Citation Nr: 1334136 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-39 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for left and right hip disabilities, including as secondary to service-connected low back pain with degenerative disc disease, disc protrusion at L4-5 and disc desiccation at L4-5 and L5-S1. 2. Entitlement to a compensable rating for musculoligamentous strain of the left knee prior to March 6, 2012, a rating in excess of 10 percent from March 6, 2012, to June 26, 2012, a compensable rating from June 27, 2012 to December 17, 2012, and a rating in excess of 10 percent thereafter. 3. Entitlement to a compensable rating for musculoligamentous strain of the right knee prior to March 6, 2012, a rating in excess of 10 percent from March 6, 2012, to June 26, 2012, a compensable rating from June 27, 2012 to December 17, 2012, and a rating in excess of 10 percent thereafter. 4. Entitlement to a compensable rating for tendonitis of the left ankle prior to December 4, 2012, and a rating in excess of 10 percent thereafter. 5. Entitlement to a compensable rating for tendonitis of the right ankle prior to December 4, 2012, and a rating in excess of 10 percent thereafter. 6. Entitlement to a rating in excess of 20 percent for low back pain with degenerative disc disease, disc protrusion at L4-5 and disc desiccation at L4-5 and L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from November 1999 to July 2001. These claims come before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before a Veterans Law Judge (VLJ) during an October 2011 Board videoconference hearing. A copy of the hearing transcript has been associated with the claims file. In February 2012, the Board denied compensable ratings for left and right knee musculoligamentous strain and left and right ankle tendonitis. At that time, it remanded the issues of service connection for left and right hip disabilities and a rating in excess 20 percent for the Veteran's service-connected back disability for further development. In a February 2012 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision denying the increased rating claims and remanded the matters to the Board for further adjudication consistent with the Decision. In a December 2012 rating decision, the RO assigned ratings for left and right knee musculoligamentous strain of 10 percent effective March 6, 2012, 0 percent (noncompensable) effective June 27, 2012, and 10 percent effective December 18, 2012. It also granted ratings of 10 percent each for the Veteran's left and right ankle tendonitis effective December 4, 2012. These issues are thus characterized as on the title page. The matters of service connection for left and right hip disabilities and a rating in excess 20 percent for the Veteran's service-connected back disability have also been returned for further appellate consideration. In August 2013, the Veteran was informed that VLJ who conducted his October 2011 Board hearing was no longer employed by the Board. In September 2013, the Veteran informed VA that he did not wish to appear at another Board hearing. While additional VA treatment records were received subsequent to the agency of original jurisdiction's (AOJ's) most recent adjudication of the Veteran's service connection claim, no such records are pertinent to that issue. Thus, the Board may proceed with a decision on the merits without referring such evidence to the AOJ for initial review. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of increased ratings for musculoligamentous strain of the left and right knees, left and right ankle tendonitis, and the Veteran's back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran did not have a left or right hip disability at the time of his April 2010 claim for benefits and has not had any such disability at any time since. CONCLUSION OF LAW The criteria for service connection for left and right hip disabilities, including as secondary to service-connected low back pain with degenerative disc disease, disc protrusion at L4-5 and disc desiccation at L4-5 and L5-S1, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). No disability at issue in this case is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in his testimony during his October 2011 Board hearing, the Veteran asserts that he has a bilateral hip disability as the result of jumping from airplanes in service in the Airborne Infantry, as every time he hit the ground his hip joints were affected. He stated that he was in constant pain, mainly with sitting, and believed that the back pain added to his hip pain, and that the two were connected. He asserted that his back pain radiated into his hips. He further stated that he first complained of hip problems to a medical professional in November 2002. However, considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be denied. Initially, while service personnel records reflect that the Veteran was awarded the Parachutist Badge, service treatment records reflect no complaints or findings related to either hip, even though they document extensive treatment for back problems. A March 2001 Medical Board examination reflects that, while the Veteran was noted to have had back problems including degenerative joint disease, no hip problems were noted; at that time, while the Veteran reported a history of back problems, he reported not having and never having had arthritis, impaired use of the legs, or swollen joints. In April 2001, the Veteran reported chronic back pain, including degenerative joint disease, as well as several other medical issues, but no problems related to the hips. Likewise, in August 2001, the Veteran filed a claim for service connection for chronic mechanical low back pain with degenerative joint disease, and on November 2001 VA examination also complained of knee and ankle pain; he did not file any claim of service connection for a hip disability until April 2010, and the earliest medical record reflecting any complaints related to the hips is a VA treatment record dated in March 2010, providing evidence against this claim. However, even if the Board were to find credible the Veteran's assertions of hip pain beginning in or shortly after service, the weight of the evidence in this case demonstrates that the Veteran has not, at any time pertinent to his April 2010 claim for service connection had a hip disability. The most probative evidence on the question of whether there exists a current hip disability is the February 2012 report of a VA physician. After examining the Veteran and reviewing the record, the physician determined that the Veteran did not have and had never had a hip condition. At that time, the Veteran reported pain in his hips, but denied any specific injury to the hips, and stated that they just began aching. He reported that they began aching more over the past few years, but that such pain began in 2002, and he was unable to explain further. He denied specific treatment for his hips, and reported his main symptoms as stiffness and achiness after prolonged sitting. He reported that in colder weather he tried to stay indoors because he felt it throughout all his joints. He also reported achiness with prolonged sitting, but being able to sit for 30 to 45 minutes. On range of motion testing, flexion was normal, including on repetitive use testing, with no objective evidence of pain. Muscle strength was full on testing and there was noted not to be any functional loss or impairment of either hip. X-ray examination revealed that the imaged bones and joints were normal with no soft tissue abnormality, and the impression was normal examination. The examining physician concluded that the evidence was less likely than not indicative of a chronic disabling condition, and therefore the Veteran's claimed bilateral hip disability was less likely than not related to service, including his service-connected back disability. The examiner noted that the Veteran denied specific injury to the hips and stated that he did not know what happened to his hips, and reported symmetrical aching and stiffness over the years since 2002. The examiner stated that, in his opinion, the report of a magnetic resonance imaging (MRI) of the back did not support an effect to the Veteran's hips. The examiner noted that the Veteran denied specific treatment for the hips and had worked multiple medium to heavy labor jobs since leaving service. The examiner further stated that, with recurrent squatting, the Veteran reported bilateral knee discomfort but not hip problems. The examiner further explained that the Veteran alluded to an arthritic type condition rather than a specific injury when he described problems in cold weather, but that X-rays of his hips were normal, providing evidence that support the examiner's position. The Board finds the VA physician's February 2012 report and opinion to be persuasive. The physician had appropriate expertise, reviewed the claims file, and thoroughly examined the Veteran. The opinion is supported by X-ray findings showing no abnormality of the hips, the examiner's review of an MRI of the Veteran's back, and a completely normal physical examination of the hips. Furthermore, there is no competent evidence outweighing this February 2012 VA report. While the record reflects that the Veteran has subjectively complained of hip pain, as reflected in his October 2011 hearing testimony, the February 2012 VA examination report, and VA treatment records dated from October 2011 to February 2012, there has been no medically diagnosed disability. In this regard, a January 2012 VA treatment record reflects that the Veteran's hips moved well with no heat or swelling to them. The Board notes that on VA treatment in May 2010, the Veteran was noted to have had hip flexion inhibited by pain bilaterally at 3+/5. However, such findings were made in connection to the Veteran reinjuring his back the week before, and numbness, tingling and pain radiating down the leg, worse on the right, and sharp pain on the anterior thigh; no diagnosed hip disorder was noted. In this regard, the Board notes that the Veteran is currently separately service connected for right leg radiculopathy associated with low back pain, degenerative disc disease, disc protrusion L4-5, and disc desiccation L4-5 and L5-S1. The Board also notes that the Veteran is competent to report matters within his own personal knowledge, such as having pain in his hip area. See Layno, 6 Vet. App. at 469. Also, lay evidence may be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins). However, in this case, the determination of whether the Veteran has a medical disorder of the hips is one that is medical in nature, and requires medical expertise to make. Therefore, the Veteran is not competent to diagnose a hip disorder. Moreover, even if the Veteran were in some way competent to make any such determination, the Board would find such determination to be greatly outweighed by the expert medical opinion of the February 2012 VA examining physician. Thus, even assuming that the Veteran's reports of pain in the area of his hips are credible, the Veteran's statements are simply outweighed by the medical evidence cited above on this medical issue, and the evidence does not reflect a currently diagnosed hip disability. It is important for the Veteran to understand that even if the Board assumes that the Veteran has this disability at this time, the medical evidence cited above would also provide evidence against a finding that the Veteran's alleged bilateral hip disability is related to service. The service, post-service, and VA medical opinion cited above would all provide highly probative evidence against such a finding, outweighing the Veteran's contentions. As the weight of the evidence reflects that the Veteran did not have a left or right hip disability at the time of his April 2010 claim for benefits and has not at any time since, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, service connection for left and right hip disabilities, including as secondary to service-connected low back pain with degenerative disc disease, disc protrusion at L4-5 and disc desiccation at L4-5 and L5-S1, 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. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in April 2010, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical treatment records have been obtained. Also, the Veteran was provided a VA examination in February 2012. This examination and its associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by a physician with appropriate expertise who reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2013); Barr, 21 Vet. App. 303. Moreover, the RO has substantially complied with the Board's February 2012 remand instructions. The AOJ has obtained current VA treatment records from the Omaha and Lincoln, Nebraska, VA Medical Centers, and, as noted above, the Veteran has been provided an adequate VA examination that provided sufficient information and adequately addressed the Board's questions. Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the October 2011 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed hip disabilities, specifically regarding the date of their onset and how the Veteran believed his problems were related to service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for left and right hip disabilities, including as secondary to service-connected low back pain with degenerative disc disease, disc protrusion at L4-5 and disc desiccation at L4-5 and L5-S1, is denied. REMAND Regarding the issues of increased ratings for musculoligamentous strain of the left and right knees and left and right ankle tendonitis, rating decisions dated in November 2011 and December 2012, which assign increased ratings for these disabilities, list evidence pertinent to these issues that is not associated with the claims file. This includes the following: "VA Form 21-4138 Claim for benefits received June 13, 2012"; "VCAA Notice Response received June 28, 2012"; "Statement in support of your claim for benefits, received December 4, 2012"; "Statement of claim for increase in your service connected bilateral knees including treatment records from the VA Nebraska-Western Iowa Health System, dated February 21, 2012 to June 12, 2012, received on July 10, 2012"; and "VA examination, VA Nebraska-Western Iowa Health System, dated December 18, 2012." Such evidence must be associated with the claims file for review by the Board. Regarding the issue a rating in excess of 20 percent for the Veteran's back disability, subsequent to the AOJ's most recent adjudication of this claim in a March 2012 supplemental statement of the case, additional pertinent VA treatment records were associated with the claims file. Such records include a June 2012 record indicating that the Veteran's lumbar flexion was limited so that he could only touch his knees, and an August 2012 VA record indicating that the Veteran called and complained of increased back pain, with pain worse when bending at the waist. The AOJ has not yet reviewed such pertinent records. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2013). Moreover, such evidence indicates a possible worsening in the Veteran's back disability since his most recent VA examination in February 2012. Therefore, the Veteran should be afforded a new examination of his back disability as well. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); VAOPGCPREC 11-95 (1995). The Veteran himself is asked to obtain as many of these medical records as he can (and/or indicate they are not available) and submit them to the VA in order to expedite his case. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all records pertinent to the claims on appeal, including the Veteran's written statements received in June 2012, July 2012, and December 2012, and the VA examination report dated in December 2012, which are listed above. 2. Obtain all outstanding VA medical records related to the Veteran's disabilities on appeal from the VA Nebraska-Western Iowa Health Care System, dated from November 2012 to the present. All records and/or responses received should be associated with the claims file. 3. Schedule the Veteran for a VA spine examination to determine the current severity of his service-connected low back pain with degenerative disc disease, disc protrusion at L4-5 and disc desiccation at L4-5 and L5-S1. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include those required to objectively document neurologic manifestations of the Veteran's service-connected disorder must be accomplished. As to all information requested below, a complete rationale for all opinions must be provided. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the thoracolumbar spine, and determine range of motion, in degrees, noting by comparison the normal ranges of motion of the spine. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's spine disorder, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's spine disorder could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Any neurological manifestations of the Veteran's service-connected spine disorder must be identified, including any numbness of the legs. It must also be noted whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months. 4. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs