Citation Nr: 1800933	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  10-18 983A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint).

2.  Entitlement to service connection for a left hip disorder, to include as secondary to residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint).


REPRESENTATION

Appellant represented by:	Ellen Rheaume, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1961 to August 1963.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  The case was remanded in July 2016 for further development.

The Veteran testified at a June 2017 videoconference hearing before the undersigned.  A copy of the transcript has been associated with the claims file.

The issues of entitlement to service connection for a spine disability, to include osteoporosis and osteopenia, and entitlement to an effective date prior to November 17, 2015 for a 10 percent disability rating for residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint) were raised at the June 2017 hearing and in a July 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The preponderance of the evidence is against finding that a left hip disorder is related to active service; that left hip arthritis manifested to a compensable degree within one year following discharge from active service; and that a left hip disorder was caused or worsened by a service connected disorder.


CONCLUSION OF LAW

A left hip disorder was not incurred or aggravated during active duty service, degenerative arthritis of the left hip may not be presumed to have been so incurred, and a left hip disorder was not caused by and is not aggravated by residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint).  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

With respect to the claim decided, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  Further, the Board finds that there has been substantial compliance with its July 2016 remand directives.  See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Relevant Laws and Regulations

Generally, to establish service connection, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., the "nexus" requirement.  38 U.S.C. § 1131; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   

If chronicity during service is not established, service connection may also be established by continuity of symptomatology, which satisfies the in-service and nexus requirements of service connection.  38 C.F.R. § 3.303.  The Veteran must show that (1) a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the continuity of symptoms.  Fountain v. McDonald, 27 Vet. App. 258, 263 - 64 (2015).   

Pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).   

If a chronic disease listed under 38 C.F.R. § 3.309(a) manifested in service or during a presumptive period following separation, then service connection will be established for subsequent manifestations of the same chronic disease unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012).  

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   

Analysis

In this case there is no competent evidence showing that a left hip disorder was noted during service. The Veteran's service treatment records, including a November 1960 pre-enlistment examination, an August 1961 enlistment examination, and a June 1963 separation examiner do not reveal any evidence of a left hip injury or disorder.  Further, there is no evidence of the appellant reporting, or examiners finding a continuity of symptomatology involving the left hip in the years following the Veteran's separation from active duty.  Additionally, there is no competent evidence showing that left hip arthritis was manifested to a compensable degree within one year of the claimant's discharge from active duty. It is notable that the appellant does not argue to the contrary.  As a result, service connection on direct and presumptive bases cannot be granted.  

The Veteran does contend that he has a left hip disorder secondary to residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint).  Specifically, the Veteran claims that his left hip disorder is the result of a fall that occurred in October 1999 when he twisted his body so as to fall on the left side of his body in order to avoid extending his right arm, which would redislocate his service connected right shoulder.   

The record does verify that the appellant is service connected for a right shoulder disorder, i.e., residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint). The Veteran is also currently diagnosed with left hip degenerative arthritis and osteoporosis as detailed in February 2004 and November 2005 treatment records, respectively.  Hence, the Board finds that the Veteran has a current disability as required by 38 C.F.R. § 3.303.  

The Board finds, however, that there is no competent evidence of a nexus between the Veteran's service-connected right shoulder disability and any left hip disorder.  The record shows that the Veteran fell and injured his left hip in October 1998, but does not show that the Veteran reported that his left hip injury was incurred while attempting to protect his right shoulder.  Additionally, the October 1998 treatment records reveal that an orthopedist evaluated the Veteran and concluded that x-rays were not required.  By November 1998, the Veteran had healed enough to return to his normal running routine and by January 1999, he had full range of motion of his left hip.  

As noted the contemporaneous medical records from the October 1998 fall do not indicate that the Veteran fell and injured his left hip in order to protect his right shoulder.  The earliest documentation of the Veteran's assertion is a January 2008 statement submitted in conjunction with his claim for service connection.  The Board acknowledges that the Veteran reported that he fell on his left hip to protect his right shoulder in a January 2008 statement, March 2010 RO hearing, and June 2017 hearing.  The Board finds, however, that the probative value of appellant's current lay statements, which are presented in support of a claim for compensation, are outweighed by the contemporaneously prepared treatment records which do not reflect that the Veteran fell on his left hip to protect his right shoulder.  Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony).  

As the preponderance of the most probative evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

The claim is denied.


ORDER

Entitlement to service connection for a left hip disorder to include as secondary to residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint), is denied.



REMAND

The August 2017 VA examination is inadequate to permit a proper evaluation of the nature and extent of the appellant's right shoulder disability.  In this regard, the Veteran reported having painful flare-ups of the shoulder, but the examiner did not address the impact of any flare-up in terms of the loss of additional motion during a flare up because appellant was not able to replicate a flare up on examination.  Significantly, however, in Sharp v. Shulkin, 29 Vet.App. 26 (2017), the United States Court of Appeals for Veterans Claims held that examiners must estimate the functional loss that would occur during flare-ups.  Specifically, examiners must name the precipitating and alleviating factors for the flare and estimate "per the veteran" the extent to which flares affect functional impairment.  As the October 2017 examination fails to address these matters, further development is required.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to address the severity of his residuals of a right shoulder injury (osteoarthritis of the right glenohumeral joint).  Provide the examiner with access to the Veteran's electronic VBMS file, Virtual VA file, and a copy of this remand. A complete rationale for any opinions must be provided. All indicated tests must be performed.

The examiner must address the severity, frequency and duration of any flare-ups for the right shoulder; to specifically include the precipitating and alleviating factors for a flare up, and estimate "per the veteran" the extent to which flare-ups affect functional impairment.

A full and complete explanatory rationale must be provided for any opinion offered.  If any requested opinion cannot be answered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training to offer an opinion.

2.  The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  

3.  After completion of the foregoing and any additional development needed, readjudicate the remaining claim. If any benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs