Citation Nr: 1342207 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-30 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left hip disorder, to include as secondary to service-connected low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his substantive appeal, the Veteran requested a hearing before the Board at the RO. However, in August 2010, he withdrew that request and instead requested a hearing with a Decision Review Officer (DRO) at the RO. He was thereafter scheduled for a hearing in July 2011 and was notified of it in a March 2011 letter addressed to this last known address. However, the Veteran failed to report for the July 2011 hearing. To the Board's knowledge, the Veteran has offered no explanation as to why he failed to appear for the scheduled hearing and has not requested that it be rescheduled. Accordingly, the Board will proceed to a decision on this appeal as if the Veteran's hearing request was withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board also notes that, 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 the Veteran's service representative filed a brief prior to the Board's decision. The remaining documents are either duplicative or irrelevant to the issue on appeal. FINDING OF FACT The Veteran has not been shown to have a left hip disorder that is related to his military service or to his service-connected low back strain. CONCLUSION OF LAW A left hip disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the Veteran with such notice in September 2008, prior to the decision on the claim in March 2009. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the September 2008 notice letter about the information and evidence that is necessary to substantiate his claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. He has also not identified any available, outstanding evidence that is pertinent to the claim being decided herein. A medical opinion regarding the etiology of the Veteran's left hip disorder was obtained in March 2009. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Upon review, the Board finds that the March 2009 medical opinion was adequate. In this regard, the Board notes that the opinion was predicated on a review of the Veteran's medical history and claims file. The examiner considered all of the pertinent evidence of record and provided a rationale for the opinion stated. The Veteran and service representative have also not alleged that the March 2009 VA medical opinion was inadequate. However, the Board does observe that, in his May 2009 notice of disagreement, the Veteran stated that the RO had incorrectly addressed two facts surrounding his left hip disorder. He contended that he fell from a ladder that was eight feet high rather than six feet high and that he was found unconscious, as opposed conscious, as stated in the rating decision. While the VA examiner noted a six foot high ladder and no loss of consciousness in his opinion, the Board finds that there is no prejudice to the Veteran in doing so. These facts regarding the Veteran's fall were noted in the Veteran's medical records. Moreover, the VA examiner did not rely on the height of the ladder or the Veteran's state of consciousness at the time of the fall in his rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In considering the evidence of records under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left hip disorder. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of a left hip disorder or injury. His March 1968 separation examination also showed that his lower extremities were normal, and he denied having a medical history of arthritis or rheumatism; bone, joint, or other deformity; and a history of broken bones. In fact, there is no evidence of a left hip disorder until many decades after his military service. Moreover, the Board notes that the Veteran has never alleged that he had a left hip disorder in service or injured his hip therein. Instead, he has only claimed that the disorder is secondary to his service-connected low back strain. Therefore, the Board finds that a left hip disorder did not manifest in service or for many years thereafter and that there was no injury, disease, or event in service to which a current disorder could be related. As to the Veteran's claim that he has a left hip disorder that is related to his service-connected low back strain, the Board finds that the evidence of record does not support this contention. Although the Veteran has a current diagnosis of a left hip disorder and is service-connected for a low back strain, the evidence does not establish a relationship between the two disorders. Review of the claims file demonstrates that the Veteran presented to a hospital in July 2008 after falling from a ladder, which was 40 years after his period of service. He was diagnosed with a left intertrochanteric femur fracture and underwent an intramedullary hip screw fixation surgery. Records show that the Veteran was admitted to a rehabilitation facility a few days after surgery. Records from that facility indicate that the Veteran fell from a ladder while performing home repairs. The Veteran reported that he could not recall how he fell, whether he became dizzy, or whether he lost his balance. He did remember that the ladder was stable on the concrete and was standing still after his fall. The Veteran's private treatment records for his left hip fracture discuss this fall as the cause of his left hip disorder. There is no reference to his low back disorder in his medical records. During an October 2008 appointment at a VA facility, the Veteran reported that "his body has jerky movements" and that this was the reason for his fall from the ladder. In March 2009, the RO obtained a medical opinion regarding the etiology of the Veteran's left hip disorder in connection with his claim. The examiner reviewed the claims file and opined that there was no evidence that would connect the Veteran's service-connected low back disorder to his left hip fracture. Instead, he opined that the left hip fracture was caused by the Veteran's fall from the ladder. The only evidence supporting the Veteran's claim are lay statements. In this regard, the Veteran has asserted that his left hip disorder is due to his service-connected low back strain, and his representative has contended that the Veteran lost his balance and fell as a result of his low back disorder. The Board notes that laypersons are competent to attest to matters of which they have first-hand knowledge. 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); 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, although the Veteran is competent to report the circumstances regarding his fall and subsequent left hip disorder, the Board finds that such statements are not credible. In this regard, the admission records from the time of the injury show that the Veteran could not recall what caused his fall. The Veteran specifically reported that he did not know whether he became dizzy or lost his balance prior to the fall. However, since that time, he has claimed that he lost his balance and that his body has jerky movements. This latter statement directly contradicts his contemporaneous report that he could recall how he fell or whether he lost his balance. Therefore, the Board finds these inconsistent reports diminish the credibility of the Veteran's reports regarding the circumstances of the fall. In addition, the March 2009 VA examiner reviewed the Veteran's claims file and opined that there was no evidence to connect the left hip disorder to the Veteran's back disorder. While the Board has considered the Veteran's opinion, the Board finds that the VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge, a review of the claims file, and the Veteran's medical history. There is no other evidence of record supporting the Veteran's claim. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a left hip disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left hip disorder is not warranted. ORDER Service connection for a left hip disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs