Citation Nr: 1606369 Decision Date: 02/19/16 Archive Date: 03/01/16 DOCKET NO. 10-28 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a left hip disability. 3. Entitlement to service connection for peripheral neuropathy, right foot, to include as secondary to in-service exposure to herbicides. 4. Entitlement to service connection for peripheral neuropathy, left foot, to include as secondary to in-service exposure to herbicides. 5. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 31, 2013 and 70 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2012, the Veteran testified at hearing held at the RO before the undersigned Veterans Law Judge. A transcript of this hearing has been placed in the claims file. In March 2012, the RO issued a rating decision which granted an increased evaluation of 50 percent for posttraumatic stress disorder (PTSD), effective from September 2008, the date of the claim for increased rating. In May 2013, the RO issued a rating decision which granted an increased evaluation of 70 for PTSD, effective from January 2013. The Veteran continues to seek a higher evaluation for this condition. See AB v. Brown, 6 Vet. App. 35 (1993). In November 2012, the Board found that the claims for entitlement to service connection for peripheral neuropathy of the right foot and left foot, to include as secondary to in-service exposure to herbicides should be reconsidered on the merits, rather than treated as claims to reopen because additional service treatment records had been added to the record. 38 C.F.R. § 3.156(c). The Board remanded the claims for further development. There has been substantial compliance with the mandates of the remand regarding the issue of service connection for right and left hip disabilities. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for peripheral neuropathy of the right and left feet and entitlement to an increased rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's right hip condition is related to service. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's left hip condition is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303 (2015). 2. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice was provided in October 2008 and May 2013. The claim was subsequently readjudicated in a May 2013 supplemental statement of the case. The duty to assist has also been met. The claims file includes records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records, and Social Security Administration (SSA) records. Additionally, in November 2010 the Veteran underwent a VA examination. The Board finds that, taken together, the examination and opinions are adequate. The examiner considered the Veteran's history and the examination results, and provided rationales for the opinions offered. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). II. Service Connection Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). III. Analysis The Veteran had is right hip replaced in 2008 and his left hip replaced in 2011. He claims that his problems with his hips began in Vietnam when he carried heavy equipment on combat missions and jumped out of helicopters. At the Board hearing, the Veteran indicated that his hips did not start "bothering" him until 2006. There are extensive private treatment records dated since 2006 that include examination reports of each hip replacement. Records continue to show treatment for hip problems. The service treatment records (STR) are negative for any complaints, treatment or diagnosis of any hip condition during service. However, there is no separation examination report. Therefore, the Board exercised a heightened obligation to carefully apply the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran receives benefits from the SSA. He filed a claim for disability benefits in 2010 for an inability to move without aid, scoliosis, and neuropathy of the feet. The SSA granted benefits and found that the Veteran met SSA disability standards based on degenerative disc disease of the spine, symptoms of radiculopathy, degenerative disc disease of the left hip, and loss of joint space in the right hip. However, none of the reports or treatment records in the SSA file provides any additional information on the etiology of the Veteran's bilateral hip condition or any indication that his current problems began in service or are related to any incident in service. The Veteran underwent a VA examination in November 2010. The following history was provided: "The Veteran says that he was in the infantry from July 1969 to December 1969. He drove a tractor-trailer [from] December 1969 to July 1970 while stationed in Vietnam. While serving in the infantry he was responsible for carrying gear between 100 and 150 pounds. He recalls that, in 1969 when he was jumping from a helicopter, his knee gave way and he actually fell with his gear, landing on his left shoulder. He does not specifically recall injuring his left hip. He was not able to sleep on his left side." "When released from the service, the Veteran worked in electronics. He repaired keypunch and small computers. Then, from 1984 to 2000, he drove a trailer for the postal service. Aside from his duties driving, he was required to load and offload. This required pushing, pulling, and use of a hydraulic pallet jack." "The Veteran says that his weight in the infantry was around 200 pounds. Over time, he has gained weight. He says he retired in October 2009 when he was forced to retire due to medical reasons and, that he was no longer allowed to work once he required the use of a cane." "The Veteran developed right hip pain in May 2007. It [worsened]...until he had a total right hip replacement at the Arrowhead Hospital...[in] June 2008. Since his hip replacement, his pain and symptoms have become better. He has no pain presently. He denies any weakness, swelling, deformity, [or] redness." "Regarding the Veteran's left hip, he first began to develop pain in January 2008... A lumbar MRI was performed, which showed an L4-L5 degenerative disk disease...more severe on the left than the right. The report also notes an L5-S1 subluxation, with bilateral foraminal stenosis, more severe on the left than the right." Subsequent to this VA examination, the Veteran underwent a left hip replacement in 2011. After physical examination and a review of the record, the examiner opined that it "is less likely than not the Veteran's current right hip and left hip conditions are due to his carrying heavy equipment and his traumatic jump from the helicopter." The examiner provided the following rationale: "Osteoarthritis is a common disorder seen as part of the aging process. There are multiple factors related to developing osteoarthritis including repetitive weight bearing activities, increased weight, genetic factors, and prior injury, among others. The Veteran says that his duties included carrying very heavy equipment for approximately 6 months approximately 40 years ago. There is also a history of a traumatic jump from a helicopter in 1969. From the Veteran's account, after jumping from the helicopter, his knee gave way and he landed on his shoulder. There does not seem to have been [a] direct bilateral hip injury from that fall. The Veteran did work in a profession that required lifting and loading a truck for some 15 years, which could contribute to osteoarthritis of the weight bearing joints." This opinion weighs against service connection. There are extensive treatment records, including operation reports, concerning the Veteran's hips which date from 2007. There are no treatment records concerning the hips from service until 2007. The Veteran explained at the examination and the Board hearing that he did not experience hip pain until approximately 2006. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, in the present case, there is an absence of clinical records of hip problems for nearly three decades. The Veteran's representative has argued that the Veteran was involved in combat in Vietnam and should be afforded the combat presumption. The Board finds that the Veteran is a combat veteran and is, therefore, entitled to the combat presumption. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Pertinent case law provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). Even affording the Veteran the combat presumption, he has alleged one fall from a helicopter wherein he injured his knee and shoulder and the stress of carrying gear. He has not argued that his current hip complaints are otherwise related to any combat experiences. The examiner specifically considered the Veteran's fall and his experiences in service before deciding that his hip problems are not related to his period of service. There is no other medical evidence in the record to consider. The Board also considered the Veteran's lay statements. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of hip conditions falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1377. Therefore, the Veteran is not considered competent (meaning medically qualified) to address the etiology of his bilateral hip condition. In deciding this appeal, the competent medical records carry greater probative weight. The treatment records establish that that the Veteran's onset of hip problems was several decades after service and related to other factors such as age, weight, and post-service activities; therefore, there is no link between the condition and service. Therefore, entitlement to service connection is not warranted. In sum, the evidence of record does not support a finding that service connection is warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. REMAND The Veteran claims that the peripheral neuropathy of his feet was caused by herbicide exposure in Vietnam. Effective September 6, 2013, VA amended its regulations regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and clarified and expanded the terminology. The amendment removed the requirement that an acute or subacute peripheral neuropathy appear within weeks or months after exposure and removed the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply. VA replaced the terms "acute and subacute" and "transient" peripheral neuropathy with "early-onset" peripheral neuropathy. Early-onset peripheral neuropathy must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer must be transient. There is still no herbicide-related presumption of service connection for "delayed-onset chronic" peripheral neuropathy. Rather, early onset peripheral neuropathy must manifest within one year of herbicide exposure, for presumptive purposes. 38 C.F.R. §§ 3.307(a)(6) , 3.309(e). 78 Fed. Reg. 54763 -01 (Sept. 6, 2013). The Veteran has consistently stated that he has experienced symptoms since 1969; raising the possibility of early onset. In November 2010 the Veteran underwent a VA examination and the examiner opined that the "long standing peripheral neuropathy (greater than 2 years) is not recognized as a complication of Agent Orange." A private physician, Dr. J.S.G., reported, "I don't know for sure the etiology of [the Veteran's] peripheral neuropathy. It is certainly possible it could be due to Agent Orange." Neither of these opinions provides a basis to decide the Veteran's claim. An addendum opinion was provided by VA in 2013; however, that opinion did not address service connection on a direct basis. Given the Veteran's consistent statements that he has experienced symptoms since 1969 and the changed to the regulations during the course of the appeal, a VA examination and opinion regarding onset of the disability is appropriate. 38 C.F.R. § 3.159(c)(4). Since the Board remanded the issue of increased rating for PTSD, the AOJ increased the rating in a May 2013 rating decision. However, a subsequent VA examination was provided in December 2015. The examination report represents pertinent evidence. This evidence has not been considered by the AOJ. On remand, the AOJ must consider the claim in light of the evidence received subsequent to the May 2013 Supplemental Statement of the Case (SSOC). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for peripheral neuropathy or psychiatric complaints since May 2013. After securing the necessary release, take all appropriate action to obtain these records. 2. After completion of the foregoing, schedule the Veteran for a VA examination to determine the nature and onset of his peripheral neuropathy of the feet. The claims folder and copies of any pertinent electronic medical records should be made available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner should address the following: (a) Whether it is at least as likely as not (probability of at least 50 percent) that the Veteran has "early-onset" peripheral neuropathy, which manifested within one year after the date of last exposure to herbicides, including Agent Orange, during military service in Vietnam. (b) If the Veteran does not have "early-onset" peripheral neuropathy, whether it is at least as likely as not (probability of at least 50 percent) that his current peripheral neuropathy is related to herbicide exposure, including Agent Orange, during military service in Vietnam, or is otherwise attributable to said service. (For the purposes of providing any opinion, the Veteran's exposure to herbicides, including Agent Orange, during service is presumed.) In rendering any opinion, the examiner is instructed to specifically comment on any statements from the Veteran regarding the onset and continuation of symptoms. The medical reasons for accepting or rejecting the Veteran's report should be set forth in detail. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Reqadjudicate the claim of entitlement to an increased initial rating for PTSD for the entire period on appeal with consideration of the new evidence. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues. If any benefit sought on appeal remains denied, the AOJ must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs