Citation Nr: 1335136 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-18 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right leg disability, to include as secondary to service-connected left ankle disability and/or to exposure to Agent Orange. 2. Entitlement to service connection for a left leg disability, to include as secondary to service-connected left ankle disability and/or to exposure to Agent Orange. 3. Entitlement to service connection for a right hip disability, to include as secondary to service-connected left ankle disability. 4. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left ankle disability. 5. Entitlement to service connection for a low back disability, to include as secondary to service-connected left ankle disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION According to the evidence on file the Veteran served on active duty for more than 20 years, retiring in May 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). The Veteran cancelled his travel board hearing scheduled for August 27, 2008. In March 2011, the Board reopened claims of service connection for right leg disability, right hip disability, left hip disability, and low back disability, to include on a secondary basis, and remanded the underlying claims for further development. Also remanded were the issues of entitlement to service connection for PTSD and for a left leg disability, to include on a secondary basis. In an August 2012 rating decision, the AMC granted service connection for PTSD. This award represents a complete grant of the benefit sought with respect to the PTSD claim. The issues of entitlement to service connection for a right leg disability, left leg disability, left hip disability, and low 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 preponderance of the evidence is against a finding that the Veteran has had a right hip disability during the appeal period. CONCLUSION OF LAW The criteria to establish service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, a timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial. Rather, prejudice is determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA duty to notify was initially satisfied by way of pre-adjudicatory letter sent to the Veteran in March 2006 which at the time addressed whether new and material evidence had been received to reopen service connection claims for right hip disability, in pertinent part. The Board reopened the service connection claim for right hip disability in March 2011. Additional VCAA letters were sent to the Veteran in May 2011 which addressed the underlying service connection claim for right hip disability. The claim was then readjudicated by way of an August 2012 SSOC. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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 claims file contains the Veteran's STRs, VA medical evidence, and private medical evidence. The Veteran was afforded a VA joints examination in June 2011. The RO/AMC complied with the Board's March 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. In response to the August 2012 SSOC, the Veteran indicated in the following month that he had no additional evidence regarding his appeal and asked that his claim be forwarded to the Board immediately. No further notice or assistance to him is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). He has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist the Veteran have been fulfilled. Service Connection Claim for a Right Hip Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2013). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a) -benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed under 38 C.F.R. § 3.309(a). Walker, supra. Thus, if the veteran does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. A disability also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 . The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's STR dated in February 1987 shows one complaint of pain in the right hamstring after having bowled the night before. Assessment was right hamstring pull; the STRs show no other complaints concerning the right hamstring area. The STRs show no pathology pertinent to the right hip joint. Post-service, in November 2005, the Veteran reported pain his right hip during a VA physical therapy consultation. However, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The VA physical therapy consultation note showed no evidence of an underlying right hip disability, and as will be discussed below, the remaining evidence of record shows no evidence of any pathology in the Veteran's right hip. In a December 2005 statement, the Veteran's private chiropractor stated that he treated the Veteran for low back pain arising from degenerative joint disease of the right hip, in pertinent part. However, the chiropractor did not provide any x-ray evidence to confirm a diagnosis of arthritis in the right hip. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (requiring x-ray evidence to establish degenerative arthritis). Additionally, the VA medical evidence of record does not show any x-ray evidence of arthritis in the Veteran's right hip. The Board remanded this claim in March 2011 to determine the nature of any current right hip disability, in pertinent part. After examining the Veteran and reviewing the claims file, a June 2011 VA examiner determined that the Veteran does not have a current right hip disability, and indicated that x-rays of the right hip taken in December 2009 showed no evidence of abnormalities (evidence of osteoarthritis in the left hip was seen, however). In the absence of x-ray evidence of arthritis in the right hip joint, the chiropractor's reference to degenerative changes in the Veteran's right hip is not probative, and the remaining medical evidence does not demonstrate that he has any type of disability in the right hip. The preponderance of the evidence is therefore against a finding that the Veteran has had arthritis, or any other disability in the right hip, since the filing of this claim. Because the Veteran does not a right hip disability, service connection on a direct or secondary basis cannot be granted as a matter of law. 38 U.S.C.A. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim); see also Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) and Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Accordingly, the preponderance of the evidence is against this claim, and under these circumstances, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) West 2002); 38 C.F.R. § 3.102 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a right hip disability, to include as secondary to service-connected left ankle disability, is denied. REMAND Pursuant to the Board's March 2011 remand, the Veteran was afforded VA examinations to determine the etiology of any bilateral leg, hip, and low back disabilities. A June 2011 VA examiner determined that the Veteran has peripheral vascular disease and peripheral neuropathy in the lower legs which are not related to exposure to Agent Orange or his service, but rather to his long history of alcohol abuse. However, the VA examiner did not address the relationship, if any, between the Veteran's leg disabilities and his service-connected left ankle disability, as requested. The examiner must indicate whether the leg disabilities were caused or aggravated by the service-connected left ankle disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Similarly, although the June 2011 VA examiner determined that the Veteran's left hip osteoarthritis and low back strain are less likely than not related to his service or his service-connected left ankle disability, he did not address whether those left hip and low back disabilities were aggravated by the Veteran's service-connected left ankle disability. Where a veteran's service-connected disability causes an increase in a non service-connected disability, the law mandates that the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. See Allen, supra. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In order to facilitate appellate review, an adequate VA etiology opinion that addresses whether the Veteran's right leg, left leg, left hip, and low back disabilities were CAUSED OR AGGRAVATED by the Veteran's service-connected left ankle disability is needed. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439; Barr v. Nicholson, 21 Vet. App. at 311. Accordingly, the case is REMANDED for the following action: 1. Arrange for the claims file to be forwarded to the VA examiner who performed the June 2011 VA examination of the Veteran's joints, OR, IF THIS EXAMINER IS NOT AVAILABLE, THE CLAIMS FILE MUST BE FORWARDED TO A SIMILARLY QUALIFIED PHYSICIAN, TO REVIEW THE RECORD AND RESPOND TO THE INQUIRIES BELOW. (a). The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. Although the examiner has an independent responsibility to review THE ENTIRE claims file, his or her attention is called to the following: *Private chiropractor statement dated in April 2006 indicating that the Veteran's in-service left ankle injury would have aggravated existing degenerative changes in his low back and [left] hip or would have been a contributing factor in causing the changes. See also chiropractor's December 2005 statement; and *The Veteran's VA primary care physician according to an August 2008 VA treatment note indicating that the Veteran's left ankle injury puts strain on his back, knees, and feet; and *The June 2011 VA examination of the joints findings and opinions. (b). After reviewing the claims file, the examiner must respond to the following: (i). Clarify whether the Veteran has degenerative changes in his lumbar spine. Explain the reference in the June 2011 VA examination report to him not having any "significant" degenerative changes on x-rays. (ii). Furnish an opinion with respect to whether the Veteran's currently diagnosed right leg, left leg, left hip, and low back disabilities were CAUSED BY, AGGRAVATED BY OR PERMANENTLY WORSENED BEYOND THE NATURAL PROGRESSION of the disorder by his service-connected left ankle disability. (iii). If it is determined that the Veteran's right leg, left leg, left hip, and/or low back disabilities were aggravated by his service-connected left ankle, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. (c). Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. (d). If an opinion cannot be expressed without resort to speculation, discuss why such is the case, and indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 3. After the requested development has been completed, consider all of the evidence of record and readjudicate the merits of the Veteran's claims based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs