Citation Nr: 1339956 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 07-30 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral hip disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran had active service from August 1996 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas. In May 2010, the Veteran testified at a personal hearing over which the undersigned presided while at the RO. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in January 2011 at which time it was remanded for additional development. The Board also remanded the issues of service connection for a left shoulder disorder and a left ankle disorder. In an April 2012 rating decision, service connection was granted for left shoulder and left ankle disabilities. Therefore, those issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The remaining issue now returns to the Board for appellate review and is ready for adjudication. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that a Written Brief Presentation dated in August 2013 has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT There is no currently diagnosed disorder of either hip, other than symptoms associated with the already service-connected low back disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hip disorder have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). The notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). VCAA notice should be provided prior to an initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided notice of the general requirements for service connection and the responsibilities of VA and the Veteran in providing such evidence in an August 2005 letter, prior to the initial adjudication of his claim in December 2005. Thereafter, he was notified in a July 2006 letter of the evidence and information necessary to establish a disability rating. This timing defect was cured by the subsequent readjudication of the Veteran's claim, including in an April 2012 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As indicated above, the Veteran testified at a Board hearing in May 2010. The undersigned asked questions during the hearing in an attempt to obtain evidence to substantiate the claim on appeal, and the Veteran discussed his asserted experiences and symptoms during service and afterwards. The hearing focused on the elements necessary to substantiate the claim, and the Veteran and his representative demonstrated actual knowledge of such elements via questioning and testimony. There is no indication or argument that any notification deficiencies have resulted in prejudice or otherwise affected the essential fairness of the adjudication. In particular, neither the Veteran nor his representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the Board hearing. Rather, the Veteran has had ample opportunity to participate in the adjudication of his claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and obtaining a medical examination and opinion when necessary for a fair adjudication. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the RO obtained all identified, available treatment records, including the full service treatment records and post-service records. Records in the paper claims file and the paperless Virtual VA system have been reviewed and considered. The Veteran was requested to identify any further outstanding records in a February 2011 letter, and he indicated in March 2011 that no further evidence is available. Additionally, the Veteran was afforded a VA examination to determine the nature and etiology of any current hip disorder in March 2011, as directed in the prior remand. There is no argument or indication that the VA examination is inadequate, as the examiner conducted a thorough evaluation with all appropriate testing, and reviewed the entire claims file. In sum, the remand directives were satisfied, and another remand for further notice or development would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist at every stage in this case, at least insofar as any errors were not harmful to the essential fairness of the proceedings. Therefore, the Veteran will not be prejudiced by a decision on the merits. Analysis The Veteran seeks service connection for a bilateral hip disorder, stating that he had pain in both hips during service that has continued since that time. 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; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). Service connection generally requires competent and credible of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board first notes that the evidence demonstrates symptoms in both hips during and since service. Although service treatment records do not document any hip problems, the Veteran has provided competent and credible evidence of symptoms during service and since that time. He also testified during the May 2010 hearing that he did not seek treatment due to the nature of his service as a member of a United States Navy Sea, Air, and Land (SEAL) Team. Additionally, there are lay statements from two fellow service-members and three family members, as well as statements by the Veteran for post-service treatment purposes, corroborating the Veteran's reports of pain in the hips during service and on a persistent and recurrent basis since that time. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nevertheless, to be entitled to service connection for a hip disorder, there must be a currently diagnosed hip disability to account for the Veteran's hip symptomatology. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there is no present disability); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (stating that pain alone, without an identifiable underlying condition, is not a disability eligible for service connection). In this regard, private records from Texas Children's Hospital dated in April 2005 reflect complaints of left hip pain. Physical assessment showed asymmetric lower pelvic height, compression of the anterior superior iliac spine, and abnormal or asymmetric March, Ober's, Gluteus medius, and Thomas tests. The provider diagnosed left hip instability and left sacroiliac dysfunction. Shortly thereafter, private records from TIRR Rehabilitation Center and Kirby Health and Wellness Center dated from June to September 2005 contain references to left hip pain. During a March 2011 VA examination, a VA examiner measured and recorded the Veteran's complaints and conducted appropriate testing, including X-rays and magnetic resonance imaging (MRI) studies of the lumbar spine and hips. The Veteran's reports, and the examiner's summary of the symptoms and treatment, are generally consistent with the other evidence of record. X-rays of the bilateral hips were negative. The examiner opined that the Veteran's complaints were not specifically related to the hips but, rather, were consistent with sciatica coming from his back, not from the hip joints themselves. The Board assigns high probative value to this opinion, as it was based on a review of the entire claims file, complete evaluation of the Veteran, and appropriate testing. Although the Veteran is competent to report observable symptoms such as pain in the hips, he is not competent as a lay witness to identify the cause of any such symptoms, to include whether there is a diagnosable disability. Rather, this question requires medical training, knowledge or experience, especially true given her multiple other conditions including myoclonus and generalized pain. See Barr, 21 Vet. App. at 307-08; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran's sister-in-law, L.T., is competent to provide an opinion as to his current diagnosis, as she has some medical expertise as a licensed physical therapist. In a statement received in October 2005, L.T. indicated that the Veteran has had bilateral low back and hip pain since returning from his duties as a Navy SEAL in October 1999. L.T. also stated that she had treated the Veteran, and that the Veteran's bilateral hip and low back pain appeared to be related to a sacroiliac dysfunction. L.T. specified that he had forward inominate rotation on the right side and bilateral ilio-tibial band dysfunction or tightening, or muscle imbalances. It is unclear, however, if L.T. reviewed the Veteran's other treatment records as contained in the claims file. Moreover, she did not have the benefit of the additional testing and evaluation conducted by the March 2011 VA examiner. As such, the Board assigns less probative value to her opinion. Moreover, L.T.'s statements appear somewhat consistent with the VA examiner's conclusion that the Veteran's bilateral hip complaints are related to his low back disability. In summary, although the Veteran had symptoms in the bilateral hips during service and since that time, the weight of the evidence does not demonstrate a currently diagnosed disorder in either hip, as separate from his lumbar spine disability. As such, service connection may not be granted for a disorder in either hip. See Brammer, 3 Vet. App. at 225. The preponderance of the evidence is against service connection, and the claim must be denied. 38 C.F.R. § 3.102. The Board observes that the Veteran has already been awarded service connection for his lumbar spine disability. Further, an April 2012 internal memorandum indicates that a claim for complaints in the hips as related to the spine was referred for appropriate action by the RO, as the agency of original jurisdiction. ORDER Service connection for a bilateral hip disorder is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs