Citation Nr: 1336376 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-37 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUES 1. Entitlement to service connection for a bilateral hip disability, claimed as secondary to the service-connected knee disabilities. 2. Entitlement to service connection for a low back disability, claimed as secondary to the service-connected knee disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and the Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1972. The appeal is before the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. When the case was before the Board in February 2011, it was remanded for additional development. The Board dismissed the appeal in March 2013 due to the Veteran's death during the pendency of the appeal. The Board's dismissal did not affect the right of an eligible person to file a request to be substituted as the appellant. The appellant, as the surviving spouse of the Veteran, has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claims. In April 2010, the Veteran provided testimony at a hearing before a Veterans Law Judge who is no longer employed at the Board. In a June 2012 letter, the Board informed the Veteran of this and his options for another Board hearing. The letter also informed the Veteran that a failure to respond within 30 days of the issuance of the letter would be construed as a desire to have the Board adjudicate the appeal on the record, without another hearing. The Veteran did not reply. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. No hip disability was present until more than one year following the Veteran's discharge from service, and no hip disability was caused or permanently worsened by service-connected disabilities. disability was not present during service, is not etiologically related to service, and is not secondary to the service-connected knee disabilities. 2. A low back disability was present until more than one year following the Veteran's discharge from service, and no low back disability was caused or permanently worsened by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was informed of the evidence necessary to substantiate his claims for service connection on a secondary basis and of the respective responsibilities of the Veteran and VA in obtaining evidence in a December 2008 letter, prior to the initial of the claims. Although he was not provided notice with respect to establishing the claims on a direct or presumptive basis, he does not contend that service connection is warranted on a basis other than secondary service connection. In fact, in a June 2012 statement, he specifically stated that his current hip and back disabilities were not related any injuries in an in-service motorcycle accident. The Board further notes that the Veteran has not been provided notice with respect to the disability rating and effective date elements of the claims. As explained below, the Board has determined that service connection is not warranted for the claimed disabilities. Consequently, no disability rating or effective date will be assigned, so the failure to provide notice with respect to those elements of the claims was no more than harmless error. The record also reflects that all service treatment records (STRs), and all available post-service medical evidence identified by the Veteran and appellant have been obtained. Neither the Veteran, the appellant, nor the representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Board acknowledges that the record does not include the records associated with the Veteran's award of Social Security Administration (SSA) disability benefits; however, the SSA disability benefits were awarded for an unrelated disability and there is no assertion that SSA has any records supportive of the claims on appeal. The Veteran was afforded an appropriate VA examination and probative opinions (i.e. opinions supported by a detailed rationale) have been obtained with respect to the disabilities at issue. The Board acknowledges that the Veteran argued that the opinion was not adequate because the examiner characterized his employment as "mechanic" and he was a machine maintenance technician. The Board does not find this distinction to be sufficiently significant to render the opinion inadequate. Furthermore, there has been substantial compliance with the Board's February 2011 remand directives with respect to the issues decided herein. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2013). Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The service treatment records are negative for evidence of a disability of either hip. They do show that the Veteran was seen in October 1969 low back pain, which was initially assessed as upper respiratory infection and muscle strain in the right lower back. X-ray images were negative. Subsequent examination revealed that the Veteran could perform almost all exercises with ease; back strain and malingerer were assessed. A May 1971 treatment record reflects the Veteran's history of "pain in the back shoulder and sides" from a motorcycle accident. A clinical record dated the next day reflects a history of hitting the pavement with his back and right shoulder in a motorcycle accident. The record reflects findings of contusions of the right shoulder and posterior thorax. Examination did not reveal any abnormality of the back. Subsequent records reflect histories of shoulder complaints but nothing suggestive of pain or other symptoms in the back. The March 1972 separation examination record reflects normal clinical findings for the spine and lower extremities. A January 1973 VA examination record reflects no complaints or abnormal findings pertaining to the hips or back. Since 2008, the Veteran has reported pain in his hips and back which he believed was due to his knee disabilities. The Veteran has explained that he believes the hip and back pain is due to having to compensate for his knee disabilities while walking. X-ray imaging of the hips in September 2009 revealed no fracture, dislocation, or bone lesion and relatively well-preserved hip joint space. There was bone formation along the cranial edge of the right acetabulum that was possibly related to osteophytosis/degenerative ossification of the right acertabular labrum. Computerized tomography (CT) scans taken in May and September 2010 and January and February 2012 revealed incidental findings of degenerative changes in the spine. A March 2011 VA examination record reflects the Veteran's history of hip pain since approximately 2002. The Veteran denied any specific trigger for the onset of the pain. He added that he was involved in a couple of car accidents, without specific injury. After examination, bilateral hip bursitis was diagnosed. The examiner determined that the bilateral hip bursitis was not likely related to service because there was no documentation of hip pain or injury in service. Furthermore, the examiner determined the bursitis was not likely a result of the service-connected knee conditions. The examiner added that it "may have been aggravated beyond a natural progression because of favoring" but the examiner was unable to determine to what degree without resorting to speculation. The examiner found it more likely the bursitis was related to the Veteran's career as a mechanic. The examiner noted that the hip pain did not begin until 2002, approximately 30 years after service. The record also reflects the Veteran's history of low back pain for "several years." He added that he was involved in a couple of car accidents, without specific injury, and that a person fell onto his back but the injury resolved. The examiner noted the in-service treatment for the back. The examiner noted that the service treatment was not for any "condition," however. After examination, the examiner diagnosed low back strain. The examiner determined the low back strain was not likely related to service as there was no documentation of injury in the service treatment records. Furthermore, the examiner determined the strain was not likely a result of the service-connected knee conditions. The examiner added that it "may have been aggravated beyond a natural progression because of favoring" but the examiner was unable to determine to what degree without resorting to speculation. The examiner found it more likely the strain was related to the Veteran's career as a mechanic. The examiner noted that the back pain did not begin until approximately 30 years after service. In an April 2012 addendum, the examiner stated that it was less likely than not that the Veteran's back disability was related to service. The examiner explained that there is no documentation of spinal injury in the service treatment records - the records only revealed contusion to post thorax and right shoulder as a result of the accident in 1971, with nothing to follow and unremarkable discharge physical exam. The examiner added that there were also several notes in 1969 in regards to low back strain with nothing to follow and no evidence of chonicity. Analysis Bilateral Hip Disability Following the review of the evidence, the Board must conclude that service connection is not warranted for the Veteran's bilateral hip disability on a direct or presumptive basis. There is no medical evidence suggesting that the Veteran had a disability of either hip in service or until many years thereafter, or suggesting that the post-service bilateral hip disability was related to service. Moreover, the Veteran did not contend that his bilateral hip disability was related to service and a VA examiner provided a probative opinion that the bilateral hip disability was not related to service. Finally, the preponderance of the evidence shows that the bilateral hip disability was not secondary to the service-connected knee disabilities. The record does not include probative evidence linking the current disability to the service-connected knee disabilities, to include the associated altered gait. Initially, the Board finds the probative evidence does not suggest the hip disability was caused by the service-connected knee disabilities. A VA examiner provided a probative opinion that the bilateral hip disability was not caused by the service-connected knee disabilities. There is no contrary medical opinion of record. Although the Veteran believed that his hip disability was caused by the knee disability, the medical evidence does not corroborate this belief, and the record does not suggest the appellant, who was a layperson, was competent to determine the cause of the bilateral hip disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. The probative evidence also does not establish that the hip disability was aggravated by the service-connected knee disabilities. The record does not include evidence of a baseline level of severity and aggravated level of severity. The Board acknowledges that the VA examiner determined the hip disability "may have been" aggravated by the service-connected knee disabilities. However, a speculative opinion such as this is not sufficient to support the claim. Moreover, although the examiner allowed that it was possible that the knees had aggravated the hips, the examiner ultimately concluded that the bilateral hip disability was more likely related to the Veteran's post-service occupation. Although the Veteran might have believed that his hip disability was permanently aggravated by the knee disability, the record does not suggest the appellant, who was a layperson, was competent to make that determination. In the absence of evidence of a baseline level of disability or a probative opinion, the Board finds the preponderance of the evidence is against the claim for secondary service connection. Accordingly, service connection is not warranted for a bilateral hip disability. Low Back Disability Following the review of the evidence, the Board must conclude that service connection is not warranted for the Veteran's low back disability. Initially, the Board finds the preponderance of the evidence shows that the current low back disability was not present until more than one year after service. Although the service treatment records reflect treatment for muscle strain in 1969 and a history of falling on the back in 1971, the service treatment and examination records do not suggest a persistent or chronic condition, the Veteran never alleged the existence of persistent symptoms during service, and post-service evidence indicates that the chronic condition began many years after service. Furthermore, a VA examiner has provided a probative opinion that the low back disability was not related to service, to include did not begin during service. There is no contrary medical opinion of record. The preponderance of the evidence also shows that the low back disability was not caused by service. Again, although the Veteran reported falling on his back in 1971, he never alleged any symptoms involving the back related to the motorcycle accident, and the record does not include any findings indicative of injury to the back related to the accident. Moreover, a VA examiner provided a probative opinion that the low back disability was not related to service, to include the in-service motorcycle accident. There is no contrary medical opinion of record. Finally, the preponderance of the evidence shows that the low back disability was not secondary to the service-connected knee disabilities. The record does not include probative evidence linking the current disability to the service-connected knee disabilities, to include the associated altered gait. Initially, the Board finds the probative evidence does not suggest the low back disability was caused by the service-connected knee disabilities. A VA examiner provided a probative opinion that the low back disability was not caused by the service-connected knee disabilities. There is no contrary medical opinion of record. Although the Veteran believed that his low back disability was caused by the knee disability, the medical evidence does not corroborate this belief, and the record does not suggest the appellant, who was a layperson, was competent to determine the cause of the low back disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. The probative evidence also does not establish that the low back disability was aggravated by the service-connected knee disabilities. The record does not include evidence of the baseline and aggravated levels of severity, which is the claimant's burden to show. The Board acknowledges that the VA examiner determined the low back disability "may have been" aggravated by the service-connected knee disabilities. However, a speculative opinion such as this is not sufficient to establish service connection. Moreover, although the examiner allowed that it was possible that the knees had been aggravated, the examiner ultimately concluded that the low back disability was more likely related to the Veteran's post-service occupation. Although the Veteran might have believed that his low back disability was permanently aggravated by the knee disabilities, the record does not suggest the appellant, who was a layperson, was competent to make that determination. In the absence of evidence of a baseline level of disability or a probative opinion, the Board finds the preponderance of the evidence is against the claim for service connection on a secondary basis. Accordingly, service connection is not warranted for a low back disability. (CONTINUED ON NEXT PAGE) ORDER Service connection for a bilateral hip disability is denied. Service connection for a low back disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs