Citation Nr: 1634715 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 09-25 722 ) DATE )7 ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a hip disorder. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served in the Massachusetts Army National Guard from July 1963 to December 1964 and had a period of active duty for training (ACDUTRA) from August 3, 1963, to February 2, 1964. He was thereafter transferred to the United States Army Reserve and had another period of ACDUTRA from July 31, 1965, to August 14, 1965. The Veteran was medically disqualified for retention and was discharged in November 1965. He has been granted service connection for a disability based on his periods of ACDUTRA, thereby establishing veteran status. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A hearing was held before the undersigned Veterans Law Judge in May 2013. A transcript of the hearing is of record. The Board remanded the case for further development in July 2013. The case has since been returned to the Board for appellate review. The Board also notes that the Veteran's appeal originally included the issue of entitlement to service connection for a lower left back disorder. However, in a November 2013 rating decision, the AOJ granted service connection for that disability. The grant of service connection for a left lower back disorder constitutes a full award of the benefit sought on appeal with respect to the claim. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the appellant has submitted a notice of disagreement with the initial rating or effective date assigned. Thus, those matters are not in appellate status. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran does not have a current hip disorder that manifested in service or that is otherwise related to service. CONCLUSION OF LAW A hip disorder was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided the Veteran with a notification letter in February 2007, prior to the initial decision on the claim for service connection. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claims and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein. The Veteran was also afforded VA examinations in November 2007 and August 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2013 VA examination and medical opinion are adequate to decide the case because they are based on an accurate factual premise and a review of the claims file, including the Veteran's reported medical history and complaints. The opinion also addresses the central medical issues and is supported by rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran also testified at a hearing before the undersigned Veterans Law Judge in May 2013. The Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate the claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103 (c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. In addition, the Board notes that the case was remanded in July 2013 to verify the Veteran's military service, to obtain his service personnel records, to afford him an additional VA examination, and to secure any outstanding treatment records. As documented in the claims file, such actions were completed. Accordingly, there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis The Veteran has claimed that he has a current hip disorder that is due to an accident that occurred during his military service. Specifically, he has claimed that fell out of a truck sometime between October 1963 and December 1963 and landed on the left side of his back and hip. See Bd. Hrg. Tr. at 3-4. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131(West 2014). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that disorder at issue in this case is not listed as a chronic disease in the regulation. Although arthritis is listed, the evidence does not show the Veteran to have such a diagnosis. In fact, the August 2013 VA examiner indicated that degenerative or traumatic arthritis was not documented. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101 (21), (24), 106; 38 C.F.R. § 3.6 (a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101 (22); 38 C.F.R. § 3.6 (c) (3). Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. §12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. In this case, the appellant was granted service connection for a disability based on his periods of ACDUTRA. Therefore, he has established veteran status for those time periods. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the Veteran's hip disorder. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a hip disorder. As previously noted, the Veteran has asserted that he injured his hip and back after a fall in service. Although there are service treatment records documenting a back injury, there is no medical evidence pertaining to a hip disorder. See August 1965 service treatment record. In fact, a December 1963 clinical evaluation found the Veteran's lower extremities to be normal. Additionally, in December 1963, the Veteran received a physical profile of 1 for each of the six categories on the Veteran's "PULHES" profile. PULHES represents the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The PULHES profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). Notably, the Veteran stated that he was in excellent health. Moreover, the Veteran was provided a medical discharge during which he discussed his low back pain, but made no mention of any hip problems. In a July 1965 statement of physical condition, the Veteran indicated that he had arthritis and calcification in his lower back. He stated that he wore a back brace and that he took anti-arthritic treatment. He also noted that that his back had caused him a great deal of pain and had limited his mobility considerably in the previous year and a half. The Veteran stated that he was unable to sit or stand for more than a few minutes at a time and that he must be extremely careful in his movements, as spasms occurred in his lower back very easily. The Veteran went into great detail regarding his reason for obtaining a medical discharge; however, he did not mention any hip disorder. In addition, the Board notes that the Veteran did not seek treatment for a hip disorder immediately following his separation from service or for many decades thereafter. With regard to the decades-long evidentiary gap in this case between active service and treatment sought for a hip disorder, a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id. Therefore, the Board finds that a hip disorder did not manifest in service. The Board does acknowledge the Veteran's assertions that his hip disorder has existed since service. He is certainly competent to report his experience and symptoms both in service and following service. While laypersons are generally not competent to offer evidence that requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a Veteran seeks disability benefits. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. 465 (distinguishing between 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 also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has experienced hip problems since service. However, his assertions are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service, and upon examination, his lower extremities were documented as being normal. Additionally, as stated above, the Veteran received a 1 in his PULHES score for his lower extremities. See December 1963 service treatment record. As such, there is actually affirmative evidence showing that he did not have a hip disorder after his in-service accident. Moreover, as discussed above, the Veteran discussed his low back problems in detail while seeking a medical discharge, yet no made mention of any hip problems. The Board finds it significant that the Veteran reported back problems, but made no mention of a hip disorder, as he has alleged that both disorders resulted from the same incident. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803 (7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). For the foregoing reasons, the Board finds that the history regarding the onset of the Veteran's hip disorder in service to be not credible. Accordingly, the Board finds that a hip disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that a hip disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. The August 2013 VA examiner opined that the Veteran's current hip disorders, diagnosed as tendonitis and bursitis, were not present during his military service and were less likely than not to have resulted from an incident reported to have taken place during service. In so doing, the examiner noted that a hip disorder was not noted during the July 1963 and December 1963 examinations. The Board acknowledges the June 2013 private medical opinion in which Dr. G.K. (initials used to protect privacy) stated that the Veteran has had persistent discomfort since injuring in his left leg at the hip area during a fall in service in 1963. However, the physician did not address the findings that the Veteran had normal lower extremities during his December 1963 physical examination and that the remainder of his service treatment records were also negative for any complaints, treatment, or diagnosis of a hip disorder. Indeed, as discussed above, the Board has found that the Veteran's reported history regarding the onset of the disorder to be not credible or reliable. As such, it appears that Dr. G.K. based his opinion on an inaccurate factual premise. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran). Thus, the private medical opinion has very limited probative value. The Board does acknowledge the Veteran's own assertions that current hip disorder is related to his military service. However, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the opinion of the August 2013 VA examiner is of greater probative weight than the Veteran's general lay assertions. The examiner reviewed and considered the evidence of record, including the Veteran's statements, and provided a medical opinion with supporting rationale relying on medical training, knowledge, and expertise. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a hip disorder. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board concludes that service connection for a hip disorder is not warranted. ORDER Entitlement to service connection for a hip disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs