Citation Nr: 1604733 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 12-05 513 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a right thigh disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to June 1996. That duty included an assignment to the Southwest Asia theater of operations during the Persian Gulf War. The issues on the title page were previously before the Board of Veterans' Appeals (Board) in January and December 2014. Each time, they were remanded for further development. Following the requested development, the RO confirmed and continued its denials of entitlement to service connection for the claimed right hip and right thigh disorders. Thereafter, the case was returned to the Board for further appellate action. In August 2013, during the course of the appeal, the Veteran had a hearing at the Board's Central Office before the Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. The presence of a chronic, identifiable right hip disorder has not been established. 2. The presence of a chronic, identifiable right thigh disorder has not been established. 3. The Veteran's complaints of right hip pain are manifestations of his service-connected degenerative joint disease of the lumbar spine. 4. The Veteran's complaints of right thigh pain are manifestations of his service-connected degenerative joint disease of the lumbar spine. CONCLUSIONS OF LAW 1. The claimed right hip disorder is not the result of disease or injury incurred in or aggravated by service, nor is it secondary to his service-connected right knee disorder, nor is it the result of an undiagnosed illness associated with his participation in the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.317 (2015) 2. The claimed right thigh disorder is not the result of disease or injury incurred in or aggravated by service, nor is it secondary to his service-connected right knee disorder, nor is it the result of an undiagnosed illness associated with his participation in the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.317 (2015) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA's Duties to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the Veteran in the development of his claims of entitlement to service connection for a right hip disorder and a right thigh disorder. After reviewing the record, the Board finds that the VA has met that duty. After the claims were received, the RO advised the claimant by letter of the elements of service connection and informed him of his and the VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. The duty to notify is satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006). The VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records, including private medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records; records reflecting his post-service treatment at military medical facilities from October 1997 through February 2014; and the transcript of his August 2013 hearing before the undersigned Veterans Law Judge. The duty to obtain relevant records is satisfied. 38 C.F.R. § 3.159(c). The hearing transcript shows that the Veterans Law Judge explained the issues fully and suggested the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). As a result of that hearing, the Veterans Law Judge remanded the case for additional evidence and for a review and opinion by VA medical personnel. The RO obtained the requested evidence from the McDonald Army Health Center and from the Naval Medical Center Portsmouth. Examinations and/or reviews of the evidence and opinions were performed by the VA in April and May 2014 and April and June 2015. The VA medical professionals conducted the types of examinations and reviews specified in the Board's remands, specifically addressed all of the questions posed by the Board, and provided rationale for all opinions rendered. Therefore, the post-remand actions constituted substantial compliance with the terms of the remand order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In addition to the recent VA examinations/reviews and opinions, the VA examined the Veteran on a number of occasions. 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The results of those examinations were consistent with the treatment records on file and were factually informed, medically competent, and responsive to the issues under consideration. Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support either of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Direct and Secondary Service Connection During his June 2013 hearing, the Veteran argued that he had disorders of the right hip and right thigh, primarily as a result of additional stress on those areas caused by his service-connected right knee disorder. Therefore, he maintained that service connection was warranted on a secondary basis. However, after carefully considering those claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against those claims. Accordingly, the appeal will be denied. The Applicable Law and Regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. 38 C.F.R. § 3.310(b). In addition to the foregoing, the applicable law and regulations permit service connection 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). The Evidence The July 1975 report of an ROTC Flight examination and the June 1976 report of the Veteran's examination prior to his entry on active duty are negative for any complaints or clinical findings of a right hip disorder or a right thigh disorder. In service in October 1994, the Veteran underwent a Persian Gulf War protocol examination to determine if he was experiencing any residual disability from his participation in that war. The Veteran responded "Yes", when asked if he then had or had ever had, swollen or painful joints or bone, joint, or other deformity. The examiner noted that the Veteran had history of degenerative joint disease of his knees. Otherwise, his lower extremities, spine, and other musculoskeletal areas were found to be normal. The examiner concluded the Veteran's condition was within normal limits. In April 1996, the Veteran claimed entitlement to service connection for multiple disorders, including a bilateral knee disorder, a right elbow disorder, a right ankle disorder, and a left shoulder disorder. During the Veteran's service retirement examination in June 1996, he responded "Yes", when asked if then had, or had ever had, painful joints and bone, joint, or other deformity. Specifically, he complained of pain in his knees, back, and right ankle. There were no complaints with respect to his right hip or right thigh; and, on examination, his lower extremities, spine, and other musculoskeletal areas were found to be normal. Since service, the Veteran has been treated at or through military medical facilities, primarily the McDonald Army Health Center and the Naval Medical Center, Portsmouth. During treatment in March 2009, he reported that as a result of his inability to straighten his right knee, he experienced fatigue in his right hip. On examination, the Veteran's right hip and right thigh were, generally, found to be normal. During a VA examination in March 2010, the Veteran reported being diagnosed with a bilateral hip condition. He stated that his stiff right knee was causing that condition to get worse. His primary manifestation was hip pain. He denied weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and/or dislocation. The Veteran also reported being diagnosed with bilateral thigh condition involving the thigh muscle. He reported flare-ups, precipitated by physical activity, as often as 3 times a month. During the flare ups he stated that he experienced limitation of motion and difficulty with standing/walking. On examination, the Veteran's leg length from the anterior superior iliac spine to the medial malleolus was 106 cm on the right and 105 cm on the left. His range of hip motion was reportedly within normal limits with flexion from 0 to 125 degrees, extension from 0 to 30 degrees, adduction from 0 to 25 degrees, abduction from 0 to 45 degrees, external rotation from 0 to 60 degrees, and internal rotation from 0 to 40 degrees. The examination of the lumbar spine revealed no sensory deficits from L1 to L5. The right lower extremity reflexes were normal at 2+, bilaterally, and there were no signs of pathologic reflexes. There were no signs of lumbar intervertebral disc syndrome and no non-organic physical signs. There was no evidence of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movements. X-rays of the Veteran's hips and femurs were normal, and no chronic right hip or right thigh pathology was identified. In May 2011, a hamstring contracture test was positive for each hip. During treatment in March 2012, the Veteran complained of low back pain radiating into his right thigh and groin. X-rays revealed minimal dextro-convex scoliosis of thoracolumbar junction, multilevel degenerative changes, facet arthropathy, and mild degenerative disc disease suspected at L3-L4, L4-L5, and L5-S1 levels. In August 2013, the Veteran's primary health care provider, P. B., M.D., reported that the Veteran walked with a noticeable right limp. Dr. B. stated that the Veteran's limitation of right knee motion affected, in part, his right hip. Following an April 2014 VA examination of the Veteran's spine, the diagnoses were degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine. The Veteran reiterated that he could not bend his right knee and that it contributed to his right hip and right thigh pain. The spine X-rays from July 1996 and March 2012 were reviewed. Strength testing, including the hips, was normal at 5/5. The Veteran's reflexes, including those in the lower extremities, were also normal at 2+, and the sensation in his lower extremities was also normal. There were no signs or symptoms of radicular pain. It was noted that the Veteran had intervertebral disc syndrome. There was no evidence of deformity, misalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing. Following an April 2014 examination of the Veteran's right hip, the diagnosis was right hip sprain. He reported that his right hip pain started in 2010, about the same time as his back. On examination, the Veteran had a normal range of bilateral hip motion. He demonstrated hip flexion to at least 125 degrees. Hip extension ended at greater than 5 degrees. There was no painful motion. Abduction was not lost beyond 10 degrees, and adduction was not so limited that it prevented the Veteran from crossing his legs. Hip rotation was not so limited that the Veteran could not toe-out beyond 15 degrees. The range of motion remained the same after repetitive testing, and his strength was normal at 5/5 for flexion, abduction, and extension. The examiner noted that the Veteran did not have any other pertinent physical findings, complications, conditions, or signs or symptoms related to the diagnosis of right hip sprain. X-rays revealed that both hips were normal. Following the VA examination, the examiner opined that it was less likely than not that his claimed right hip problem had occurred in or been caused by his service-connected right knee disorder. The VA examiner stated that he did not see any hip problem, either clinically or radiographically. In a May 2014 addendum, the VA examiner reiterated that it was also less likely than not that the Veteran's claimed right hip or right thigh problem had occurred in service or been caused by his service-connected right knee disorder. The VA examiner stated, again, that he did not see any right thigh problem, either clinically or radiographically. The VA examiner further opined that it was less likely than not that the Veteran's claimed right hip or right thigh disorders were associated with an undiagnosed illness resulting from the Veteran's participation in the Persian Gulf War. In addition, the VA examiner stated that it was less likely than not that the Veteran's right hip or right thigh disorders were associated with a chronic multi-symptom illness. In June 2015, a different VA examiner reviewed the Veteran's claims file and noted documentation of a leg length discrepancy and new dextroscoliosis which was not present on the 1996 X-ray done at the time of the Veteran's retirement from the service. The VA examiner reported that adult onset scoliosis could be degenerative in nature or idiopathic but that the majority was idiopathic according to multiple medical sources, including the Mayo Clinic. The VA examiner further noted that arthritic pain in the back could radiate into the buttocks, the thighs, and the hips and that such pain was referred to as axial symptoms. The VA examiner stated that radicular symptoms result from compression or pinching of a nerve, and could include shooting pains, sometimes described by patients as "lightning bolts," sciatica, or numbness in the legs. Citing Dr. Cunningham, Assistant Professor of Orthopedics at Weill Cornell Medical College, the VA examiner reported that such pains took different pathways down the leg and foot, depending on the specific nerves compressed in the area of the spine affected. It was noted that the hip and thigh pain were the direct result of misalignment of the core skeleton which in turn caused muscle strain. The VA examiner noted that low back pain could differ from person to person; that it could be mild, or it could be so severe that the patient was unable to move. Depending on the cause of the back pain, the examiner stated that the Veteran could have also had pain in his leg, hip, or on the bottom of his foot. The VA examiner stated that the Veteran had known degenerative joint disease of the low spine. The VA examiner found that all workup to date had failed to show pathology to account for the pain in the Veteran's right hip and thigh and that the area followed a dermatome that was enervated by the lumbar spine. The examiner concluded that while it was impossible to delineate between the two likely sources of his hip and thigh pain, it appeared more likely than not that his hip and thigh pain were actually referred from his spine and/or scoliosis and did not represent true hip or thigh pathology. The Veteran has a combined 30 percent rating for the following disorders: degenerative joint disease of the lumbar spine, evaluated as 10 percent disabling; limitation of flexion of the right knee, evaluated as 10 percent disabling; limitation of extension of the right knee, evaluated as 10 percent disabling; a hammertoe deformity, 5th toe, right foot, with a history of callous, evaluated as noncompensably disabling; atopic dermatitis, evaluated as noncompensably disabling; arthritis of the right elbow, evaluated as noncompensably disabling; arthritis of the left knee, evaluated as noncompensably disabling. Analysis The Veteran does not contend, and the evidence does not show that his claimed right hip disorder or right thigh disorder had their onset in service. Although the Veteran complained of joint pain in service, such complaints were not referable to his right hip or right thigh; and there were no findings of chronic identifiable right hip or right thigh pathology. In addition, the Board notes that in April 1996, prior to his retirement from the service, the Veteran filed a claim of entitlement to service connection for multiple disorders, including a bilateral knee disorder, a right elbow disorder, a right ankle disorder, and a left shoulder disorder. It is reasonable to expect that had he had a right hip or right thigh disorder at that time that he would have filed a service connection for those disorders. That he did not do so militates against a finding of direct service connection for a right hip or thigh disorder. Since service, the Veteran has complained of pain and weakness in his right hip and right thigh, and on occasion, he has demonstrated abnormal symptoms in those areas. For example, in March 2009, during treatment at Denbigh Physical Therapy and Sports Medicine, the Veteran reportedly had decreased strength in both hip flexors at 4/5 and atrophy of the right quadriceps. That same month, he demonstrated limitation of flexion of the right hip. In August 2013, P. B., M.D, the Veteran's primary care physician, stated that the Veteran's limitation of right knee motion affected his right hip and right low back. However, he did not say what the effects were, and he did not render a diagnosis of a right hip or right thigh disorder. In addition, X-rays of the right hip and right thigh were normal, and there were no findings of edema, instability abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, crepitus, muscle spasm, guarding of movements or other factors which would assist in the identification of underlying pathology. Therefore, the Board finds that the preponderance of the evidence, including his extensive treatment records and the reports of multiple VA examinations, is against a finding of chronic, identifiable disability of the right hip or right thigh. Absent evidence of chronic, identifiable right hip or right thigh pathology during the Veteran's 20 year military career or during the 20 years since his retirement, the Veteran does not meet the criteria for direct or secondary service connection. Accordingly, service connection is not warranted on either basis. While service connection for right hip or right thigh pain is not warranted on a direct or secondary basis, that does not end the inquiry. During his hearing, the Veteran contended that his right hip and right thigh pain were associated with his participation in the Persian Gulf War. He maintained that his symptoms were the result of undiagnosed illness and that service connection was warranted on that basis. Again, however, the preponderance of the evidence is against those claims. Undiagnosed Illness The Law and Regulations The VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: 1. Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and 2. By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): 1. An undiagnosed illness; 2. A medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (a) Chronic fatigue syndrome; (b) Fibromyalgia; (c) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Id. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. Id. Analysis The Veteran's service separation document (DD Form 214) shows that he had service in the Southwest Asia theater of operations from September 1990 to March 1991. The question is whether he exhibits objective indications of a qualifying chronic disability. After reviewing the record, the Board finds he does not. The Veteran complains of joint pain involving his right hip and muscle pain and fatigue involving his right thigh. As noted above, Dr. B., his primary care physician, stated that the Veteran's limitation of right knee motion affected his right hip. However, the Veteran does not exhibit objective indications of chronic disability either in the medical sense or non-medical indicators that are capable of independent verification. There are no findings of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, crepitus, muscle spasm, guarding of movements or other factors which would assist in the identification of underlying pathology. During treatment in March 2009 the Veteran's range of right hip flexion was limited to 110 degrees. Even if that degree of hip flexion was accepted as a result of the Veteran's right hip pain, that range of motion would not warrant service connection, as it is not compensable under the applicable diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2015). Furthermore, during VA examinations in March 2010 and April 2014 the Veteran's range of right hip flexion was within the normal limits of 0 degrees to 125 degrees. 38 C.F.R. § 4.71, Plate II (2015). In light of the foregoing discussion, the Board finds that the Veteran does not exhibit objective indications of chronic disability. In addition, the most recent VA examiners have associated the Veteran's right hip and right thigh pain and fatigue with a known clinical diagnosis During the Veteran's 20 year service career and in the 20 years since, his pain which has been associated with chronic, identifiable pathology. The disability associated with his service-connected lumbar spine has been identified as degenerative joint disease and is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The pain associated with his service-connected right elbow and both knees has been identified as arthritis and is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5206. 5260, and 5261. In addition, there is no evidence of a medically unexplained chronic multi-symptom illness, such as fibromyalgia, that is defined by a cluster of signs or symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5025. Because the Veteran does not have does not exhibit objective indications of chronic disability, and because the preponderance of the evidence shows that the Veteran's right hip and right thigh pain and fatigue have been associated with a known clinical diagnosis, the Board concludes that the Veteran does not meet the criteria for service connection for an undiagnosed illness associated with his participation in the Persian Gulf War. Accordingly service connection for a right hip disorder or right thigh disorder is not warranted on that basis, and that aspect of the appeal will also be denied. Additional Considerations In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2014; 38 C.F.R. § 3.102 (2015). ORDER Service connection for a right hip disorder is denied. Service connection for a right thigh disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs