Citation Nr: 1343181	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  09-27 412	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial compensable evaluation for service-connected lumbar strain.

2.  Entitlement to service connection for a right hip disability.

3.  Entitlement to service connection for flat feet.


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel







INTRODUCTION

The Veteran served on active duty from July 2005 to December 2008. 

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Veteran was scheduled to appear at the Atlanta RO to have a hearing before a Veterans Law Judge.  Although a letter from the RO dated July 19, 2013 informing him of the hearing date and location was returned as undeliverable, a subsequent letter dated July 29, 2013 informing him of the hearing date and location was not.  The Veteran failed to report for the hearing, and he has not since asked for it to be rescheduled.  Accordingly, the hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012). 

The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system.

The issue of entitlement to service connection for flat feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's lumbar spine disability is manifested by pain, muscle spasm, and minimal limitation of motion.  The evidence does not show forward flexion of the thoracolumbar spine between 30 and 60 degrees, combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm, guarding, or localized tenderness that results in abnormal gait or abnormal spinal contour. There are no associated neurological manifestations.

2.  The evidence of record does not show that the Veteran's service-connected lumbar spine disability is so exceptional or unusual that referral for extraschedular consideration by a designated authority is required.

3.  The Veteran does not have a current diagnosis of a right hip disability.


CONCLUSIONS OF LAW

1.  Throughout the appeal, the criteria for an evaluation of 10 percent for the Veteran's service-connected lumbar spine disability are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013).

2.  Application of the extraschedular rating provisions is not warranted for the Veteran's service-connected lumbar spine disability.  38 C.F.R. § 3.321(b) (2013).

3.  A right hip disability was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks entitlement to an initial compensable evaluation for a lumbar spine disability and entitlement to service connection for a right hip disability.  In the interest of clarity, the Board will discuss certain preliminary matters.  The issues on appeal will then be analyzed, and a decision rendered.

The Veterans Claims Assistance Act Of 2000

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)).  The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants.  

Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that he/she is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  

Further, the United States Court of Appeals for Veterans Claims (Court) has 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).  The Court also explained that proper notification must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id.  

The Court has also held, however, that VCAA notice is not required under circumstances where a claim for service connection is granted, a rating and an effective date are assigned, and the claimant files an appeal as to the evaluation assigned to that grant.  See Dingess v. Nicholson, 19 Vet. App. at 491 (in which the Court held that, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled").  Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application.  Id.  

Here, the Veteran's claim for an increased rating for his service-connected lumbar spine disability essentially fall within this fact pattern.  Prior to the RO's February 2009 grant of service connection for a lumbar spine disability, the Veteran was notified (by a February 2009 letter) of the evidence needed to establish that underlying issue.  After receiving notice of the award of service connection for the disability here at issue, the Veteran perfected a timely appeal with respect to the rating initially assigned.  Clearly, no further section 5103(a) notice is required for this increased rating claim.  

As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the Veteran has been provided with various communications (including the notice of the February 2009 rating decision and the June 2009 statement of the case) that contain notice of VA's rating criteria, his appellate rights, a summary of relevant evidence, citations to applicable law, and a discussion of the reasons for the decision made by the AOJ.  In short, the procedural requirements of the law have been satisfied.  No further due process development of notification of this increased rating claim is required.  

With regard to the Veteran's right hip disability claim, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the disability rating and effective-date elements of the claim, by a letter mailed in February 2009, prior to the initial adjudication of his claim.  In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA.

In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims.  There is no reasonable possibility that further assistance would aid in substantiating these claims.  The pertinent evidence of record includes the Veteran's statements and service treatment records.  

Also, the Veteran was afforded VA examinations for his lumbar spine disability and claimed right hip disability in December 2008.  The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record.  Furthermore, the examination report contains sufficient information to rate the Veteran's lumbar spine disability under the appropriate diagnostic criteria.  The Board also notes that the Veteran has not contended, nor does the evidence of record otherwise indicate, that his lumbar spine disability has worsened since the December 2008 VA examination.  The Board therefore concludes that the VA examinations are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

The Board is cognizant of the fact that the December 2008 VA examiner did not specifically indicate whether the Veteran's claims folder was available and reviewed.  However, such did not have an adverse effect on the adequacy of the examinations of the lumbar spine and right hip.  Notably, as previously indicated, the examiners fully considered the Veteran's complaints, to include his complaints of symptoms associated with his lumbar spine and right hip disabilities.  Physical examinations were then performed that addressed all the relevant rating criteria.  

The Board notes that the Veteran has indicated that he received private treatment for his disabilities on appeal from J.S. and E.N.  He submitted a medical authorization form in March 2009 in order for the RO to obtain records from these facilities.  However, the Veteran did not provide the addresses of these treatment providers.  The RO thereafter contacted the Veteran in March 2009 requesting that he provide the addresses for these providers.  As evidenced by the claims folder, the Veteran did not provide addresses for either of these providers.    

Although the absence of the private treatment records from J.S. and E.N. is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records because the Veteran had an obligation to assist VA in the development of his lumbar spine and right hip disability claims by providing the addresses of J.S. and E.N.  See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence").  The Board's decision to not remand the appeal to obtain these records is supported by the fact that the RO made a sufficient attempt to locate the private treatment records.  

Under these circumstances, the Board finds that VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf.

Additionally, the Board observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2013).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  Furthermore, he failed to appear for a scheduled hearing before a Veterans Law Judge.

Accordingly, the Board will proceed to a decision as to the issues of entitlement to an initial compensable evaluation for a lumbar spine disability and entitlement to service connection for a right hip disability.

Higher evaluation for lumbar spine disability

Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  To evaluate the severity of a particular disability, it is essential to consider its history.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2013).

Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  See 38 C.F.R. §§ 3.102, 4.3 (2013).  In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2013).

The Court has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Where entitlement to compensation has already been established, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45. 

Service connection for a lumbar strain was granted in a February 2009 rating decision, under Diagnostic Code 5237 (lumbosacral strain). 

Diagnostic Code 5237 is subsumed into the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).

Under the general rating criteria for disabilities of the spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

An evaluation of 40 or greater requires forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the general formula for diseases and injuries of the spine.  38 C.F.R.        § 4.71a, Code 5242.

An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, and an evaluation of 100 percent requires unfavorably ankylosis of the entire spine.

Factual Background and Analysis

The Veteran was afforded a VA examination in December 2008.  He complained of stiffness and numbness, as well as crushing and sharp pain in the lower back area which occurred three times per week and each time lasted for one hour.  He reported that the pain could be elicited by physical activity and came spontaneously.  The pain was relieved by rest and medication.  He further reported that the lumbar spine pain made it difficult for him to play with his children, forced him out of the military, and made him unable to perform sexual intercourse.  

Upon examination, the VA examiner reported that the Veteran's posture and gait were within normal limits.  Moreover, the examination did not reveal any evidence of radiating pain on movement.  There was also no evidence of muscle spasm, tenderness, or ankylosis.  Range of motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees.  The examiner further noted that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  Additionally, there was normal head position with symmetry in appearance as well as symmetry of spinal motion with normal curves of the spine.  There were no signs of lumbar intervertebral syndrome with chronic and permanent nerve root involvement.  An X-ray report of the lumbar spine was within normal limits.  The examiner declined to provide a diagnosis of a lumbar spine disability as there was no pathology to render a diagnosis.

The Board notes the Veteran's report of symptomatology associated with his lumbar spine disability dated March 2009.  At that time, he reported that he could not stand for long periods of time and the disability caused difficulty playing with his children, cooking, and playing sports.  He further noted spasms and tenderness when changing his baby and that he could not perform as many activities as he used to.  

After a review of all the evidence in this Veteran's case, the Board finds that a 10 percent rating is warranted for the service-connected lumbar disability, but no higher.

The aforementioned evidence reflects that although the Veteran does not have compensable limitation of motion under the 10 percent criteria, he does have spasms and tenderness of the lumbar spine under the rigors of normal daily life.  Although spasms were not replicated on examination, the Board recognizes that the Veteran is competent and credible to describe his every day symptoms.  As such, there being competent and credible evidence of spasms and tenderness, the Board finds that a 10 percent rating is warranted.  

That said, as the muscle spasms and tenderness have not been shown to result in objective evidence of abnormal gait or abnormal spinal contour, the criteria for the next higher, 20 percent rating are not met.  Furthermore, the Veteran's range of motion is not limited to the extent contemplated by the 20 percent rating criteria.  In fact, as described above, it does not meet the less stringent criteria for the 10 percent rating.

Also with regard to Note (1) of the General Rating Formula for Disease and Injuries of the Spine, the Board observes that the medical evidence fails to show the Veteran's lumbar spine disability has been productive of any objective neurological abnormalities.  Further, the Veteran has not identified any bladder or bowel dysfunction associated with his lumbar spine disability, and none has been diagnosed.

The provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected lumbar spine disability because the evidence of record does not document any incapacitating episodes with bed rest prescribed by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013) (effective from September 26, 2003).

The Board notes that under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis) established by x-ray findings will be rated based on limitation of motion for the specific joint.  When however, the limitation of motion involved is noncompensable under the appropriate diagnostic code, as here, a rating of 10 percent is for application.  In this case, however, the competent and probative evidence is pertinently absent any findings of arthritis of the lumbar spine.  Thus, Diagnostic Code 5003 is not for application.

The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07.  The competent medical evidence reflects that the now assigned 10 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms.  The Board reiterates that the December 2008 VA examiner specifically reported no evidence of pain on movement, and that joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. 

Accordingly, the Board finds that throughout the appeal period, an initial 10 percent evaluation for a lumbar spine disability is warranted, but no higher. 

Extraschedular consideration

In evaluating the severity of his service-connected lumbar spine disability, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The first of the three elements of an extraschedular rating under § 3.321(b)(1) is a finding of either the RO or the Board that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate."  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability."  Thun, 22 Vet. App. at 115.  "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required."  Id.

Neither the first nor second Thun element is satisfied here.  The Veteran's service-connected lumbar spine disability is manifested by signs and symptoms such as pain and muscle spasm, which impair his ability to perform activities such as playing with his children, cooking, and playing sports.  These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to disability of the lumbar spine provide disability ratings on the basis of limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5237.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in standing for long periods of time and interference in daily activities.  In short, there is nothing exceptional or unusual about the Veteran's lumbar spine because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet. App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present.  The Board notes that it has no reason to doubt that the Veteran's lumbar spine symptomatology adversely impacts his employability; however, this is specifically contemplated by the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired].  Furthermore, the Veteran does not contend, and the evidence of record does not suggest, that his lumbar spine disability has resulted in any hospitalizations during the period under consideration.  Therefore, the Veteran's service-connected lumbar spine disability does not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b)(1).  Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.
Rice consideration

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the evidence of record does not show, and the Veteran has not asserted, that his lumbar spine disability renders him unable to obtain substantial and gainful employment.  Accordingly, the Board concludes that the issue of TDIU has not been raised in this case.

Service connection for a right hip disability

The Veteran contends that he has a right hip disability that is related to his military service.  Specifically, he reported that during service, his right hip began to "pop" and that he has experienced right hip pain since discharge from service.  

Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).

In order to establish service connection for the claimed disorder, there must be 
(1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

For certain chronic disorders, including arthritis, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service.  See 38 U.S.C.A. §§  1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013).

Service connection presupposes a diagnosis of a current disability.  See Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  A "current disability" means a disability shown by competent medical evidence to exist.  See Chelte v. Brown, 10 Vet. App. 268 (1997).

The Board notes that the record does not reflect medical evidence showing any manifestations of arthritis during the one-year presumptive period after the Veteran's separation from service.  Indeed, as will be discussed below, the competent and probative evidence is absent a current right hip disability.  Thus, service connection is not warranted on a presumptive basis.  38 C.F.R. §§ 3.307, 3.309.  The Board will next consider the Veteran's service connection claim on a direct basis.    

As indicated above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson, supra.

With respect to Hickson element (1), the competent medical evidence of record does not demonstrate that the Veteran is currently diagnosed with a chronic right hip disability.

The Board notes that the Veteran was afforded a VA examination for his claimed right hip disability in December 2008.  The Veteran complained of weakness, stiffness, giving way, and locking as well as pain which occurred one time per week and lasted for one hour.  Upon examination of the Veteran, the VA examiner reported no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement.  Range of motion testing revealed flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees.  Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  An X-ray report of the right hip was within normal limits.  The examiner declined to diagnose the Veteran with a right hip disability, as there was no pathology to render a diagnosis.  

The December 2008 VA examination report was based upon thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].    

The Board wishes to make it clear that it has no reason to doubt that the Veteran experiences certain symptoms such as right hip pain.  However, symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). 

With regard to lay statements made by the Veteran in connection with his claim, in relevant part, 38 U.S.C.A. 1154(a) (West 2002) 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).  "Lay 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 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including right hip pain) as a lay person is not competent to associate any of his claimed symptoms to a chronic right hip disability.  Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person.  In the absence of evidence indicating that the Veteran has medical training in the field of orthopedics to render medical opinions, the Board must find that his contention with regard to a diagnosis of a chronic right hip disability to be of no probative value.  See also 38 C.F.R. § 3.159(a)(1) (2013) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions].  Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a chronic right hip disability.

Because the weight of the evidence of record does not substantiate a current diagnosis of a chronic right hip disability, the first Hickson element is not met, and service connection is not warranted on that basis.  See Degmetich v. Brown, 104 F.3d 132 (Fed. Cir. 1997); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist].

In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right hip disability.  The benefit sought on appeal is accordingly denied.  

ORDER

Entitlement to an initial 10 percent evaluation for service-connected lumbar strain is granted, subject to regulations applicable to the payment of monetary benefits.

Entitlement to service connection for a right hip disability is denied.


REMAND

A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service."

The Veteran's July 2005 service entrance examination documents a diagnosis of mild asymptomatic flat feet.  The presumption of soundness has therefore been rebutted.  Moreover, the Veteran received treatment during service in June 2008 for foot pain.  The remainder of his service treatment records is absent indication of complaints of or treatment for flat feet.  

There is no opinion of record that addresses whether there is clear and unmistakable evidence that the Veteran's flat feet disability was not aggravated by service.  See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2013); Wagner, supra; VAOPGCPREC 3-2003.  In light of the foregoing, the Board finds that an opinion for such must be obtained.  See 38 U.S.C.A. § 5103A(d) (West 2002); Charles v. Principi, 16 Vet. App.  370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). 
  

Accordingly, the case is REMANDED for the following action:

1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for flat feet.  After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record.  

If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim.  The Veteran must then be given an opportunity to respond.  

2. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his current flat feet disability.  The claims file, and any pertinent records housed electronically, must be reviewed in conjunction with the examination.  All testing deemed necessary must be conducted and results reported in detail.  

Based on a review of the claims folder and the clinical findings of the examination, the examiner must address the following:

a) Whether the Veteran's flat feet is a congenital or developmental defect or disease.  [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating.  VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)].    

b) If it is a congenital or developmental defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in active duty that resulted in additional disability of the feet.    

c) If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing flat feet WAS NOT aggravated (i.e., permanently worsened) during service, to include treatment the Veteran received for foot pain in June 2008, or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress.  

The examiner should indicate in his/her report that the claims file was reviewed.  A rationale for all opinions expressed should be provided.  A report should be prepared and associated with the Veteran's VA claims folder.  

3. When the development requested has been completed, the case should be reviewed on the basis of additional evidence.  If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs