Citation Nr: 1712349 Decision Date: 04/17/17 Archive Date: 04/26/17 DOCKET NO. 11-17 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a coccyx disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and C.B. ATTORNEY FOR THE BOARD Laura E. Collins, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1992 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. The Veteran testified at a Board hearing in April 2014; a transcript is of record. In October 2014 and April 2016, the Board remanded the claim for additional development. FINDING OF FACT The evidence is against a finding that the Veteran has a current coccyx disability. CONCLUSION OF LAW The criteria for service connection for a coccyx disability are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 C.F.R. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied by way of a letter sent to the Veteran in January 2009. The duty to assist includes aiding the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. The Veteran's service treatment records (STRs), identified relevant post-service treatment records, and lay statements have been obtained. At the April 2014 hearing, the Veteran testified that he was not currently being seen for tailbone issues. In the April 2016 remand, the Board noted that the "private medical records in the claims file [did] not show treatment for or a diagnosis of a coccyx disability. If the Veteran has medical evidence pertaining to a coccyx disability, he should either provide VA with permission to obtain the evidence or submit it himself." Pursuant to the remand, in a July 2016 letter VA asked the Veteran to "[c]omplete and return an enclosed [release form] for any private physicians who treated your claimed disabilities on appeal (coccyx) so that we can obtain your treatment information. Please complete both of the attached forms in order for us to assist with obtaining your records. You may want to obtain and send us the information yourself, if possible." In response, the Veteran submitted duplicates of selected STRs but did not provide any releases or identify any providers or outstanding evidence relating to current diagnosis or treatment of a coccyx disability. VA provided the Veteran with examinations in July 2009 and December 2014 that focused on the lumbar spine. In the October 2014 Board remand, the Board requested that the examiner clarify the Veteran's current diagnosis or diagnoses, if any, pertaining to the coccyx. This claim was remanded in April 2016 because the Board found that this was not accomplished in the December 2014 examination. Pursuant to the April 2016 remand, a VA examination was conducted in July 2016 and the examiner responded appropriately to the remand directive by clarifying whether the Veteran has a current coccyx diagnosis. As directed in the April 2016 remand, the examiner accepted as true the Veteran's reported history of pain in the area of the coccyx. The Board finds that the July 2016 medical opinion evidence is adequate in order to evaluate the Veteran's coccyx as it contains clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board further finds that there has been substantial compliance with the remand instructions and VA's duty to assist has been met. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a July 2011 Statement in Support of Claim, the Veteran requested that he be provided a new examination with a "specialist in the Orthopedic Field." "VA benefits from a presumption that it has properly chosen a person qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Absent clear evidence sufficient to rebut the presumption, the examiners are competent to provide the requested opinion(s). See Sickels, 643 F.3d at 1366. The Board finds that the Veteran did not provide clear evidence sufficient to rebut the presumption as he stated only: "I strongly feel part of the reason for this denial was the Compensation and Pension Examinations I received from Dr. [C]." Thus, the presumption applies and the examiners are competent, and VA was not required to provide an examination performed by an orthopedic specialist. In April 2014, the Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned Veterans Law Judge. The record reflects that at this hearing, the undersigned identified the issues to be discussed, focused on the elements necessary to substantiate the Veteran's claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. II. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish a claim for service connection, the evidence must show three elements: (1) a current 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 during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Competent lay evidence may be used to substantiate the elements of a service connection claim. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran has asserted that he has a coccyx disability and has competently and credibly reported the symptom of tailbone (coccygeal) pain. See May 1994 STR, December 2008 claim, VA examination reports (July 2009, December 2014, July 2016), hearing testimony. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute disability for which service connection may be granted. Sanchez Benitez v. West, 13 Vet. App. 282, 285 (1999). The Board finds that the diagnosis of a coccyx disability is not within the ability of a lay person to diagnose because a competent medical expert could not diagnose the Veteran based on reported symptoms alone and required specialized testing beyond ordinary clinical evaluation (e.g., x-ray). See Mattke v. Deschamps, 374 F.3d 667, 670 (8th Cir. 2004) (a diagnosis by laboratory testing is distinctly not within the realm of common lay knowledge); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). This Veteran has not demonstrated any experience with x-rays that would allow him to diagnose this disability by administering or interpreting such studies. Thus, the Board finds that the Veteran's contention that he has a coccyx disability is not a valid lay diagnosis. The competent medical evidence does not show that the Veteran has been diagnosed with a coccyx disability at any time during or since service. Neither STRs nor post-service treatment records show a diagnosis of coccyx disability. The July 2009 VA thoracolumbar spine examiner noted the Veteran's report of tailbone pain in service, but did not conduct diagnostics for the coccyx. The October 2014 examiner noted localized tenderness or pain on palpation of the coccyx area but did not to diagnose sacroiliac injury or weakness when given the opportunity to do so. The April 2016 VA examiner considered the Veteran's reports of tailbone pain from service to the present, conducted a physical examination, ordered an x-ray of the coccyx, and provided a comparison of relevant x-rays. The May 1994 x-ray showed no evidence of a fracture or bone destruction and normal soft tissues, sacrum, and coccyx. Similarly, the July 2016 x-ray findings were: "No definitive sacrococcygeal fracture or dislocation. Sacral lines are un[bent]. Unremarkable appearance of bilateral SI joint." The resulting impression was "[n]o acute osseous injury of sacrococcyx." The examiner's opinion is supported with a rationale that considers the Veteran's lay evidence: "Although the veteran has a subjective complaint of pain in the coccyx region, there is no diagnosis of a chronic coccyx disability due to the objective evidence of x-ray results that indicate no fracture of the coccyx or abnormality of the coccyx on either x-ray. The [V]eteran's self described intermittent coccyx pain . . . is most likely explained by obesity with a current BMI of 44." She provided citations to medical treatises supporting this opinion. The Board finds this opinion probative, as it provides a clear conclusion with supporting data and a reasoned medical explanation connecting the two. The competent and probative evidence of record does not show a current coccyx disability. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a coccyx disability is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs