Citation Nr: 1751952 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-23 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left hip disability as secondary to a service-connected low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active military service from April 1979 to February 1993. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Waco, Texas Regional Office (RO). The RO's rating decision, in pertinent part, denied the Veteran's claim for service connection for a left hip disability as secondary to his service-connected low back disability. The Board previously remanded this appeal for further development in June 2015. FINDING OF FACT A chronic left hip disability was not shown in service or until many years thereafter; and, the Veteran's left hip arthritis is not shown to be etiologically related to his active service or service-connected low back disability. CONCLUSION OF LAW The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met its duties to notify and assist the Veteran in developing his claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2017). A June 2011 letter satisfied the VA's duty to notify. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor his representative has alleged prejudice with regard to notice, thus nothing more is required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[A]bsent extraordinary circumstances . . . it is appropriate for the Board . . . to address only those procedural arguments specifically raised by the veteran"). The Veteran has also been afforded adequate assistance to develop his claim. His service, VA medical center, and private treatment records have been obtained and associated with his claims folder. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim, and the Board is unaware of any outstanding evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA has provided the Veteran with VA medical examinations. The Board remanded this claim to obtain a new VA examination because a November 2011 VA examination was inadequate for failing to consider whether the Veteran's service-connected low back disability aggravated his left hip disability. See Remand Order, dated June 4, 2015. The Veteran received a second VA medical examination in September 2015, and the Board finds that VA examination to be adequate. The examiner performed a physical examination, thoroughly reviewed the claims file, and discussed the rationale and bases for his conclusions. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr, 21 Vet. App. at 312 (2007). Accordingly, all remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Laws and Regulations Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). Generally, to establish service connection, the evidence 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 current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted on a presumptive basis for certain chronic diseases if the disability manifested to a compensable degree within the applicable presumptive period following a veteran's separation from active service. 38 U.S.C.A. §§ 1110, 1112(a)(1), 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). For arthritis, the presumptive period is one year. 38 C.F.R. § 3.307(a)(3). Service connection for a recognized chronic disease can also be established through continuity of symptomology. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases shown as such in active service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been shown in active service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished for merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after separation from active service is required. Id. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998); Allen, 7 Vet. App. at. 448. III. ANALYSIS The Veteran's primary contention is that his left hip disability has been caused or aggravated by a service-connected low back disability. See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received April 29, 2011. However, in his notice of disagreement, the Veteran suggested by implication that a left thigh injury while on active service directly caused his left hip disability. See VA Form 21-4138, Statement in Support of Claim, received March 21, 2012. Service treatment records are absent any complaints, treatment, or diagnosis of a left hip disorder or injury. There is evidence the Veteran suffered a left thigh injury while on active service, see Service Treatment Records, dated November 17 & 26, 1986. However, as indicated, there is no evidence of record indicating a connection between that left thigh injury and the Veteran's left hip disability. Such was observed in the September 2015 VA examination report wherein it was determined there was no relationship between the Veteran's active service and his arthritis of the hip. Further, the evidence of record does not demonstrate continuity of symptomatology between the Veteran's 1993 retirement from active service and the onset of left hip pain in 2008. See 38 C.F.R. § 3.303(b); Shedden, 381 F.3d at 1166-67. Moreover, the Veteran's left hip arthritis manifested nearly 15 years after the Veteran's retirement from active service, far outside the one-year presumptive period. See 38 C.F.R. §§3.307(a)(3), 3.309(a). With regard to the Veteran's main contention that the left hip disability was caused or aggravated by the service-connected low back disability, the Board finds that the evidence of record does not support secondary service connection. The record establishes that the Veteran has a left hip disability, and he is service connected for a low back disability. Thus, the first and second elements for secondary service connection are met. See Wallin, 11 Vet. App. at 512. Entitlement to secondary service connection therefore turns on whether the Veteran's low back disability caused or aggravated his left hip disability. See id. The claims file includes private treatment records from Integrated Pain Associates stating "[l]ow back pain and left far greater than right with radiation into the left hip and buttock region." See Private Medical Records from Integrated Pain Associates, dated May 18, 2011. That statement suggests a nexus between the Veteran's low back disability and his left hip disability. In September 2015, a VA examiner determined that the Veteran's left hip disability "is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected [low back] condition." See September 2015 VA Examination. The VA examiner observed the Veteran's left hip pain began in 2008 and was diagnosed in 2011 as mild osteoarthritis. He described the degenerative condition as being causally attributed to the Veteran's age rather than his service-connected back condition. See id. Furthermore, the VA examiner concluded that the Veteran's left hip disability is "ind[e]pendent" and "not aggravated by his low back condition." See id. The VA examiner observed that Veteran's pain was centered in his left hip rather than up towards his back, and his limp was attributable to his left hip arthritis rather than "radiating pain from [the] back to [the] left hip." See id. The examiner opined that it was merely coincidental that the Veteran has two degenerative diseases. The Board finds the VA examiner's opinion highly probative and concludes it significantly outweighs the opinion from Integrated Pain Associates. The latter opinion is conclusory and omits underlying analyses, reasoning, bases, or rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision . . . ."); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."). In contrast, the VA examiner's opinion was predicated on a physical examination, a consideration of the Veteran's lay statements, and a detailed review of the Veteran's claims folder. The VA examiner's rationale addresses positive evidence in the record, to include Integrated Pain Associates treatment records and opinions included therein. The VA examiner nonetheless found it less likely than not that the left hip disability was caused or aggravated by the low back disability. In reaching this conclusion, the Board has considered the Veteran's lay statements that his left hip and low back disabilities are a single, related issue. Although the Veteran is competent to report hip and back pain, and how that pain limits his ability to stand or walk for long periods, he is not competent to provide an opinion on the etiology of his left hip disability. Any etiological relationship between his left hip disability and his low back disability is complex, not objectively observable, and outside the scope of common lay knowledge. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his lay statements do not constitute competent evidence to show nexus. Based on the foregoing, the claim of entitlement to service connection for a left hip disability is denied. The preponderance of the evidence is against the claim of entitlement to service connection, thus the benefit-of-the-doubt rule is not applicable here. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for the Veteran's left hip disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs