Citation Nr: 1754632 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 10-39 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from April 1992 to April 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a September 2011 Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This case has been before the Board several times. Most recently, in August 2016, the Board remanded the case to obtain a VA opinion or examination regarding the etiology of the right hip disability, as well as the Veteran's chest wall pain. Subsequently, the RO granted service connection for the chest wall pain in a May 2017 rating decision. With regard to the claimed hip disability, the development requested having been completed, the case is now appropriate for appellate review. FINDINGS OF FACT Symptoms of a right hip disability were not continuous or recurrent in service or since service separation, and there is no medical nexus between the current right hip disability and either active service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. The condition at issue is not one of the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current right hip disability is due to active service. Specifically, at his September 2011 Board hearing, he testified that he incurred his right hip disability as a result of rigorous physical activity such as physical training (e.g., sit-ups, pull-ups, and heavy lifting), and as a result of throwing grenades, shooting, and practicing close-quarters combat with the right side of his body. Alternatively, he avers that the right hip disability was caused or aggravated by his service-connected back or bilateral knee disabilities. However, the Board finds that the weight of the evidence is against a grant of service connection. Service treatment records are negative for any signs, symptoms, treatment, reports, or diagnoses of a right hip disability. The October 1997 separation examination report indicates normal clinical evaluation of the lower extremities, and the Veteran denied arthritis and "bone, joint, or other deformity," on his Report of Medical History. In January 1998, the Veteran signed a Report of Medical Assessment indicating that his health status had not changed since he was last examined in October 1997. Following the Veteran's separation from service in 1998, the first post-service mention of right hip symptoms is in September 2008, when he filed his claim for service connection. VA treatment records do not show any right hip complaints or findings until 2015. The Veteran was afforded a VA examination in June 2013, at which the VA examiner diagnosed right hip tendinitis and opined that it was not caused by his time in service or due to any in-service event or condition, including his service-connected back disability. The VA examiner noted that review of his treatment records revealed a June 2009 initial primary care visit at which the Veteran did not mention any right hip problems, and that, at that time, the remaining VA treatment records were silent as to any reports of hip pain. The Veteran reported the onset of right hip pain in 1993, during active service, after the onset of his right knee problems. He denied experiencing any injury to the hip, but stated that the onset was gradual. He stated that he sought medical attention for the hip in 1992 or 1993, but as noted above, service treatment records are silent as to any mention of right hip problems. Current hip x-rays were unremarkable with no evidence of degenerative joint disease. In support of his opinion that the current right hip tendinitis is not related to active service or to the service-connected back disability, the examiner reasoned that the Veteran had been out of service for fifteen years and there was no objective evidence in his service treatment records that he complained of, sought treatment for, or had a problem with his right hip while in service. Pursuant to the Board's August 2016 remand, the 2013 VA examiner provided an addendum opinion in January 2017 in which he reiterated his original opinion but added that the right hip disability was also not related to the Veteran's service-connected bilateral knee disability. A rationale supporting such conclusion was not provided at that time. In June 2017, the 2013 VA examiner provided another addendum opinion in which he clarified that the right hip disability did not have its onset during active service nor was it caused by his military service. He also noted that, during the June 2013 evaluation, the Veteran reported the onset of right hip pain shortly after the onset of right knee pain in 1993. However, no medical records were located regarding complaints of right hip pain, and the first documentation of right hip problems was 20 years after the onset of the knee disability. The VA examiner stated that if the hip began bothering him in 1993, then by 2013, his hip x-ray would likely not have been normal. The examiner further stated that, typically, if a back or knee condition alters a gait or the individual's weight-bearing resulting in hip pain, it will do so in significantly less than 20 years. Thus, the examiner concluded that there is no objective indication that there is any correlation between the back or knees and the hip pain. Therefore, the VA examiner opined that his right hip problem is not caused by, or permanently aggravated by, his lumbar spine or bilateral knee disabilities. After a review of all the evidence of record, lay and medical, in conjunction with the applicable laws and regulations, the Board finds that the preponderance of the evidence demonstrates that there was no event, injury, or disease manifesting a right hip disability during active service, and that symptoms of the claimed disorder were not continuous or recurrent in service. As noted above, service treatment records are entirely negative for any symptoms of a right hip disability. Moreover, the preponderance of the evidence demonstrates that symptoms of the claimed disorder have not been continuous or recurrent since separation from active service in April 1998. As noted above, the first mention of right hip problems was in 2008, when the Veteran filed his claim for service connection. Moreover, while the Veteran reported a 1993 onset of symptoms this is contradicted by the fact that he denied symptoms in his 1997 report of medical history completed in conjunction with his separation examination. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed disorder for 10 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of a right hip disability after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of the claimed disorder have not been continuous since service separation is the post-service VA treatment records that mention multiple medical conditions but do not include complaints of right hip pain until 2015, 17 years after service separation. The absence of documentation of reporting of symptoms of the claimed disorder throughout these post-service records is especially probative in this case as it is expected that he would report all symptoms he was experiencing in order to receive the best treatment. To the extent that the Veteran's recent assertions made in the context of the current disability claim can be interpreted as a claim of continuous or recurrent symptoms of the claimed disorder since service, the Board finds that, while the Veteran is competent to report the onset of symptoms of the claimed disorder, these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's assertions of continuous or recurrent symptoms of a right hip disability after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, which are negative for any signs, symptoms, complaints, treatment, or diagnosis of the claimed disorder; the lack of any documentation of reports or treatment for a right hip disability until 2008, 10 years after service separation; and the negative VA treatment records until 2015, 17 years after service separation. Once more, it is noted that relevant symptoms were denied in connection with the separation examination in 1997. If he had been experiencing problems with the right hip since 1993, it would be expected that such complaints would have been noted at the time of separation. Given the above, the Board does not find that the evidence sufficiently supports continuous or recurrent symptomatology of the claimed disorder since service, so as to warrant a grant of service connection. As above, the Board acknowledges the Veteran's belief that his current right hip disability is related to active service or to a service-connected disability. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau; see also Barr (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Jandreau. Moreover, the Board finds that no medical opinions are of record supporting a relationship between the Veteran's current right hip disability and either active service or a service-connected disability, nor is there any other indication in the medical evidence of record that there is a relationship between the current claimed disorder and either active service or a service-connected disability. As noted above, in June 2013, January 2017, and July 2017 reports, the VA examiner opined that the Veteran's right hip disability is not related to active service or to the service-connected back or bilateral knee disabilities. The Board finds these examination reports to be the most probative evidence of record, as they are based on an interview and examination of the Veteran and are supported by thorough rationale and citations to the medical evidence of record. Moreover, there are no contrary opinions of record. In sum, the weight of the competent evidence demonstrates that there is no relationship between the Veteran's right hip disability and either active service or a service-connected disability. Based on the evidence of record, the weight of the evidence demonstrates no relationship between the Veteran's right hip disability and his military service or a service-connected disability, including no credible evidence of continuous or recurrent symptoms of the claimed disorder during active service, continuous or recurrent symptomatology of the claimed disorder following service separation, or competent medical evidence establishing a link between the right hip disability and either active service or a service-connected disability. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a right hip disability, and outweighs the Veteran's more recent contentions regarding in-service continuous or recurrent symptoms and continuous or recurrent post-service symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by way of an October 2008 letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, a VA examination and opinion, and the Veteran's statements, including his testimony at the September 2011 Board hearing. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2011 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing his claim, including regarding specific evidence that may help substantiate his claim. Moreover, neither the Veteran, nor his representative, has 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 Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. As discussed above, VA opinions were obtained in June 2013, January 2017, and July 2017. To that end, 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 VA opinions obtained in this case are adequate. The opinions were predicated on a complete physical examination and interview of the Veteran as well as a full reading of the VA medical records in the Veteran's claims file. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinions stated, relying on and citing to the records reviewed. The Board also finds that the July 2017 VA opinion satisfies the Board's February 2013, March 2016, and August 2016 remand directives. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claimed decided herein has been met. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a right hip disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs