, and even the same reader can, on different occasions, read the same X-ray study differently. The examiner went on to state that the most recent X-rays from April 2011 do not show arthritis of the left hip. The Board finds that because there is no diagnosis of left hip arthritis during the pendency of the claim and because the April 2013 VA examiner adequately explained the January 2002 finding of left hip arthritis, the Board concludes that the Veteran does not have a current diagnosis of arthritis or any other left hip disability. Therefore, service-connection for a left hip disability on a secondary basis is not warranted. Additionally, the September 2012 and August 2013 VA examiner opined that the right hip trochanteric bursitis is not aggravated by the service-connected right knee disability, to include as due to an altered gait produced by the right knee disability. The examiner reasoned that this is so because current scientific evidence does not support such a theory of aggravation. With respect to the left hip, because the medical evidence supports the finding that there is no current disability of the left hip, there is no disability on which to base such a theory of aggravation. Therefore, the claims also fail on the aggravation prong of the secondary service-connection claim. In conclusion, although the Veteran has been shown to have right hip trochanteric bursitis, the Board finds that the Veteran's right hip trochanteric bursitis has not been shown to be related to service, or to his service-connected right knee disability. The service medical records are absent for any indications of right hip problems. Indeed, the Veteran does not allege that right hip trochanteric bursitis was present during service or ever since. Further, the most persuasive medical evidence indicates that the right hip trochanteric bursitis is less likely as not due to or aggravated by his right knee disability. With regard to the Veteran's lay assertions, the Board notes that the Veteran is competent to provide lay evidence concerning continuity of symptoms after service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although the Veteran might sincerely believe that his right hip trochanteric bursitis is related to his service or service-connected right knee disability and that he has a current diagnosis of left hip arthritis which is related to service or his service-connected right knee disability, the Board notes that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 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'). Therefore, although the Veteran is competent to report ongoing symptoms since service, right hip trochanteric bursitis was not actually found during service or until over 30 years later, and the Veteran is not competent to render a diagnosis of trochanteric bursitis of the right hip or arthritis of the left hip, nor is he competent to relate the etiology of either diagnosis to active service or to service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Court to remand to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses and cautioning that lay testimony that veteran suffered a particular illness, bronchial asthma, was not competent because matter required medical expertise); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (noting that veteran's statements were competent to describe the observable flatness of his feet); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Barr v. Nicholson, 21 Vet App 303, 308 -09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins). In this case, although the Veteran is competent to report that he experienced right and/or left hip/torso pain since service, he has not actually alleged such ongoing symptomatology. In any event, he is not competent to state that this symptomatology is trochanteric bursitis or arthritis, as that is a determination to be made through specialized testing performed by someone with medical expertise. Thus, the Board cannot assign any significant weight to the Veteran's lay assertions about a diagnosis regarding any current left hip disability or about the etiology of his currently diagnosed right hip disability. For the foregoing reasons, the claim for service connection for a right and left hip/torso disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a left hip/torso disability, to include as secondary to service-connected right knee internal derangement is denied. Entitlement to a right hip/torso disability, to include as secondary to service-connected right knee internal derangement is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs