Citation Nr: 1334919 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-30 906A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right hip disability, to include as secondary to service-connected low back and bilateral knee disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1967 and from October 1981 to November 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By this rating action, the RO, in part, denied service connection for a right hip disability. The Veteran appealed this rating action to the Board. In December 2011, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2013). The requested opinion along with a supplemental opinion has been provided and associated with the Veteran's VA claims folder. The VHA opinion was provided to the Veteran and his representative, and he was afforded 60 days to provide additional argument or evidence. The Veteran, through his representative, responded with additional argument. In March 2012, the Board remanded the issue on appeal to the RO for additional development. The requested development has been completed and the matter has returned to the Board for appellate consideration. FINDING OF FACT A chronic right hip disability, to include degenerative joint disease, was not shown in service or within a year of service discharge in July 1967 or November 1992; and, the preponderance of the evidence fails to establish an etiological link between the Veteran's diagnosed degenerative joint disease of the right hip is etiologically related to his active service or by his service-connected bilateral knee and low back disabilities. CONCLUSION OF LAW A right hip disability was not incurred in service, may not be presumed to have been incurred in service, and is not causally related to or aggravated by the service-connected bilateral knee and low back disabilities. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in July 2006 and March 2012 of the criteria for establishing service connection on a direct and secondary basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. Nothing more was required. Although the Veteran was not provided complete notice until after adjudication of the claim in November 2006, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 39 (1993). The Board notes that following the provision of the required notice, the RO readjudicated the claim in a February 2013 Supplemental Statement of the Case based upon all evidence of record before the case was returned to the Board. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim of entitlement to service connection for a right hip disability, to include on a secondary basis and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bernard, supra. The RO obtained his service treatment and personnel records as well as identified VA treatment records. Indeed, the Board remanded the claim to the RO to have it obtain outstanding VA treatment records. Such records were added to the Veteran's Virtual VA electronic claims file and were addressed by the RO in its February 2013 SSOC. As such, the Board finds that the requested development in its March 2012 remand directives has been completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Additionally, as discussed above, an opinion was obtained from a VHA medical expert in October 2011. A VA Board-Certified Orthopaedic Surgeon reviewed the claims file, considered, the Veteran's lay history and rendered an appropriate opinion based on the questions presented to him by the Board. This opinion is adequate for decision-making purposes, as it included a full review of the Veteran's claims files, is supported by sufficient detail, and refers to specific documents and medical history, as well as the Veteran's statements regarding what he believes was the onset of his right hip disorder, and provides a complete rationale for the opinion stated which is supported by the evidence of record. It is more than adequate. A copy of the opinion was presented to the Veteran and his representative, who were provided an opportunity to respond. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue being decided herein has been met. 38 C.F.R. § 3.159(c)(4) (2013). II. Laws and Regulations With respect to the claim for service connection for a right hip disability, the Veteran maintains that it is secondary to his service-connected bilateral knee and low back disabilities. See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in May 2007. He does not necessarily argue that his right hip problems are related to his active service. However, when determining whether service connection is warranted, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The theories of direct and secondary service connection will therefore be considered and addressed. Under the relevant laws and regulations, 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 (West 2002). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2013); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran currently has a right hip disability, namely advanced arthritic changes of the right hip. (See May 2007 VA x-ray of the right hip). He is also service connected for arthritis of the lumbar spine and both knees. Thus, the crux of the Veteran's claim hinges on whether his currently diagnosed right hip arthritis has been caused or aggravated by his service-connected bilateral knee and low back disabilities, as he has alleged, or is otherwise etiologically related to a period of military service. The Board will discuss the secondary and direct service connection theories separately in the paragraphs below. In January 2008, a VA examiner indicated that due to a lack of literature relating hip disabilities to knee disabilities, he could not offer a positive opinion without resort to speculation. This opinion is deemed inadequate as there was little basis for its rationale. Jones v. Shinseki, 23 Vet. App. 382 (2010) (indicating that the examiner must explain why the requested opinion would be speculative before the Board could rely on such a conclusion.) Indeed, the non-conclusive opinion appears to have been based on the solely on the finding that arthritis in the hips is prevalent in the aging population (affected nearly 80 percent of individual in the Veteran's age group (the Veteran was in his mid-sixties at the time of the January 2008 opinion). No consideration was given to the Veteran's reported 10-year history of hip problems, to include his history of gait disturbance and giving out. The VA examiner also failed to address whether it was as likely as not that veteran's right hip disability was caused or aggravated by his lumbar spine disability. An opinion from a VHA expert was obtained in October 2011. Along with a November 2011 supplemental statement, the medical expert concluded that the Veteran's right hip arthritis was a "disease of life," and that it was unrelated to his active service or his service connected orthopedic disabilities. A medical consultant for the AMC agreed with the findings of the VHA expert and provided her own report. See Report dated in February 2013. Both physicians determined that x-rays of the right hip taken in May 2007 were consistent with "advanced arthritic changes of the right hip." Further, while it was noted that the Veteran's degenerative spine disability could affect the nerves that were responsible for innervating the hip musculature and, in turn, provide the sensation of the hip joint "'giving out,'" both examiners unequivocally concluded that there was no medical documentation in the [Veteran's] record of hip joint subluxation or dislocation (i.e., coming out of its socket). The February 2013 examiner also commented that the clinical finding of "'subluxation with high-riding position of the femoral head'" noted on the May 2007 x-ray of the right hip was a wearing away (or flattening) of the superior aspect of the acetabular cup---a clinical finding commonly seen in individuals with degenerative hip joints. She added that from a clinical standpoint, degenerative joint disease was caused by wear and tear on a joint and was a slow deterioration of the cartilage and subchondral bone within the acetabular cup and femoral head. It was a process that was often independent of trauma, injury or an event. Both examiners collectively agreed that degenerative arthritis was a very common problem with aging and prevalent in the Veteran's age group (60s). The VHA examiner emphasized that there was no evidence of a causal relationship between the Veteran's right hip degenerative joint disease and his bilateral knee and low back disorders. Further, while the bilateral knee and low back disorders could potentially exacerbate the right hip disability, he clearly indicated that there would be no permanent aggravation. The AMC expert agreed. In essence, the VHA and AMC medical experts concluded that the Veteran's complaints of his right hip "giving out" was the result of an intrinsic hip pathology. Overall, the examiners uniformly concluded that there was no evidence in the record, or scientific evidence based literature or study, that linked degenerative disease process of a hip with back and knee arthritis. It was their conclusion that it was less likely than not that the claimed right hip condition was proximately due to or aggravated by the service-connected knee and low back disabilities. The Board turns to consideration of possible entitlement to service connection for the right hip arthritis on a direct-incurrence basis, but finds the claim lacking in this respect as well. There is no objective indication of any chronic right hip disability during military service. The record also fails to show by objective evaluation that he manifested any arthritis of the right hip to a degree of 10 percent by July 1967 or November 1992 (within the first years following his active duty service discharge in July 1967 or November 1992). The first recorded diagnosis of any right knee disorder is not reported until approximately 2007, approximately 15 years after service discharge in 1992. In view of the absence of any right hip pathology in service or within a year of service discharge in 1992, the above-cited clinicians opined that it was less likely than not that the Veteran's right hip disability was related to military service. Consideration to the Veteran's personal assertion that there is a relationship between his right hip disability and his service connected disabilities of the knees and low back. However, while 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, orthopedic disabilities, including arthritis, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Degenerative joint disease is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that X-ray and MRI studies and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as pain, giving out, or an altered gait, there is no indication that the Veteran is competent to link his current diagnosis of degenerative joint disease of the right hip to a service-connected disability or to his active military service. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board accords great probative weight to the VHA and AMC clinician's opinions since they were based on an accurate factual premise, and offer clear conclusions with supporting data, and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). These opinions are against the claim and are uncontroverted. The preponderance of the evidence is against the claim. ORDER Service connection for a right hip disability, to include as secondary to service-connected bilateral knee and low back disabilities is denied. ___________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs