Citation Nr: 1414223	
Decision Date: 04/02/14    Archive Date: 04/11/14

DOCKET NO.  10-38 557	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a left hip disorder, claimed as left hip bursitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Megan Marzec, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1988 to April 2009.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The evidence of record does not show that the Veteran has a left hip disorder that is etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for a left hip disorder have not been met.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013).  

The Board finds that VA's duty to notify the Veteran has been met.  The record reflects that prior to the initial adjudication of the Veteran's claim for service connection, the Veteran received pre-discharge notice in April 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The April 2009 notice also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA's duty to assist the Veteran has also been met.  Service treatment records, and identified VA treatment records have been associated with the claims file.  Neither the Veteran nor his representative has identified any outstanding medical records, which could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.  

VA examinations were provided in April 2009 and May 2011 in order to ascertain the nature and etiology of the Veteran's claimed left hip disorder.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, as discussed below, the April 2009 and May 2011 examination reports are adequate for the purposes of adjudicating the Veteran's claim for entitlement to service connection for a left hip disorder.  Thus, VA's duty to assist with respect to obtaining a VA opinion has been met.  See 38 C.F.R. § 3.159(c)(4) (2013).    

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

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, 1131; 38 C.F.R. § 3.303.  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Board notes that arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a); therefore the claimed disability may be subject to service connection based on continuity of symptomatology assuming that it involves arthritis.  

Moreover, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

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 a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); 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).


Analysis

A review of the Veteran's service treatment records shows occasional complaints of left hip pain.  In March 1988, the Veteran complained of left back pain and gluteal pain with some numbness over the left thigh.  Upon physical examination, the examiner noted that the Veteran's left hip strength was normal, and there were no muscle spasms.  The examiner diagnosed intermittent left side low back and gluteal pain.  In January and February 1989, the Veteran complained of left hip pain and low back pain.  The examiner diagnosed mechanical low back pain and referred the Veteran to physical therapy.  In September 2003, the Veteran complained of left hip/groin area pain.  The examiner diagnosed a sprain of the left hamstring and prescribed pain medication.  In March 2009, the Veteran was afforded a retirement examination.  On the report of medical history, the Veteran specifically checked "no" in response to the question of whether he ever had "arthritis, rheumatism, or bursitis."  The Veteran checked "yes" in response to the question of whether he ever had "impaired use of arms, legs, hands, or feet."  The Veteran also checked "yes" in response to the question of whether he "suffered from any injury or illness while on active duty for which [he] did not seek medical care."  He reported that he had injured his hip but that a scan resulted in nothing.  Upon physical examination, the examiner noted that the Veteran had no back pain, pain was localized to one or more joints, and there was no localized joint swelling and no limb pain. 

A review of post-service medical treatment records shows complaints of left hip pain.  In July 2010, the Veteran was diagnosed with arthralgia of the knee, hip, shoulder and ankle.  The examiner noted that the Veteran was stable at that time and would return for further treatment if necessary.  In August 2011, the Veteran reported chronic numbness in his feet, and intermittent tingling and occasional right distal leg pain.  The examiner noted that there was no evidence of peripheral neuropathy or lumbar radiculopathy affecting his lower extremities.

In April 2009, the Veteran was afforded a VA examination.  The Veteran reported that he had left hip bursitis for approximately five years.  He reported constant pain that was squeezing, aching, and sharp.  He reported that the pain occurred approximately five times a month for about two days.  He also reported accompanying stiffness.  

Upon physical examination the examiner noted no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement.  The examiner noted that the range of motion of the bilateral hip joints was 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.  The examiner noted that the left joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  The Veteran was afforded a left hip x-ray which was within normal limits.  The examiner noted that there was no diagnosis of a left hip disorder or left hip bursitis because there was no pathology to render a diagnosis.  

In May 2011, the Veteran was afforded a VA examination of the peripheral nerves.  The Veteran reported pain in his left buttock daily since 2007.  He reported that there was no injury, but that he had pain with running and playing soccer.  The Veteran reported that a doctor diagnosed bursitis and prescribed a steroid injection in the knee.  The Veteran reported constant pain of 2/10 with walking pain up to 6-7/10 approximately 2-3 times per month.  The Veteran was afforded x-rays which showed femoral heads that were normal in shape and density, and no bony deformity or hip joint space narrowing.  The examiner noted that the Veteran requested the left hip strain problem to be added on the day of the examination.  The examiner noted that there was no pathology found and that there was a normal hip x-ray.

Based on the evidence of record, the Board finds that service connection for a left hip disorder is not warranted.  The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought.  The Board finds it significant that the Veteran has presented no evidence dated during the appeal period showing an actual diagnosis of a left hip disorder.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In the absence of proof of a current disability, service connection is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  

The Board notes that the Veteran has asserted that he has pain in the left hip.  The Board emphasizes that pain itself, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  No evidence has been provided that associates the Veteran's complaints of left hip pain to a diagnosed disability.  The Veteran has also not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Thus, this lay evidence does not constitute competent medical evidence and lacks probative value. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a left hip disorder is not warranted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to service connection for a left hip disorder.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs