Citation Nr: 1753789	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-06 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for degenerative joint disease (DJD) of the bilateral hips.

2.  Entitlement to service connection for bilateral DJD of the lumbosacral spine.

3.  Entitlement to total disability rating based on individual unemployability (TDIU).



REPRESENTATION

Veteran represented by:	The American Legion





ATTORNEY FOR THE BOARD

I. Umo, Associate Counsel


INTRODUCTION

The Veteran served active duty in the U.S. Army from July 1973 to March 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claim for DJD of the lumbosacral spine, bilateral degenerative joint disease of the hips, and TDIU.  Jurisdiction was subsequently transferred to the Roanoke, Virginia, RO.  

The issues of entitlement to service connection for DJD of the lumbosacral spine and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of the evidence fails to establish that the Veteran's diagnosed DJD of his bilateral hips is etiologically related to service


CONCLUSION OF LAW

The criteria for service connection for DJD of the bilateral hips have not been met.  38 U.S.C. § 1101, 5107 (2014); 38 C.F.R. § 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify & Assist

The duty to notify has been met.  The Veteran has not alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...."  
Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The record reflects that all available records pertinent to the claim have been obtained and that the Veteran has been provided an adequate VA examination.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  

Accordingly, the Board will address the merits of the claims.

Service Connection Claim

The Veteran asserts that his bilateral hip condition is related to a motor vehicle accident that occurred during active duty service.

Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016).  Additionally, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.                 38 C.F.R. §3.303(d). 

Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a) (2016).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of her current symptomatology.  See 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). 

Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau at 1376-77.

The Board must assess the credibility and weight of 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).  The Federal Circuit recognizes that the Board has an inherent fact-finding ability.  Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001); see also 38 U.S.C. § 7104(a).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (West 2014).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Bilateral Hip Condition

In July 2011, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for bilateral hip problems.  

Here, the preponderance of the evidence is against a finding that the Veteran's bilateral hip condition was incurred or aggravated by his active duty service.  The Veteran was diagnosed with bilateral DJD of his hips in May 2013.  See May 2013 C&P Examination.  The first criteria for an award of service connection, a current disability, has been met.  Next, the evidence must show that the Veteran's disability was incurred or aggravated during service.  In this regard, the Veteran's STRs do show complaints of left hip pain.  Specifically, in a January 1975 medical update, the Veteran complained of left hip pain after a motor vehicle accident he suffered while on leave.  He suffered an abrasion of his left hip, which subsequently became infected, but was cleaned and treated.  After this treatment, the Veteran returned to the clinic complaining about the same left hip pain.  An x-ray was performed on the Veteran's left hip, but the results were negative.  The record shows that the Veteran's left hip abrasion was cleaned again.  See STRs, pg. 6.  Additionally, in the radiology report, it was reported that the Veteran was involved in a car accident and complained of pain in his left hip for the past two weeks.  See STRs, pg. 28.  Therefore, the second criteria of an in-service occurrence has been met for the left hip.  

Finally, the last factor required for a grant of service connection is a nexus (link) between the Veteran's in-service injury and his current disability, which is generally proven by medical opinion or competent lay evidence.  

In this instance, the lay evidence offered does not establish a link between the in-service occurrence and the current disability.  At the time of the VA examination, the Veteran could not recall any problems he had with his hips during active duty.  Sometime after discharge, he had problems with the right hip.  The lay evidence does not indicate continuity of hip symptomology from discharge until the first treatment many years after service.  Likewise, the Veteran's separation examination is silent with respect to any hip condition.  

The competent medical evidence does not link a current hip disorder to active duty.  Specifically, in the May 2013 C&P examination, the Veteran reported he had pain in his hip at the same time he hurt his back (prior to enlisting), had a bruise on his leg but no pain after a month.  He could not recall any specific problems with his hip while on active duty.  He reported that, after discharge, he developed trouble with his right hip with "a catch that would make [him] limp every now and then."  He could not report on the date of onset.  He eventually developed more trouble with his hip, and had right hip replacement in May 2012.  The May 2013 VA physician opined that the Veterans bilateral hip condition was less likely than not incurred in or caused by the claimed in-service injury.  The physician reasoned that the Veteran was treated for an abrasion on his left hip while on active duty.  The examiner opined there is no chronicity of a hip condition since active duty until the Veteran was seen at the VAMC in 2005.  The examiner noted it is more likely that events that occurred before or after active duty contributed to the Veteran's current bilateral hip conditions.   

The only evidence which links a current hip disorders to active duty is the Veteran's own allegations.  The Board finds these lay allegations of the etiology of the hip disorders is outweighed by the opinions included in the report of the VA examination which affirmatively found that the Veteran does not have hip disorders which were due to active duty service.  The medical opinions were based on physical examination by a trained professional who reviewed the evidence of record and provided an etiology opinion based on this review.  An adequate rationale was provided which was supported by citations to other evidence of record.  

The preponderance of the evidence is against granting service connection for the Veteran's bilateral DJD of the hips.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  As such, the benefit-of-the-doubt doctrine is inapplicable.  38 C.F.R. § 4.3.

ORDER

Entitlement to service connection for bilateral DJD of the Veteran's hips is denied.



REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.     38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017).  

DJD Lumbosacral Spine and TDIU

Here, the Veteran indicated that he injured his back in a motor vehicle accident that predated his entry into service.  See July 2013 Notice of Disagreement.  The Veteran informed the RO that those records could be obtained from the Petersburg General Hospital.  See February 2012 VA 21-4138 Statement in Support of Claim.  As such, under the VA's duty to assist claimants, it must gather all pertinent records of VA treatment and make reasonable efforts to obtain private medical records.  See 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2017).  In this instance, the Veteran provided the AOJ with a VA 21-4142, which authorized the release of his medical information to the VA from the Petersburg General Hospital.  See February 2012 VA 21-4142 Authorization for Release of Information.  However, after review of the record, the Board finds that the AOJ failed to request the medical records from the Petersburg General Hospital.  Thus, the duty to assist has not been met and the issue must be remanded.  The AOJ should attempt to obtain all outstanding VA and private treatment records related to the treatment of the Veteran's lumbosacral spine.  

Furthermore, the Veteran asserts that he is totally disabled due to his back and other disabilities.  However, the Veteran's claim for TDIU is inextricably intertwined with the issue of entitlement to service connection for DJD of his lumbosacral spine, which is being remanded for further evidentiary development.  Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and obtain the necessary release form to obtain records from Petersburg General Hospital. The efforts to obtain these records must be documented, and any evidence received in response to this request must be associated with the claims folder for consideration.  If attempts to obtain these records are unsuccessful, and further attempts to obtain them would be futile, then also document this in the file and notify the Veteran and his representative accordingly.

2.  Obtain and associate with the claims file updated VA treatment records. 

3.  Conduct any additional development necessary.

4.  Then, readjudicate the Veteran's claims on appeal.  If the benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC).  Allow an appropriate period of time for response before returning the case to the Board.

The Veteran and his representative have the right to submit additional evidence and argument on the 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).





______________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs