Citation Nr: 1611325 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 00-16 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for left ear hearing loss disability. 3. Entitlement to an initial compensable evaluation for herpes simplex. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to December 1985. This matter came before the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the VARO in New Orleans, Louisiana. The claims file has since been transferred to the RO in Waco, Texas. In a March 2006 decision, the Board denied the Veteran's petition to reopen claims of entitlement to service connection for a low back disability and service connection bilateral hearing loss; denied service connection for PTSD, hypertension, tinnitus, and disabilities of the neck, skin, bilateral feet, and bilateral hips; and remanded the issue of a higher initial disability rating for hepatitis C. The Veteran appealed the March 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2008 memorandum decision, the Court vacated and remanded the portions of the March 2006 Board decision that denied service connection for hypertension, tinnitus, and disabilities of the neck, skin, bilateral feet, and bilateral hips, and denied reopening service connection for a low back disability and bilateral hearing loss. The Court affirmed the remainder of the Board decision, specifically, the denial of service connection for PTSD, and the Board's remand of the claim for a higher initial disability rating for hepatitis C. In February 2009, the Board reopened the claim of entitlement to service connection for bilateral hearing loss disability, and remanded the case for further development. In a subsequent December 2011 rating decision, the RO granted service connection for hypertension and tinnitus; the Veteran did not appeal the initial assigned ratings. In January 2013, the Board reopened the claim of entitlement to service connection for a low back disability and denied that claim on its merits. It granted service connection for herpes simplex; and denied service connection for a neck disability, a bilateral foot disability, a skin disorder other than herpes simplex, and right ear hearing loss disability. The Veteran has not since appealed these issues to the Court. The issues of entitlement to service connection for left ear hearing loss and for a bilateral hip disability were remanded for additional development. This matter also comes before the Board from a March 2013 rating decision by the Waco RO which carried out the Board's grant of service connection for herpes simplex and awarded a noncompensable evaluation. Notice of that decision is dated in August 2013. The Veteran submitted a notice of disagreement with respect to the evaluation assigned in July 2014, and subsequently perfected his appeal with respect to this issue. The issues of entitlement to service connection for left ear hearing loss disability and a higher initial evaluation for herpes simplex are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A bilateral hip disability, to include degenerative joint disease, was not manifest in service or within one year from separation from service, and is unrelated to service. CONCLUSION OF LAW A bilateral hip disability was not incurred in service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Letters dated in December 2002 and February 2003 discussed the evidence necessary to support a claim for service connection. The Veteran was advised of the allocation of duties between himself and VA. In October 2009, the Veteran was again advised of the evidence necessary to support a claim for service connection. The allocation of duties was discussed. In January 2014, the Veteran was advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Moreover, although the January 2014 notice letter was sent subsequent to the initial adjudication of the Veteran's claim, the Board finds that there was no prejudice as the issue decided herein was most recently readjudicated in a March 2015 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental SOC, is sufficient to cure a timing defect). With respect to VA's duty to assist, service and VA treatment records have been associated with the claims file. VA examinations have been conducted and addendum reports obtained, and the Board finds that they are adequate in the aggregate in that the examinations were carried out by skilled providers and that the most recent addendum report was provided following a comprehensive review of the claims folder, and was supported by adequate rationale. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection for Bilateral Hip Disability Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records indicate that in May 1985, the Veteran was seen following a motor vehicle accident. He complained of pain in his right hip and the right side of his head. He was oriented and ambulatory. The pelvic girdle and extremities were within normal limits. The assessment was motor vehicle accident, superficial scalp laceration. A VA treatment record dated in December 1999 notes full range of motion of the hips. The assessment did not indicate any abnormality of the hips. An April 2000 VA physical therapy consultation record notes the Veteran's report of a car accident in Germany during service. The Veteran stated that he was hit in the head. He did not mention injury to his hips. VA domiciliary records dated in June 2001 indicate the Veteran's report of pain in his hips. He was advised that he was under treatment for polysubstance abuse and not for chronic medical problems. The Veteran was hospitalized in August 2001 for substance abuse treatment. The discharge summary notes that he complained of chronic pain in his lumbar and cervical spine during this inpatient stay. The Veteran was discharged from substance abuse treatment and simultaneously accepted with admission to a vocational rehabilitation program in August 2001, where he remained until November 2001. He received treatment for chronic neck and back pain. In September 2003, the Veteran was seen with complaints of chronic pain in the groin. His gait was normal and range of motion of the hips was also normal. In October 2005, the Veteran was seen with complaints of hip pain. He expressed his belief that he needed hip replacement. A July 2008 VA record notes that right hip replacement was performed in October 2007. The Veteran was provided a consultation to resume range of motion and strengthening exercises. The provider noted that the Veteran had a history of left total hip replacement. In August 2009, the Veteran reported chronic low back pain radiation bilaterally to the hips. On VA examination in August 2011, the Veteran's history was reviewed. He stated that he started having bilateral hip pain many years previously. He indicated that his symptoms started in approximately 1988, about three years following discharge from service. He related that he noticed weakness and pain in the left hip, and experienced several episodes of falling. The examiner noted that the Veteran underwent total hip replacement of the hips in 2007. Following physical examination, the diagnosis was bilateral hip degenerative joint disease with history of avascular necrosis of the right hip status post bilateral hip replacement. In October 2011, the VA examiner noted that he had thoroughly reviewed the claims file. He concluded that the claimed bilateral hip condition was not related to service. He reasoned that there was no medical data indicating complaints or treatment for a bilateral hip condition during service, noting that the March 1985 VA examination was negative for any complaints referable to the hips, and that there was no interim data proximate to discharge. He pointed out that the 2007 hip surgery was 22 years after discharge. A VA examiner reviewed the record in September 2013, noting that he had been asked to review the file and address the question of service connection for a bilateral hip disability in light of a medical note indicating complaints of pain in the left hip following a motor vehicle accident in May 1985. He noted that review of the claims file revealed no indication of any complaint, injury, treatment, or diagnosis of a right hip condition during service. He stated that there was no interim data proximate to discharge related to the right hip. He indicated that it remained his opinion that the right hip condition was not related to service or an event/incident during service. With regard to the left hip, he indicated that there was one complaint related to left hip lateral pain following a motor vehicle accident 40 minutes prior to the Veteran's presentation at an emergency room. He noted that musculoskeletal examination was negative for any abnormality, and that there was no diagnosis. He pointed out that there was no evidence of any further complaints or treatment for the left hip. He stated that he could not establish chronicity related to the acute left hip condition on active duty, and that there was no evidence of any interim data proximate to discharge or evidence of chronicity related to the left hip that was proximate to discharge. He concluded that it was less likely than not that the left hip condition was related to service or an event during service, such as the motor vehicle accident. Upon careful review of the record, the Board has concluded that service connection is not warranted for the claimed bilateral hip disability. While there is are diagnoses related to the Veteran's hips, the most competent and probative evidence of record does not etiologically link any such disability to service or any incident therein. Rather, the record demonstrates that a substantial period has elapsed between service and this diagnosis. As noted, the relevant examination at the time of the Veteran's in-service motor vehicle accident did not reveal any abnormal finding referable to his hips. Rather, the provider noted that the Veteran was ambulatory, and that the pelvic girdle and extremities were normal. There is no competent evidence of a link between the Veteran's bilateral hip disability and service. Nor is there any evidence tending to associate this diagnosis with service. In this regard, the VA examiner who reviewed the record in September 2013 concluded that the current disability is unrelated to service. In reaching this conclusion, he considered the Veteran's documented history and his contentions regarding continuity of symptoms. In sum, the record demonstrates a remote, post-service onset of this diagnosis, and is devoid of any reliable evidence supporting a finding that it is related to service. To the extent that the Veteran asserts that he has a bilateral hip disability that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnosis because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. The preponderance of the evidence is against finding that any diagnosis is related to any injury or disease in service. Accordingly, the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for a bilateral hip disability is denied. REMAND Service Connection for Left Ear Hearing Loss Disability On periodic examination in March 1985, the following puretone thresholds were noted: HERTZ 500 1000 2000 3000 4000 Left 25 10 10 15 10 On VA examination in August 2011, the Veteran stated that he had difficulty understanding speech. The examiner noted the Veteran's report of having trained as a combat medic, as well as his report of exposure to gunfire and tanks during service. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Left 10 10 20 35 65 The speech recognition score on the left was 100 percent. The examiner diagnosed sloping to moderately severe sensorineural hearing loss from 3000 to 4000 Hertz. In November 2011, the VA examiner reviewed the claims file and opined that the Veteran's hearing loss was less likely as not the result of noise exposure during service, as thresholds were within normal limits for rating purposes during service. In its January 2013 remand, the Board pointed out that while the March 1985 periodic examination did not reflect a left ear hearing loss disability for VA purposes, at least some degree of hearing loss was indicated in service. See Hensley v. Brown, 5 Vet App 155, 157 1993 (the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A Schroeder et al. eds., 1988)). The Board noted that while the August 2011 VA examiner noted findings from relevant service audiograms in a November 2011 addendum opinion, the examiner reasoned that current hearing loss was less likely as not a result of noise exposure during military service because hearing thresholds in service were within normal limits for rating purposes; however, in Hensley, the Court held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. The Board concluded that a supplemental opinion addressing the increase in hearing threshold levels for the left ear shown in service was necessary. In February 2014, a VA audiologist reviewed the record. She concluded that left ear hearing loss was not related to service. She noted that on audiogram in 1985, hearing thresholds were within normal limits bilaterally for all rating frequencies, 500 - 4kHz. She further noted that while a threshold shift apparently did occur at 6000 Hertz in the left ear, this frequency is not a rating frequency. She did not address the hearing threshold shift that occurred at 500 Hertz, as noted by the Board's 2013 remand, nor did she address that shift in her opinion, as required by the remand. Thus, the Board concludes that the opinion is not adequate for the purpose of deciding this claim, and that the audiologist must be asked to clarify her opinion, with consideration of the above discussion. Evaluation of Herpes Simplex Service treatment records indicate that herpes simplex of the penis was assessed in August 1981. On VA examination in August 2009, the Veteran reported that he experienced fever blisters on his lips, arms, and penis. Physical examination at that time revealed no area of blisters. In a July 2015 statement, the Veteran's attorney requested a new VA examination to determine the current severity of the Veteran's herpes simplex. In light of the fact that the Veteran was most recently examined for this disability more than six years ago, and he has stated that he does experience recurrent episodes, the Board concludes that a current examination is warranted. In light of the above discussion, the Board concludes that additional action is necessary. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the audiologist who provided the February 2014 addendum report. The audiologist is asked to review the claims file (including the discussion in this remand). If that audiologist is unavailable, the claims file should be forwarded to a similarly qualified practitioner for the quested review and opinion. If it is determined that an additional examination of the Veteran is required in order to address the questions posed, such should be scheduled. Following review of the claims file (and examination of the Veteran only if deemed necessary), the audiologist should address the question of whether it is at least as likely as not (a 50 percent or greater probability) that currently diagnosed left ear hearing loss began during service or is otherwise linked to noise exposure during training exercises in service. In the supplemental opinion, the audiologist should address the increase in hearing threshold levels for the left ear shown in the 1985 service audiogram, specifically the threshold shift at 500 Hertz. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The audiologist is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the audiologist is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Schedule the Veteran for a VA skin examination to determine the severity of his service-connected herpes simplex. To the extent reasonably possible, the examination should be scheduled during a time when the Veteran's herpes simplex is in an active state. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Following interview, examination of the Veteran and review of the claims file, the examiner should identify all manifestations of the Veteran's herpes simplex, to include the location and area encompassed by any current lesions associated with the disability. 3. Review the resulting reports to ensure that they comply with the Board's remand directives. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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). ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs