Citation Nr: 1751088 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-34 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected lumbosacral spine degenerative disc disease. 2. Entitlement to service connection for a stomach disability, to include as secondary to service-connected lumbosacral spine degenerative disc disease. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service from January 1984 to January 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2010. A transcript from that proceeding is associated with the claims file. In decisions dated in July 2011 and September 2014, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the RO substantially complied with the prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). The Board notes that after the July 2007 rating decision denied the Veteran's claim for a TDIU and his service connection claims for a right hip disability and stomach disability, the Veteran filed a timely notice of disagreement for all issues in February 2008. After additional evidence was received, the RO reconsidered and denied the Veteran's service connection claim for a right hip disability in an August 2008 rating decision. See 38 C.F.R. § 3.156(b). Consequently, each issue on appeal stems from the July 2007 rating decision. The issues of entitlement to a TDIU and entitlement to service connection for a stomach disability, to include as secondary to service-connected lumbosacral spine degenerative disc disease, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran does not have a current diagnosis for a right hip disability. CONCLUSION OF LAW The criteria for service connection for a right hip disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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 (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has asserted that he has a right hip disability that is secondary to his low back disability. See November 2012 Statement in Support of Claim. Initially, the Board will determine whether the Veteran has a current right hip disability. The Veteran testified that his right hip began to go out in 2004 or 2005, and he started seeing his chiropractor around that time. During the appeal period, a May 2007 record from the Brady Chiropractic Group noted in a section of the record marked as subjective that the Veteran's primary complaint was his low back/right hip. Joint subluxations/fixations were only noted to be detected in the cervical, thoracic, and lumbar spine. A June 6, 2007 record from this provider reported in the subjective section of the record that the Veteran's primary complaint was his neck and low back, but he also commented that his right hip was out. In a review of the Veteran's chief complaint, the record noted at he had pain at his right hip, especially when shifting weight to the right side. The objective/examination findings portion of the report noted that the range of motion was evaluated with segmental findings. Under the assessment/action section, the cervical, thoracic, lumbar, and sacroiliac joint categories were circled; but the pelvic/sacrum and extremities categories were not. On June 13, 2007, the Veteran similarly stated that his primary complaint was his right hip and low back. The review of his chief complaint section noted that his low back was sore on the right sacroiliac joint side. The objective/examination findings reported that range of motion was evaluated with segmental findings. In the assessment/action, the record stated that joint subluxations/fixations were detected in the cervical spine, thoracic spine, lumbar spine, and sacroiliac joint. Again, the categories of pelvis/sacrum or the extremities were not circled. In conjunction with an October 2015 VA examination related to the Veteran's claim, the examiner stated that the Veteran did not have a current diagnosis for a right hip disability. The examiner explained that the Veteran's post-service medical records showed no complaint of right hip pain or evidence of a disability of the right hip. In addition, there was no diagnosis of a right hip disability. The Board finds that this opinion has reduced probative value as the examiner appeared to be unaware of the records documenting the Veteran's complaints of right hip pain after service. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). The Veteran underwent an additional VA examination in June 2016. The VA examiner noted that in June 2007, the chiropractic records indicated that the Veteran had subjective complaints of right hip pain. However, the examiner highlighted the fact that the chiropractor's diagram showed that the location of the reported right hip pain was in "the right sacroiliac joint and iliac crest," and not in the hip. In addition, the chiropractor's assessment documented lumbar and sacroiliac joint pathology, but no pelvic or hip pathology. Moreover, these records were consistent with the findings from June 2016 VA examination. The examiner concluded that what the Veteran subjectively believed to be right hip pain was actually right sacroiliac joint dysfunction that was related to his service-connected lumbosacral spine disability, noting that the right sacroiliac joint was part of the lumbosacral spine. In contrast, the right hip was normal. Therefore, the examiner determined that the Veteran did not have a diagnosis for a right hip disability. The Board finds that this opinion is highly probative as the examiner demonstrated his familiarity with the salient evidence of record, and the opinion was based on the examiner's medical knowledge and examination of the Veteran. Significantly, there is no contrary medical evidence. Based on the foregoing, the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a right hip disability. The existence of a current disability is a required element of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence additionally does not show a right hip disability diagnosis at any point during the claim period or shortly before the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowky v. Shinseki, 26 Vet. App. 289 (2013). The Board has considered the Veteran's contention that he has a current right hip disability. The Veteran is certainly competent to report as to his observable symptoms and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Under certain circumstances, lay persons are also competent to provide opinions on medical matters such as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d at 1376-77. However, a hip disability is not the type of condition that is readily amenable to mere lay diagnosis as clinical testing and other specific findings are needed to properly assess and diagnose the disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board notes that the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render these findings. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, the Board does not find that the Veteran is competent to relate his observable symptoms to a right hip disability diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The specific, reasoned opinions of the medical providers are of greater probative weight than the Veteran's more general lay assertions in this regard. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a right hip disability, and the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a right hip disability, to include as secondary to service-connected lumbosacral spine degenerative disc disease, is denied. REMAND Regarding the Veteran's service connection claim for a stomach disability, the Board finds that a remand is required to obtain an adequate medical opinion that complies with the prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2014 remand instructed the AOJ to obtain a VA examination and medical opinion that addressed both direct and secondary service connection. Related examinations and opinions were provided in October 2015 and June 2016. In terms of direct service connection, the examiner gave a negative nexus opinion that was partly based on the Veteran's normal results from an August 27, 1984 upper gastrointestinal (UGI) series. However, the examiner did not address the assessment of irritable bowel syndrome (IBS) that was noted alongside these results. It is unclear what significance, if any, this assessment has in relation the Veteran's claim, and the Board cannot draw its own medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The examiner also indicated that after 1984, the Veteran's symptoms of indigestion and dyspepsia did not continue to be chronic problem throughout his military service. However, the Veteran was assessed to have probable gastritis in November 1988 after complaining of indigestion, heartburn, increased gas, burping, and epigastric burning. The Veteran also reported having frequent indigestion in the August 1994 Report of Medical History, and the physician's summary stated that he had a history of frequent indigestion dating from 1984 to the present that was secondary to spicy foods. As a result, the Board finds that another VA medical opinion on direct service connection is needed. In addition, the Veteran has contended that his claim for a TDIU is partly based on his claimed stomach disability. Consequently, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of the Veteran's claim for a TDIU must be deferred until the appropriate actions concerning the intertwined service connection claim for a stomach disability are completed and the matter is either resolved or prepared for appellate review. The Board also notes that since the September 2014 remand, a July 2016 vocational rehabilitation counseling note stated that the Veteran was a participant in a Compensated Work Therapy (CWT) transitional work support group. The record reported that the Veteran had been actively pursuing employment in the community, applied to several jobs, and had a few interviews. A September 2016 Field Examiner Assessment also stated that the Veteran worked/volunteered part time for 3 to 4 hours a day at his local VA. He additionally volunteered with local shelters to provide transportation for shelter inhabitants. The Board recognizes that CWT programs are in a protected environment or sheltered workshop, which may constitute marginal employment rather than substantially gainful employment. See 38 C.F.R. § 4.16(a); see also 38 C.F.R. § 21.6420(b) (distinguishing a "work adjustment program, incentive or therapeutic work program, vocational training in a rehabilitation facility, or employment in a rehabilitation facility or sheltered workshop" from "[f]ull- or part-time employment" for pension purposes). However, as the case is already being remanded for development, the Board finds that the AOJ should send the Veteran another VA Form 21-8940 to determine whether he has obtained any employment apart from the CWT program. In addition, any outstanding Vocational Rehabilitation or CWT records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all VA treatment records for the Veteran dated from July 2016 to the present. All attempts to obtain these records must be documented in the claims file. In addition, send the Veteran a VA Form 21-8940 and request that he complete and return it with updated employment information. 2. The AOJ should associate any existing VA Vocational Rehabilitation folder and Compensated Work Therapy (CWT) records with the claims file. 3. After the preceding development in paragraphs 1 and 2 is completed, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran's stomach disability. The claims files must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The examiner should identify all current stomach disabilitys. For each identified disability, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability began in service, was caused by service, or is otherwise related to active service. Regardless of the conclusion reached, the examiner should address the following: (1) the August 30, 1984 service treatment record that documented an assessment of IBS; (2) the Veteran's complaints of indigestion in November 1988, and the related November 1988 UGI series; and (3) the Veteran's report of frequent indigestion in the August 1994 Report of Medical History, as well as the statement in the physician's summary that he had a history of frequent indigestion dating from 1984 to the present that was secondary to spicy foods. A complete rationale must be provided for any opinion offered. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be adjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs