Citation Nr: 1421849 Decision Date: 05/14/14 Archive Date: 05/21/14 DOCKET NO. 07-09 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a groin disability other than a hernia, claimed as secondary to a service-connected hip disability, left knee disability, and/or right great toe disability (secondary service connection). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to February 1984, with additional service in the Army National Guard from August 1984 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board notes that the Veteran attended a Board hearing at the RO on this issue in September 2009. In April 2012, the Board remanded the appeal for additional evidentiary development. In May 2013, the VA informed the Veteran by letter that the VLJ who conducted his hearing was no longer available to consider his appeal as an individual member of the Board, and that the Veteran could have another Board hearing before a different VLJ. The Veteran responded that he wanted to appear at a hearing before the VLJ who would be assigned to decide his appeal. In July 2013, the Board remanded the appeal for a new hearing. A hearing was scheduled in April 2014; however, the Veteran did not appear. The Board will consider the Veteran's failure to appear as a withdrawal of his hearing request. 38 C.F.R. § 20.704(e). The Board will proceed with appellate review. The Board has not only reviewed the physical claims file but also the Veteran's file on the "Virtual VA" paperless claims processing systems to ensure a total review of the evidence. FINDING OF FACT The evidence of record does not show that the Veteran has a groin disability that began in service or can be linked to any established in-service injury, disease, or event, or any other service-connected disability. CONCLUSION OF LAW The criteria for service connection for a groin disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from "disease" or "injury" incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be established on a secondary basis for a disability that is shown to be 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) caused by or (b) aggravated by a service-connected disability. Id. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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 Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that he has a groin disability that has continued since a left groin pull that occurred in July 1982 during active duty service. Alternatively, the Veteran asserts that his groin disability is a result of his service-connected disabilities. The Veteran is currently service connected, as is relevant for this appeal, for right great toe injury residuals, left hip muscle strain with bursitis and arthritis associated with right great toe injury residuals, left knee degenerative arthritis with limitation of movement status post medial meniscus debridement associated with right great toe injury residuals, and left knee degenerative arthritis with lateral instability status post medial meniscus debridement associated with right great toe injury residuals. While acknowledging the Veteran's statements and testimony asserting that his disabilities, or symptoms thereof, began in service and continued to the present, the Board finds that the Veteran's alleged groin disability, if it exists, is one and the same as his already service-connected left hip disability. Accordingly, service connection for a separate disability is not warranted. A review of service treatment records shows that the Veteran suffered a pulled left groin in July 1982 while playing basketball. The Veteran elected not to undergo an exit examination. A February 1989 periodic examination was afforded during the Veteran's service in the National Guard. In the February 1989 examination, the examiner evaluated the Veteran as clinically normal. No notation of groin or hip pain was made at that time, providing evidence against this claim. A review of post-service medical treatment records shows isolated incidents of groin pain. In December 2003, the Veteran reported groin pain. In March 2004, the Veteran reported right groin pain. An examiner noted that there was no herniated area and no pain on palpation. In August 2006, the Veteran complained of right groin pain. The examiner noted that there was no hernia and diagnosed a right groin strain. In August 2007, the Veteran complained of deep left groin pain. In September 2004, the Veteran was afforded a VA joints examination. The Veteran reported that he developed pain in both hips in the late 1980s, several years after injuring his right foot in service. The Veteran reported current symptoms including shooting pain into the anterior part of both hips, which he referred to as "groin pain." Upon physical examination, the examiner noted that both hips had moderate generalized tenderness, mostly in the muscular area. The examiner noted that this included both anterior hip areas, which the Veteran referred to as "the groin area." The Veteran diagnosed chronic muscular strain plus trochanteric bursitis of the hips. As noted in an x-ray addendum, x-rays revealed early arthritis in both hips. With regard to the complaints of groin pain, the examiner noted that the Veteran indicated "the anterior hip area as the location of his groin pain" and that "this pain is probably regular anterior hip pain," providing evidence against the claim. The examiner opined that the Veteran's hip problems would probably have developed even without the right foot problem. The examiner also noted that favoring the right foot probably would make the symptoms of hip pain "more bothersome." In the September 2009 hearing, the Veteran testified that he had constant pain as a result of a muscle pull that never fully healed. The Veteran reported receiving therapy at the VA medical center, such as stretching to alleviate the tension and pain. The VLJ specifically asked the Veteran if he could distinguish the groin pain from other hip pain. The Veteran testified that the groin pain was a pulling sensation and the hip pain was in a slightly different location and is "just terrible, lot of pain." In July 2012, the Veteran was afforded a VA examination for hip and thigh conditions. The examiner noted that the Veteran had a diagnosis of degenerative joint disease in both hips. The examiner reviewed the claims file and recited the Veteran's reported history. The Veteran reported pain deep in the left hip, across the anterior hip into the groin and buttock. He reported that his left hip started to bother him in the military in 1982, but he did not mention the groin pull injury. After a physical examination, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale: This [Veteran's] current complaint of [left] hip pain, including groin pain, is consistent with degenerative arthritis. True hip arthritis causes pain in the groin. Hip DJD is a common and naturally occurring disease. . . . This type of arthritis is not often directly related to trauma or secondary to limping from other problems. It is a natural occurring condition and may have some genetic component. There is documentation in his [service treatment records] of [left] groin muscle strain. The literature does not support the assertion that muscle strains cause arthritis. The [service treatment records] in regards to [right] hip pain are buttock and not groin. This is not consistent with arthritic complaints. It is clear from the history and exam today that the progression of bilateral hip pain over the past 10 years is related to progression of his degenerative arthritis and not a muscle strain. His symptoms are bilateral, with symmetric loss of motion. A left groin strain would not cause similar right hip symptoms. I therefore conclude that it is less likely as not that he has a left hip condition related to military activities including the documented [left] hip groin strain in 1982. It is important for the Veteran to understand that such evidence only provides highly probative evidence against this claim, outweighing his current beliefs that he has some sort of "groin disability", separate from his already service-connected left hip disability, that is somehow connected to his active duty service or another service-connected disability. The Board finds the VA examiners' opinions to be persuasive. The examiners had appropriate expertise, reviewed the claims file, and thoroughly examined and interviewed the Veteran. Also, their explanations regarding how the claimed groin condition is actually the same as his left hip disability are consistent with the evidence of record, as discussed above. There is no competent and probative opinion that supports the Veteran's claim that he has a separate groin disability, and none has been identified by either the Veteran or his representative. This opinion simply outweighs the Veteran's belief. Accordingly, service connection for a groin disability must be denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in September 2004. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The September 2004 letter did not provide 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). The RO provided proper Dingess notice in the February 2007 statement of the case. The issue has been readjudicated in the February 2007 statement of the case, December 2008 supplemental statement of the case (SSOC), April 2012 Board decision, December 2012 SSOC and the July 2013 Board decision. The issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, identified private treatment records, National Guard records, and Social Security Administration (SSA) records have been obtained. The Veteran reported receiving treatment at the Portland VA medical center between February 1984 and January 2004, and at the White City VA medical center between February 1984 and November 2003, and between March 2004 and April 2004. The Appeals Management Center (AMC) attempted to retrieve these medical treatment records, but the treatment records received from the VA medical centers were incomplete. The AMC made a formal finding of unavailability in November 2012. The Veteran was notified and has not submitted any treatment records. Also, the Veteran was provided a VA joints examination and a VA hip and thigh conditions examination in regards to his claimed disability in September 2004 and July 2012, respectively. These examinations and their associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by a physician with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, in providing an adequate examination to the Veteran, and in obtaining SSA records and National Guard service treatment records, the AOJ substantially complied with the Board's April 2012 remand instructions. The Board acknowledges that not all treatment records were obtained from VA medical centers. However, as noted above, the AOJ made reasonable attempts to obtain such records, and subsequently made a formal finding of unavailability. The Veteran never responded to the AOJ's finding of unavailability. As such, an additional remand to comply with such directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). More records will not provide a basis to grant this case in light of the facts of this case and the medical issue to be determined. Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the September 2009 Board hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing was harmless. Moreover, in April 2014 the Veteran was scheduled to have a new Board hearing, but he did not appear. Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a groin disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs