Citation Nr: 1802663 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-22 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDINGS OF FACT 1. The Veteran's right hip disability is not etiologically related to an in-service injury, event, or disease. 2. The Veteran does not have a currently diagnosed left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 through March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and March 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Although the decisions were issued by the Atlanta RO, the Board notes the Veteran resides in Florida. The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in a November 2016 videoconference hearing with the RO in St. Petersburg, Florida. A transcript is of record. In May 2017, the Board remanded the above-listed issues for further development. That development having been completed to the extent possible, the matter is again before the Board for appellate review. The RO granted the Veteran's claim for entitlement to service connection for a right shoulder disability in a June 2017 rating decision. This decision was a complete grant of benefits with respect to the claim. Thus, the issue of service connection for a right shoulder disability is no longer on appeal before the Board. 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). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309) were initially provided in the October 2014 Statement of the Case. The regulation pertinent to claims for secondary service connection (38 C.F.R. § 3.310) was included in the June 2017 Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. 1. Right Hip Disability As an initial matter, the Board notes that the Veteran had separately raised a claim under 38 U.S.C.A. § 1151 that his right hip condition was caused or aggravated by a VA examination. That claim was denied in a 2014 decision, which he did not appeal. Although the Board has an obligation to consider all potential theories of entitlement, here, his service connection and section 1151 claims were separately adjudicated, and he only appealed the service connection denial. The Board does not have jurisdiction over the section 1151 claim, which is factually and legally distinct from his service connection claim. The Veteran asserts that he is entitled to service connection for a right hip disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). The Board finds that competent, credible, and probative evidence does not establish that the Veteran's right hip osteoarthritis is etiologically related to the Veteran's active service. Service treatment records indicate the Veteran was treated for a mild contusion on his right thigh after a wall locker fell on him in October 1985. There is no follow up treatment or any other treatment specifically for a right hip or thigh condition. The Veteran's February 1988 separation examination was negative for arthritis or any other lower extremity or hip disability. The Veteran was afforded a VA examination for his hip disability in October 2011. He reported having no treatment for his right hip since 1988. In a December 2011 addendum opinion, the examiner noted there was no evidence the Veteran had a chronic hip disability. Initially, the Board notes that the Veteran was not diagnosed with mild osteoarthritis of his right hip until March 2012. Thus, his disability was not factually shown during service and did not manifest to a compensable degree within one year of separation from service. There is also no continuity of symptomatology, as the Veteran's medical records do not indicate he complained of symptoms of a right hip disability until more than two decades after separating from service. The Veteran was afforded a VA examination in May 2017. The examiner opined that the Veteran's service treatment records were silent for hip problems and "rigorous physical training" does not have a causal link to osteoarthritis of the hip 27 years later. Although the examiner noted the Veteran was diagnosed with a mild right thigh contusion in 1985, it was further noted that there were no other complaints of a right thigh or hip disability. The Board finds this opinion to be probative as the examiner reviewed the Veteran's claims file, noting his in-service injury, and opined it was less likely than not that the Veteran's current right hip disability was etiologically related to his active duty service. The Veteran's lay statements and testimony have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis or etiology of a specific disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the preponderance of the evidence weighs against the Veteran's claim for entitlement to service connection for a right hip disability, the claim must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Left Shoulder Disability The Veteran asserts that he has a left shoulder disability secondary to his service-connected right shoulder disability. Specifically, he argues that favoring his right shoulder has caused his left shoulder to degenerate. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran does not have a currently diagnosed left shoulder disability. Review of the Veteran's claims file shows no current diagnosis for any left shoulder disability. Although VA treatment records indicate the Veteran intermittently complained of bilateral shoulder pain, he has only been diagnosed with and treated for a right shoulder disability. The Veteran was afforded a VA examination in May 2017 to determine the etiology of his right shoulder disability. During the examination, the Veteran's left shoulder was evaluated. Range of motion testing reflected the Veteran had flexion to 130 degrees, abduction to 130 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. The examiner noted the Veteran's left shoulder demonstrated a decreased range of motion due to pain, but that pain did not result in or cause functional loss. Pain alone, without an underlying diagnosis or functional impairment, is not a service connectable disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the Board recognizes that the Veteran is competent to report the observable manifestations of his claimed disability, he is not competent to render a diagnosis based on the manifestation of those symptoms since he does not have the requisite medical knowledge or training. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran's representative has argued that, on remand, the RO did not continue to develop his claim for a left shoulder disability, to include as secondary to his service-connected right shoulder disability. However, this is not the case. As discussed above, the May 2017 VA examiner found that the Veteran's left shoulder pain did not cause functional loss, and, after a full review of the medical record, no currently diagnosed left shoulder disability was identified. As there is no evidence of a current disability, there is no basis on which the claim for service connection may be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is therefore unnecessary to address any other element of service connection. Accordingly, the claim for service connection for a left shoulder disability is denied. ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left shoulder disability, to include as secondary to the Veteran's service-connected right shoulder disability, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs