Citation Nr: 1340510 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-00 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hip disability, to include as secondary to a service-connected lumbar spine disability. 2. Entitlement to service connection for a bilateral leg disability, to include as secondary to a service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1946 to May 1949, and from August 1949 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In correspondence dated in June 2013 the Veteran withdrew his request for a Board hearing. The Board recharacterized the issues for appellate review and remanded the case for additional development in September 2013. The Board notes that the Veteran's November 2006 correspondence concerning spine, skin, and ankle disorders was accepted as raising new claims and that these matters were adjudicated in an unappealed May 2011 rating decision. Although in his November 2006 correspondence to the RO he had requested that he be allowed to retract his June 2006 request to withdraw an appeal of these issues, the Board has no current jurisdiction over these matters. The appeal was withdrawn prior to certification and the Board finds the November 2006 correspondence was appropriately addressed by the RO in its May 2011 adjudication. This appeal was processed using the Virtual VA and VBMS (efolder) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A bilateral hip disability was not manifest during active service, hip arthritis was not manifest within one year of service, and a present hip disability is not shown to have developed as a result of an established event, injury, or disease during active service or to be proximately due to a service-connected disability. 2. A bilateral leg disability was not manifest during active service, knee arthritis was not manifest within one year of service, and a present leg disability is not shown to have developed as a result of an established event, injury, or disease during active service or to be proximately due to a service-connected disability. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in or aggravated by military service or as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. A bilateral leg disability was not incurred in or aggravated by military service or as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in July 2007, January 2010, February 2010, and September 2013. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements in support of his claims. The development requested on remand in September 2013 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Service Connection, Generally Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) Lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). In this case, the Veteran contends that he has bilateral hip and leg disabilities that are related to an in-service motor vehicle accident that occurred in June 1952. He also asserted that he had sustained injuries playing football in service and that he had experienced intermittent hip pain prior to having incurred additional injuries in a 2004 motor vehicle accident. Service treatment records show the Veteran sustained injuries in a motor vehicle accident in June 1952, including a simple fracture to the second lumbar vertebra. The records are negative for complaint, treatment, or diagnosis of hip or leg disorders. An October 1952 separation examination included a normal clinical evaluation of the lower extremities. An April 1953 VA special orthopedic examination noted there were no knee problems. On VA examination in November 2009 the Veteran complained of bilateral hip and leg pain onset in 2002 that had progressively worsened. He reported that he had gradually noticed discomfort with the extremes of motion to the hips and a decreased ability to cross his legs. The examiner provided diagnoses of bilateral degenerative arthritis of both knees, status post left total knee replacement, and degenerative arthritis of the hips. It was noted that there was no history of continuing treatment following the motor vehicle accident in 1952 nor until 2002 upon which to substantiate a chronic disabling condition and that the Veteran's arthritis of the hips was compatible with his age. VA examination in October 2013 included diagnoses of arthritis of the hips, arthritis of the right knee, and left total knee arthroplasty. The examiner found the disabilities were not likely related to service, to a motor vehicle accident in service, nor to the Veteran's service-connected back disability. It was noted that the Veteran denied having any related symptoms in service and that the onset of his present hip and leg disabilities was many years after service. The examiner further noted, in essence, that arthritis of the knees or hips did not develop due to spine disabilities, unless there were significant mechanical changes sufficient to cause abnormal pelvic tilt or gait which could aggravate the hips, which were not present in this case. Based upon the evidence of record, the Board finds that bilateral hip or leg disabilities were not manifest during active service, hip and knee arthritis were not manifest within one year of service, and a present hip or leg disability is not shown to have developed as a result of an established event, injury, or disease during active service nor to be proximately due to a service-connected disability. The November 2009 and October 2013 VA medical opinions in this case are found to be persuasive and based upon adequate rationale. The opinions are also shown to have been based on an examination and review of the evidence of record, and to have included adequate consideration of the Veteran's statements concerning his symptom manifestations. The Board also notes that the September 2013 remand found a review of VA and private treatment records and earlier VA examinations suggested that the Veteran's bilateral hip and leg complaints may be related to his service-connected lumbar spine disability. Specifically, it was noted that a VA spine examination in April 1994 revealed minimal tenderness in both buttocks and sciatic notch regions and that a VA spine examination in December 2002 revealed complaints of intermittent episodes of sharp pain which radiated to the right hip with numbness and pain along the lower extremities that was aggravated after sitting for more than one hour or when driving long distances. A November 2009 VA peripheral nerves examination had included clinical findings compatible with spinal stenosis and diabetic neuropathy. Subsequent VA treatment records have also noted assessments of radiculopathy versus neuropathy. Although the Veteran's service-connected lumbar spine disability is not presently before the Board for appellate review, the Board finds the evidence of record is persuasive that no present hip or leg symptoms are related to radiculopathy associated with that service-connected disability. The September 2013 remand directives included that a VA examiner be asked to review any and all pertinent records and then provide an opinion as to whether the Veteran has any bilateral hip or leg disabilities that are directly related to his service or secondary to his service-connected lumbar spine disability. The October 2013 VA examiner's opinion as to this matter is persuasive and is shown to have been based upon a thorough review of the record. It is also significant to note that the December 2002 VA examiner had found that there were no signs of radiculopathy to the lower extremities and that electromyography studies of the lower extremities in December 2009 were normal with no findings of peripheral neuropathy or radiculopathy affecting the lower extremities. While the Veteran is competent to provide evidence as to observations and some medical matters, his statements are, at most, conclusory assertions of a nexus between his present hip and leg disabilities and service or a service-connected disability. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). As questions of a medical diagnosis of arthritis and any relationship to an incident during service are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide, his statements are insufficient by themselves to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is considered competent to provide etiology or nexus evidence). Simply put, the Board finds the Veteran is not competent to state that any symptoms he experienced after service were due to injuries or disabilities he sustained in service. In summary, the Board finds the preponderance of the evidence in this case is against the claims for entitlement to service connection for hip or leg disorders. The competent medical opinions in this case show that the Veteran's present disabilities were not manifest during active service and did not develop as a result of service or a service-connected back disability. Instead, they are shown to be most likely attributable to post-service injuries and/or the normal process of aging. Therefore, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral hip disability, to include as secondary to a service-connected lumbar spine disability, is denied. Entitlement to service connection for a bilateral leg disability, to include as secondary to a service-connected lumbar spine disability, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs