Citation Nr: 1342089 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 08-03 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative joint disease of the right hip. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2009, the Veteran testified at a Board hearing at the Central Office in Washington, DC before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claim folder. In June 2009 and November 2011, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The current right hip disability with degenerative joint disease did not have its onset in service, degenerative joint disease was not manifest to a compensable degree within the one-year period following separation from service; and the current right hip disability is unrelated to any injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for the current right hip disability with degenerative changes have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484 86 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by a letter in August 2006. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content and for the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication notice). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and records from the Social Security Administration. The Veteran was afforded a VA orthopedic examination in January 2012. As the VA examiner reviewed the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion reached in the opinion, the VA examination is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (wartime) and § 1131 (peacetime). Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately 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 disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including degenerative joint disease as a type of arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records, including the reports of entrance and separation examinations, contain no complaint, finding, history, treatment, or diagnosis of a right hip disability to include degenerative joint disease. The service treatment records do show that in June 1976 the Veteran was involved in an auto accident, spraining his righ ankle, as well as lacerating his lip and breaking a front tooth. One month later, in July 1976, he complained of stiffness in his lower back after straining it in physical therapy. The impression was lower back strain. After service in December 2005, the Veteran was seen for complaints of severe right leg, thigh and hip pain. January 2006 X-rays of the right hip revealed severe degenerative changes in the right hip. In March 2006 the Veteran reported a 3-year history of right hip pain and recalled trauma in service, but no known dislocation. Subsequent treatment records show ongoing treatment for severe right hip pain, diagnosed as degenerative joint disease of the right hip. In March 2008, the Veteran underwent total right hip arthroplasty surgery. In February 2009, the Veteran testified that his right hip disability began around January 2003 and was first treated in March 2006. He further testified that while in service, he had an accident in June 1976 that required he be casted from his right ankle to his right thigh and that he experienced resultant back pain. The Veteran testified that he had no intervening injuries since the 1976 accident. He also denied being told by any physicians that his one leg was shorter than the other. On VA examination in January 2012, the diagnosis was status post right hip replacement with residuals. The VA examiner noted the Veteran's history of having a gradual onset of right hip pain after his discharge from service and subsequently being told that he had degenerative arthritis. The VA examiner stated that it was less likely than not that the Veteran's current status post right total hip replacement with residuals, due to degenerative joint disease, was related to the Veteran's accident in service in 1976. The examiner further stated that due to the Veteran's report of when his symptoms began, the lack of injury to the right hip in the accident in service, and the lack of documentation of ongoing right ankle problems following discharge, there was no way to attribute the degenerative arthritis of the right hip to military service. Analysis On the basis of the service treatment records alone, a right hip disability was not affirmatively shown to have had its onset during service. Likewise, degenerative joint disease of the right hip was not affirmatively shown to have been present during service. For these reasons, service connection for a right hip disability to include degenerative joint disease under 38 U.S.C.A. § 1110 and § 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. Although arthritis is listed as a chronic disease under 38 C.F.R. § 3.309, the record does not establish that arthritis of the right hip was manifested to a compensable degree within one year of his discharge from service. For this reason, service connection for a right hip degenerative joint disease on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309(a) is not warranted. As degenerative joint disease of the right hip has been diagnosed, and as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). For the showing of a chronic disease, such as degenerative joint disease, in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Veteran is competent to describe right hip pain, which is in the realm of his personal experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran as a lay person is also competent to identify a simple medical condition. Jandreau, at 1377. The presence of degenerative joint disease is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of such falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. § 3.3159; Jandreau, at 1377. Also degenerative joint disease or arthritis is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, degenerative joint disease or arthritis is analogous to an internal disease process, such as rheumatic fever , rather than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, degenerative joint disease or arthritis is not the type of condition under case law that has been found to be capable of lay observation. As the Veteran's claimed right hip degenerative joint disease is not capable of lay observation under Jandreau and by case law, the disability is not a simple medical condition. Likewise, no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose degenerative joint disease or arthritis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Therefore, his lay statements are not to be considered as competent evidence that degenerative joint disease as a chronic disease was present in service and the lay evidence cannot be considered as evidence favorable to claim based on chronicity. As the Veteran's lay statements are not competent evidence that degenerative joint disease of the right hip was present in service and as the service treatment records lack the documentation to identify right hip degenerative joint disease in service, chronicity of degenerative joint disease of the right hip in service is not adequately supported by the evidence of record. Whereas here the fact of chronicity in service is not adequately supported, service connection can be established by continuity of symptomatology. Continuity of symptomatology requires: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology). As previously explained, degenerative joint disease is not capable of lay observation as it is not a simple medical condition. However, the Veteran has not alleged continuity of symptomatology and has repeatedly stated that his right hip symptoms had either a gradual onset since service or began sometime in 2003. Therefore, continuity of degenerative joint disease of the right hip since service is not adequately supported by the evidence of record. As for evidence of a nexus between the claimed in-service accident and the post-service symptomatology, the Veteran asserts that his current right hip disability is related to his documented accident in service. However, as previously established, the Veteran is not competent to provide an opinion regarding the etiology of his right hip degenerative joint disease as it is not a simple medical condition. The only competent medical evidence of record, addressing causation or a nexus to service is the January 2012 VA examiner's opinion that it is less likely than not that his current right hip disability is related to his in-service accident. The opinion of the VA examiner constitutes competent and persuasive medical evidence with respect to the onset of arthritis and a nexus to service, which opposes rather than supports the claim. There is no medical evidence to the contrary. As the preponderance of the evidence is against the claim for service connection for degenerative joint disease of the right hip, there is no doubt to be resolved and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for degenerative joint disease of the right hip is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs