Citation Nr: 1342144 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 09-03 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to February 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in part, denied reopening of the appellant's claim of entitlement to service connection for a left hip disorder and denied his claim of entitlement to service connection for a spine disorder. The Veteran testified before a Veteran's Law Judge who is no longer employed by the Board in a June 2011 Video Conference hearing. He also testified before the undersigned Veteran's Law Judge in a November 2013 Video Conference hearing. Both hearing transcripts are of record. In September 2011 and December 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Board notes that sometime prior to the issuance of the June 2000 rating decision which originally denied the Veteran's claim for a left hip disability, the Veteran's original VA claims file was lost, and the current file is a rebuilt one. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran does not have a current left hip disability. 2. A lumbar spine disability was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSIONS OF LAW 1. A left hip disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. A lumbar spine disability was not incurred or aggravated in active service and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a June 2007 letter, issued prior to the initial adjudication of the claims, and a subsequently issued November 2011 letter, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letters satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims in the June 2007 and November 2011 letters. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides 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. VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. As noted above, the Board remanded the claim in December 2012, to afford the Veteran a Board hearing before the Veterans Law Judge who would decide his appeal, and the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge in July 2013. Accordingly, the Board finds that the remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent or more 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (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 the 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 (2010); 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. Left Hip Disability The Veteran contends that he has a left hip disability related to an injury during active military service. Service treatment records show that the Veteran underwent a pre-induction examination in September 1965; the clinical evaluation was normal. On July 1, 1966, he was admitted for treatment of cellulitis of the left foot. After marked improvement, he was discharged on August 1, 1966. On December 6, 1966, the Veteran was examined and found to be physically qualified for transfer overseas. Thereafter, the Veteran appeared before a Medical Board in January 1967. It was noted that physical examination in December 1966 had revealed left calf and thigh atrophy of approximately one inch each, as well as weakness of the hip abducting group. The Medical Board found that the Veteran had a diagnosis of an old dislocation of the left hip that was congenital and existed prior to his entry into service. The Medical Board also found that the condition was not aggravated by the Veteran's active military service. During his July 2013 Board hearing, the Veteran testified that he received treatment, including X-rays, for symptoms related to his left hip approximately 6 months after his discharge from a physician in Mexico. However, he also testified that he no longer had the records of the claimed treatment and that the doctor he saw is no longer practicing and therefore, the record of his claimed treatment was likely not available. A March 2000 private medical record indicates that the Veteran reported trauma to his lumbar spine after a fall of 1.5m. high and resultant lumbar spine pain. He also reported paresthesia of the left pelvic limb when lifting heavy objects. On physical examination, there was evidence of dorsolumbar scoliosis, left pelvic limb shortening of one centimeter on physical examination, as well as muscular atrophy of the entire left pelvis limb with muscular tone loss. He was diagnosed with left L3 to L5 radiculopathy secondary to spine trauma, but no diagnosis of a chronic left hip disability was made. Treatment records from D.S., MD dated in April 2008 show that he concluded that the Veteran had a left hip condition due to his back injury. However, the treatment records also note that X-rays of the hips conducted at that time were normal. Furthermore, he did not give a specific diagnosis for the claimed left hip disability. Therefore, the Board finds that the conclusions of Dr. D.S. related to the Veteran's hips were contradictory and inconclusive, and as such, determines that a left hip disability was not diagnosed at that time. The Veteran testified at his June 2011 Board videoconference hearing that his left hip problems had been getting worse and that the same problems that had existed in service still existed today. He further testified that he had not had any problems with his left leg prior to enlistment and that he had been physically active training for boot camp prior to his enlistment. The Veteran stated that he had sought medical treatment for his left hip shortly after service and that he had been told by a doctor that he had a dislocated hip that had not been treated properly; he said the doctor told him he needed an operation. A November 2011 MRI of the left lower extremity was negative for any joint effusion or dislocation. The left pelvis and left hip were both normal. March 2012 private treatment records show that the Veteran reported lumbar spine problems since falling during military training in San Diego. The examiner noted that the Veteran was discharged with a diagnosis of "dislocated hip," but most of his pain and stiffness had been in his lumbar spine and left buttock. The examiner ultimately concluded that there was no X-ray evidence of prior trauma to the left hip joint. The examiner also stated that he was "completely doubtful that it was dislocated." He concluded instead that the repositioning of the Veteran's hip and pelvis by his reported spinal injury functional scoliosis and muscle spasm created that impression. In accordance with the Board's September 2011 remand, the Veteran was afforded a VA examination in November 2011. The examiner noted that the Veteran had a previous diagnosis of a congenital dislocated hip. Physical examination revealed slight limitation of motion of the left hip, with no functional limitations. The examiner ultimately concluded that the Medical Board diagnosis of congenital dislocated hip during service in 1960 was obviously incorrect because the aforementioned November 2011 MRI revealed a normal left hip and a congenital dislocated hip has never resolved itself. He did not diagnosis any other chronic left hip disability. In fact, it was noted that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms to report. See November 2011 VA examination report. VA outpatient treatment records show that the Veteran has reported left hip pain since an injury in service, but no chronic left hip disability has been diagnosed. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). The Veteran is competent to report his symptoms of left hip pain. However, an underlying disability has never been identified during the current appeal period. Pain without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted). Sanchez-Benitez v. West, 13 Vet App 282 (1999). There are no other findings of an underlying left hip disability in the record. In essence, the evidence of a current diagnosis of a left hip disability is limited to the Veteran's own statements. The Veteran is competent to report his symptoms, but his reports are not competent evidence of the claimed disability since laypersons, such as the Veteran, are not qualified to render a medical diagnosis. 38 C.F.R. § 3.159(a)(1),(2) (2013). In light of the absence of any competent evidence of a current chronic left hip disability, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Lumbar Spine Disability The Veteran contends that he was thrown to the ground during basic training and that he has had problems with his low back since that time. There is a notation in the service treatment records of "chronic back and leg pain" in July 1966. However, there is no other evidence in the service treatment records of a low back injury or disability and there was no low back disability noted at the time of the Veteran's discharge. The probative post-service medical evidence of record does not indicate that the Veteran's current low back disability is related to his active military service. Private treatment records show that the Veteran was treated in July 1999 for complaints of low back pain radiating to his lower left extremity. He reported that he had experienced the symptoms for many years since leaving the military in 1967. He was diagnosed with low back pain sciatica. During private treatment in March 2000, he reported suffering spine trauma after a fall during military service. He was diagnosed with dorsolumbar scoliosis based on X-ray evidence, and radiculopathy, secondary to spine trauma. It has been noted in the record that a CAT scan of the lumbar spine conducted in July 2000 was reported as normal. A September 2004 MRI of the lumbar spine noted multilevel degenerative disc changes. A March 2008 MRI of the lumbar spine revealed left foraminal/far lateral disc herniation at L4-5. See September 2012 VA examiner opinion. A November 2011 MRI of the lumbar spine revealed evidence of lumbar spondylosis with multilevel disc disease central disc protrusion at L5-S1 causing mild central canal narrowing. April 2008 treatment records from D.S., MD at the Spine Center show that the Veteran complained of lumbar and left lower extremity pain. He reported that prior to his enlistment into the military, he was examined and given a "clean bill of health," and that he was originally injured while serving in the Marine Corps in 1966. X-rays at that time revealed mild rotational scoliosis. Dr. D.S. opined that the Veteran's symptoms continued from his military injury. He stated that it was "obvious" that the Veteran was injured while he was in service, due to his prior record and clean physical examination. The Veteran was seen by W.W., MD in March 2012 and diagnosed with post lumbar spinal trauma, "functional" scoliosis, progressive spondylosis and lumbar radiculopathy. The Veteran reported an onset of lumbar problems with a fall during military training. According to the Veteran, the accident resulted in acute lumbar painful stiffness and left hip/buttock pain, along with progressive leg weakness, which he continues to experience. He reported further that he was hospitalized for 5 days and discharged home without being offered any continuing medical care by the VA. The examiner noted that although the Veteran was discharged with a "dislocated hip," most of his pain and stiffness had been in the lumbar spine and the left buttock. The physician concluded that the Veteran had an enduring spinal injury from which he had not recovered. He stated further that initial medical management was insufficient, and the injury had been complicated by progressive spinal changes imposed after the injury. He also concluded that the signs of scoliosis after the injury were due to muscle dysfunction, not a growth or developmental disorder, and it did not precede the accident; but is a common post-traumatic finding. The Board finds that the opinions of D.S., MD and W.W., MD are of limited probative value. To begin with, both opinions provide little rationale for their positive opinions. Furthermore, the opinions are also weakened by the fact that neither physician had the opportunity to review the Veteran's claims file. It is true that the failure to review the claims file does not necessarily render a medical opinion inadequate. However, factors that may be considered in assessing a medical opinion include a physician's access to the claims file or other pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These opinions appear to be based on a history provided by the Veteran. Had these physicians been able to review the Veteran's complete medical history, including his service treatment records, they would have noted the lack of evidence of treatment or complaint related to his back, and the absence of treatment or diagnosis of disabilities for several decades after service. Furthermore, neither examiner offered any real logical rationale for their opinion. Both opinions appear to be based on the physicians' conclusions that the Veteran's reports of an in-service injury that accounted for his current symptoms had been substantiated, which is not the case. VA and private treatment records show complaints of low back pain, which the Veteran reports began following an injury in service. They also show a history of spinal stenosis and that he has been diagnosed with scoliosis, lumbar radiculopathy and more recently, progressive spondylosis. The earliest post-service evidence of record related to treatment for symptoms of a low back disability is in 1999, more than 30 years after separation from service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). A VA examiner who reviewed the Veteran's claims file and examined the Veteran in November 2011, submitted an opinion in September 2012, wherein he concluded that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, he noted that spondylosis/degenerative disc disease of the lumbar spine typically affects individuals over the age of 60 years. Furthermore, he noted that the CT of the lumbar spine in 2000 (more than 30 years post service) was reported as normal, negating any possible association between the injury in 1967 and development of posttraumatic changes related to his current diagnosis. He also noted that there was no evidence of trauma to the back in service. See September 2012 VA opinion. There is no other probative medical evidence of record, VA or private, which indicates that the Veteran's current low back disability is related to his active military service. The presumption of service connection for arthritis diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran's degenerative arthritis of the lumbar spine was initially diagnosed many years after his discharge from service. The Board does acknowledge the Veteran's contentions that he developed a low back disorder in service and had a continuity of symptomatology thereafter. The Board notes that the Veteran is competent to report his experience and symptoms in service and thereafter, although he is not competent to provide a diagnosis or an etiological opinion. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran can attest to factual matters of which he or she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to report that he has continued to have problems with his low back since service. However, his reports must be weighed against the contemporaneous record. As noted above, service treatment records are negative for any evidence of a low back disability during active military service. Furthermore, the Veteran did not seek treatment for symptoms related to his low back until 1999, more than 30 years after his discharge. The Board finds the contemporaneous evidence to be more probative and credible than the Veteran's current assertions. Contemporaneous evidence has greater probative value than history as reported by the Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Moreover, a VA examiner provided a competent medical opinion that the Veteran's current low back disability was not incurred in service. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disability. Such a disorder did not manifest during service or for many years thereafter and has not been shown to be causally or etiologically related to an event, disease, or injury in service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for a left hip disability is denied. Service connection for a lumbar spine disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs