Citation Nr: 1334936 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-11 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left hip disorder. 2. Entitlement to service connection for a right hip disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his friend ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from June 1986 until June 1990. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In pertinent part, the RO denied service connection for a right hip condition and a low back condition, and found that the claim for service connection for left trochanteric bursitis remained denied because the evidence submitted was not new and material. The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO in March 2012. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in February 2013 at which point the Board reopened the claim for a left hip disorder based on the submission of new and material evidence and was remanded the case for additional development. As was noted in the February 2013 Board decision/remand, with regard to the issues of service connection for a head trauma and a right shin condition, the Veteran limited his appeal to the right hip, left hip and lower back in his March 2010 VA Form 9 substantive appeal. As such, those claims are not currently before the Board. As will be discussed herein, with regard to the right hip issue, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the February 2013 remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); 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 (2002). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file shows VA treatment records dated from June 2008 through February 2013 which were considered by the RO in a May 2013 supplemental statement of the case. The issues of entitlement to service connection for left hip and low back disorders 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 While the Veteran has complained of experiencing right hip pain during service and after service, there is no competent medical evidence that the Veteran has, or ever has had, a right hip disorder. CONCLUSION OF LAW The criteria for service connection for a right hip disorder are not met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he developed a right hip disorder in service due to his in-service motor vehicle accidents. He reports that he was placed on light duty for as a result of his injuries and he coped with the pain with a regimen of Tylenol through service. Alternatively, he contends that a right hip disorder developed secondary to a left hip disorder. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Analysis Service treatment records show that the Veteran was involved in two motor vehicle accidents (in November 1986 and February 1987). Significantly, records from these two accidents show complaints of and treatment for the left side of the body (to include the left hip) but not the right side. The June 1990 discharge examiner found the Veteran's lower extremities to be normal. Immediately upon his discharge from service in June 1990, the Veteran submitted a claim for service connection for injuries sustained during his military service. In connection with this claim he was afforded a VA orthopedic examination in December 1990. At that time, the Veteran complained of pain in the left hip and right index finger. The Veteran also received a general VA examination in January 1991. At that time, the Veteran also complained of left hip and right finger pain. Neither the December 1990 nor the January 1991 VA examination reports showed any complaints or findings regarding the right hip. The Veteran first complained of a right hip disorder in June 2007. In connection with this claim the Veteran submitted several private treatment records dated through January 2007 showing complaints of and treatment for a low back disorder as well as complaints of bilateral hip pain but none of these records show a diagnosis of a right hip disorder. As above, in February 2013 the Board remanded the case for additional development. Specifically, the Board requested that the Veteran be afforded a VA examination of the hips to determine whether the Veteran suffered from right hip disorder. Pursuant to the February 2013 Board remand the Veteran was afforded a VA examination specific to the back and hips in February 2013. Upon physical examination of the hips it was noted that the Veteran had a normal for age bilateral hip joint examination with left trochanteric bursitis. VA treatment records dated through February 2013 also show complaints of and treatment for a low back disorder as well as complaints of bilateral hip pain but are negative for a diagnosis regarding the right hip. The Board observes that the Veteran has complained of a right hip disorder and has asserted that this began while on active duty. As a layperson, the Veteran is competent, as a layperson, to report that about which he has personal knowledge-to include his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Even if the Veteran experienced right hip problems in service and continues to experience such problems after service, as alleged, the Board points out that pain joint pain, alone, without evidence of underlying pathology, does not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); see also Evans v. West, 12 Vet. App. 22, 31-32 (1998). Significantly, none of the medical evidence of record reflects a finding or diagnosis of a current right hip disorder-much less, a disorder to have had its onset during military service-and neither the Veteran nor his representative have presented or identified any such evidence or opinion. In short, there is no medical evidence whatsoever indicating that the Veteran currently has a right hip disorder during the appeal period. Hence, the Board has no alternative but to evaluate the claim on the basis of the evidence of record. As indicated, this evidence simply is not supportive of the claim for service connection. In addition to the medical evidence, in adjudicating this claim, the Board has considered the assertions of the Veteran and his representative; however, such evidence provides no basis for allowance of the claim. As indicated above, this claim turns on the fundamental medical matter of current disability-here, one requiring a medical diagnosis-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.303. Thus, where, as here, competent evidence does not establish the existence of the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353; Brammer, 3 Vet. App. at 225. In the instant case, the claim for service connection a right hip disorder must be denied, because the first essential criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection-has not been met with regard to this claim. For all the foregoing reasons, the Board finds that the claim for service connection a right hip disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. An August 2007 pre-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. These letters also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA medical records, private treatment records, and the report of a February 2013 VA examination. Although, as noted below, records from St. Mary's hospital were not obtained, the Board finds that they are not required in this decision as the Veteran does not currently have a diagnosed right hip disorder. The Board also finds that no further RO action, prior to appellate consideration, is required. The Veteran has not identified any additional records that are relevant to his rating claims on appeal, and the Board finds that no additional RO action to further develop the record in connection with any matter herein decided, prior to appellate consideration, is required. In particular, the Board notes that the Veteran has-been afforded an adequate VA examination in February 2013, the report of which reflects consideration of all relevant evidence of record which included a review of x-rays taken at the time of the two traumatic incidents, as well as a physical examination of the Veteran. . In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Service connection for a right hip disorder is denied. REMAND As was noted in the February 2013 Board remand, the Veteran contends that his left hip disorder developed in service due to his in-service motor vehicle accidents. He also claims his low back disorder developed in service due to those accidents. Alternatively, he contends that the low back disorder developed secondary to the left hip disorder. He has also provided reports of chronic left hip pain and low back pain since his accident in service. As above, service treatment records show that the Veteran was involved in two motor vehicle accidents (in November 1986 and February 1987). Significantly, records dated in November and December 1986 after the first motor vehicle accident show complaints of and treatment for left hip pain as well as minor contusions to the low back. However, the June 1990 discharge examiner found the Veteran's spine and lower extremities to be normal. Immediately upon his discharge from service in June 1990, the Veteran submitted a claim for service connection for injuries sustained during his military service. In connection with this claim he was afforded a VA orthopedic examination in December 1990. At that time, the Veteran complained of continuing pain at the left hip. The examiner found the left hip to be tender at the greater trochanter. X-rays showed the pelvis and hip joints were "okay." The examiner found the Veteran to have a left hip with a history of contusion and ecchymosis in service, with continuing symptoms since then diagnosed as trochanteric bursitis. The Veteran also received a general VA examination in January 1991. At that time, the Veteran reported problems with his left hip following his first motor vehicle accident. The Veteran reported having some popping in the left hip joint and some discomfort walking more than four blocks. The examiner found him to be status-post left hip injury, by history. As above, in February 2013 the Board remanded the case for additional development. Specifically, the Board requested that the Veteran be afforded a VA examination of the hips and spine to determine whether the Veteran has a left hip, low back, or right hip disorder as a result of injuries sustained during military service, and, if the examiner found that a left hip disorder was caused by the Veteran's military service, whether the claimed low back and right hip disorders are secondary to or have been aggravated by the Veteran's left hip disorder. Significantly, the Board requested that the VA examiner specifically consider the December 1990 orthopedic consultation. Pursuant to the February 2013 Board remand the Veteran was afforded a VA examination specific to the back and hips in February 2013. Upon physical examination of the hips, it was noted that the Veteran had a normal for age bilateral hip joint examination with left trochanteric bursitis. The examiner also opined that it was less likely than not that the Veteran's left hip disorder was related to his military service. Specifically, the examiner noted that the Veteran's service treatment records showed a left hip contusion and abrasion after a motorcycle accident with no boney involvement on X-ray. This was treated in patient as an acute episode that self-resolved because there was a session of PT (physical therapy) with no follow-up treatment or follow-up care found in the service treatment records after leaving the hospital. The Veteran was returned to full duty with no restrictions. After two decades, the issue was revisited to find uncomplicated trochanteric bursitis on physical examination which had no nexus to the motorcycle accident that occurred in the mid-1980s. Unfortunately, the Board finds that the February 2013 VA examination report as to the left hip and back is inadequate as it is based on a factual inaccuracy. Significantly, the February 2013 VA examiner found evidence of left hip trochanteric bursitis. The examiner also wrote that the Veteran's in-service left hip problems resolved and that there was no evidence of a left hip disorder until two decades later. However, as above, the Veteran received a diagnosis of trochanteric bursitis during the December 1990 orthopedic consultation, approximately six months after the Veteran's discharge from military service. As such, the Board finds that an addendum opinion is necessary to determine whether the Veteran's currently diagnosed trochanteric bursitis of the left hip is related to the Veteran's military service in light of the fact that he was first diagnosed with trochanteric bursitis of the left hip approximately six months after his discharge from military service. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, an addendum to the February 2013 VA examination is required. Also, as was noted in the February 2013 Board remand, there are private medical records from the November 1986 in-service motor vehicle accident which are not associated with the claims file, specifically from St. Mary's Hospital. On remand, the Veteran was asked to provide the necessary release form required to obtain copies of any outstanding records from St. Mary's Hospital, the Medford Medical Clinic, and the Portland hospital at which he receives treatment. In February 2013 while the Veteran returned the appropriate authorization forms with regard to Medford Medical Clinic and a Portland hospital, he did not provide an authorization form for St. Mary's Hospital. As the left hip and low back claims need to be remanded again, on remand, the Veteran should be given another opportunity to provide an appropriate authorization forms with regard to St. Mary's Hospital. Finally, as the case must be remanded for the foregoing reason, recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request the Veteran's assistance in identifying all medical care providers who have treated him for his left hip and low back disorders and provide the necessary release forms required to obtain copies of any outstanding records of pertinent treatment. Specifically noted in this regard are records from St. Mary's Hospital. Thereafter, reasonable attempts should be made to obtain pertinent records for the claims file. The RO/AMC should also document any attempts to procure records, and if unable to obtain them inform the Veteran and his representative. 2. The RO/AMC should request and obtain any VA medical records not already associated with the claims file, including records from the VA medical center in Roseburg dated since February 2013. If the search for any such records yields negative results, that fact shall be clearly noted and the Veteran must be informed in writing. 3. Upon completion of the above development, the RO/AMC should obtain and addendum to the February 2013 VA examination. The claims file must be made available to, and reviewed by, the examiner. The examiner should provide an opinion as to the following: a) Is it at least as likely as not (50 percent probability or greater) that the any currently diagnosed (1) left hip disorder, and/or (2) low back disorder developed in or was caused by the Veteran's service, including as due to the November 1986 and February 1987 motor vehicle accidents? b) If the examiner finds that a left hip disorder developed in or was caused by the Veteran's service, is it at least as likely as not (50 percent probability or greater) that the any currently diagnosed low back disorder was caused and/or aggravated by the left hip disorder? If possible, determine to what extent the low back disorder was aggravated beyond the natural progression of the disorder(s) by the left hip. For purposes of the opinion being sought, the examiner should specifically consider the diagnosis of trochanteric bursitis of the left hip in December 1990, approximately six months after the Veteran's discharge from military service, as well as the diagnosis of trochanteric bursitis of the left hip during the February 2013 VA examination. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete explanation must be given for all opinions and conclusions expressed. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 4. When the development requested has been completed, the case shall again be reviewed by the RO/AMC on the basis of the additional evidence. If any benefit sought is not granted, the Veteran shall be furnished a Supplemental Statement of the Case, and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. 2013). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs