Citation Nr: 1342580 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 08-24 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right hip disorder, to include recurrent right hip dislocation. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before an Acting Veterans Law Judge at a March 2010 Travel Board hearing. A copy of that hearing transcript has been associated with the claims file. The presiding Acting Veterans Law Judge is no longer with the Board, and the Veteran was informed of her right to an additional hearing in a June 2012 correspondence. In June 2012 the Veteran informed the Board that she wishes for her appeal to continue and does not request an additional hearing. This appeal was previously remanded by the Board for further development in September 2010, September 2012, and August 2013. The case has been returned to the Board for further appellate consideration. A review of Virtual VA reveals that it contains additional documents relevant to this claim. Further, this appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of the appellant's case should be applied to these electronic records. The issues of entitlement to service connection for residuals of head trauma, headaches from head trauma, sinus infection/pain, and tinnitus were raised by the Veteran in a July 2013 correspondence, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a right hip disorder, to include recurrent right hip dislocation, due to a disease or injury in service. Arthritis was first shown years after service. CONCLUSION OF LAW The criteria for establishing service connection for a right hip disorder, to include recurrent right hip dislocation, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a February 2007 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate her claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The case was last adjudicated in November 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, private medical records, VA treatment records, reports of VA examinations, the transcript of Board hearing testimony, and various statements of the Veteran. As noted, the Veteran's claim was remanded for additional development in September 2010, September 2012, and August 2013. Additional records were requested or acquired, and new VA examinations were held and their accompanying reports associated with the claims file. All new evidence was considered in a November 2013 supplemental statement of the case. The Board finds that there was substantial compliance with the remand directives, fulfilling the duty to assist, as to the matter decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, at the time of March 2010 Board hearing, the issue on appeal was explained and questions were asked designed to elicit evidence that may have been overlooked. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent argument in compliance with 38 C.F.R. § 3.103(c)(3) (2013). In sum, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran is claiming entitlement to service connection for a right hip disorder which she asserts first had its onset during her active duty service. In a January 2011 statement the Veteran explained that she had injured her hip on several occasions in service and that she is in "constant pain daily" from her hip disorder. In May 2013 the Veteran submitted a statement explaining that in service she once had to have physical manipulation to push her hip back into its socket, that she strained her hips by wearing heels with her uniform, and that she fell down on numerous occasions during service. She also stated that she had been struck by a van during service, pinning her against a rented trailer. The Veteran has indicated that she has continued to have pain and mobility problems with her hip from the time of her service until the present. The Veteran's service treatment records include numerous complaints and treatments related to her lower back and hips beginning in October 1974. These records include a report of her hip giving out in October 1974, intermittent and sharp right hip pain in November 1976, and pain and instability in her sacrum and legs in April 1979. In November 1988 the Veteran reported a "grating" feeling in her hips, and in February 1989 she complained of hip arthritis and tailbone pain since the birth of her child two years prior. No X-rays taken during the Veteran's service showed findings of arthritis, but January 1991 X-rays showed a questionable "crack" in her coccyx and calcific densities within the pelvic region. On several occasions in 1991 she was treated for hip, lower back, and leg pain. Records on file for 1993 reveal she complained of and filed a claim for low back and coccyx pain. Service connection was denied following essentially normal findings on examination. No complaints or findings referable to the hips were recorded. The Veteran's private medical records contain complaints and treatment related to her right hip and lower back. In August 2005 she reported low back pain and that her hip bone was out of its socket. She was diagnosed with lumbosacral pain. In February 2008 she again reported hip socket problems and inability to stand or sit for a long time. X-ray findings were negative for any abnormalities. The records also contain an August 2008 diagnosis of chronic dislocation of the right hip and indicate that she has received regular treatment for hip pain and instability. In September 2008 the Veteran was treated for functional problems of her sacroiliac joint and her low back, at which time she complained of having trouble with her right hip area for the past 20 years, in which her right hip joint "falls out of socket from time to time." In October 2008 she was twice treated for pain in her right hip and was noted to have a popping iliotibial band. In November 2010 the Veteran was afforded a VA examination. X-rays were performed, and the Veteran was diagnosed with degenerative joint disease. The examiner opined that the Veteran's disability was not likely related to her active duty service. He stated that the Veteran's X-rays in service were essentially negative and that her current orthopedic treatment had found no abnormalities The Veteran was afforded an additional VA examination in April 2013. The examiner reviewed the Veteran's claims file and medical history and examined the Veteran. On examination, the examiner could palpate a snapping sensation in the Veteran's iliotibial band, and noted that the Veteran walked with a limp and fell during the examination. New X-rays were taken, and the examiner found no evidence of acetabular spurs, degenerative changes, or hypertrophic spurs. The examiner found that the Veteran did not have degenerative joint disease, but instead diagnosed the Veteran with right snapping hip syndrome. The examiner opined that this disorder was not related to the Veteran's service because this condition had not been identified or diagnosed in her service treatment records. The Veteran also underwent a VA examination in October 2013. The examiner reviewed the claims file, discussed the Veteran's history, and performed a personal examination of the Veteran. He reported that the Veteran had a chronic history of right hip pain and recorded problems with hip subluxation or dislocation in service. The examiner noted that there was no radiographic evidence of hip subluxation or dislocation, and he was not able to elicit any findings of snapping hip on examination. X-rays showed mild osteoarthritis with subchondral sclerosis on acetabulum with no signs of joint space narrowing. The examiner found that it was less likely than not that the Veteran's current hip pain was due to her time in service because her mild degenerative joint disease was appropriate for her age. In light of the foregoing evidence, the preponderance of the evidence weighs against granting service connection. The evidence of record does show that the Veteran has currently diagnosed right hip disorders, including osteoarthritis and snapping hip syndrome, as has been noted by her private treating physicians and the examining VA physicians. However, the weight of the evidence does not reflect that these are chronic disorders that had their onset during service or that they are otherwise related to any incident or injury during the Veteran's active duty service. There is no competent medical evidence of record indicating that the Veteran's degenerative joint disease, snapping hip syndrome, or any other right knee disorder is related to service. All three VA medical opinions of record, including the October 2013 VA examination opinion, which was made following a full review of the Veteran's medical records and history and with adequate rationale and consideration of the Veteran's lay statements provided, state that the Veteran's current right hip disorder is not related to her recorded hip problems in service or any other in-service incident. The October 2013 examiner clearly indicated that the Veteran's right hip pain was likely caused by osteoarthritis, and that the degree of osteoarthritis found was age appropriate. The Board also points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only statements in favor of a finding of a relationship to service are those of the Veteran herself. The Board acknowledges the Veteran's statements indicating that she experienced many hip problems in service and that she has had intermittent hip pain and instability since that time, as she is competent to report on matters observed or within her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology of her current hip disabilities and whether they are the same or related to her hip problems in service, as such requires medical expertise to determine such etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion that her current hip disabilities are the same as or are related to her hip problems in service is not a competent medical opinion. As such, the medical findings and opinion of the VA examiners warrant greater probative weight than the Veteran's lay contentions. Moreover, the opinion is consistent with normal findings in 1993. While appellant now claims she meant to file a claim for a hip, not a back, the records at the time reveal no pertinent findings. Appellant had no difficulty identifying the hip as her point of complaint several times during service as noted. Here the first showing of chronic hip impairment is years post service, and as explained is unrelated to service. Although the Veteran has claimed having intermittent ongoing pain in her right hip since service, she has indicated that she was not treated by any medical professionals for many years, and there is therefore no competent medical evidence to verify whether she has had a chronic disability of the right hip since service. The first medical evidence of record following her discharge from service is only from 2005, approximately 12 years after separation. There is no X-ray evidence of arthritis until 2008. As there is no evidence that the Veteran's right hip arthritis manifested within 1 year of discharge from service, there is therefore no evidence which would allow for a grant of service connection on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In short, as there is no competent and credible evidence that the Veteran's right hip disability was incurred in service or that arthritis was manifested to a compensable degree within a year of separation from service, the preponderance of the evidence is against the claim for service connection. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right hip disorder, to include recurrent right hip dislocation, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs