Citation Nr: 1802699 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-14-279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral knee disorders. 2. Entitlement to service connection for bilateral ankle disorders. 3. Entitlement to service connection for a left hip disorder, to include as secondary to bilateral knee and ankle disorders. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps with active duty from December 1982 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2009, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge who is no longer at the Board. A transcript of that hearing has been associated with the record. In a letter sent to the Veteran in October 2017, the Veteran and his representative were notified of his right to another Board hearing. The October 2017 letter noted that if no clarification was received within 30 days, then the Board would assume that the Veteran did not wish to have another hearing would proceed accordingly. As 30 days passed without further correspondence from the Veteran, the Board will proceed with the adjudication of the Veteran's claims. This claim was most recently before the Board in June 2016 at which time it was remanded for further development, to include new VA examinations. The claim has now returned to the Board for further appellate action. Pursuant to the Board's June 2016 remand directives, the Veteran was provided new VA examinations in connection with his claims in July 2016, February 2017, and April 2017. Stegall v. West, 11 Vet. App. 268 (1998). Following those examinations, a September 2016 rating decision granted the Veteran's claim for service connection for a left ankle strain, right ankle strain, and right knee strain. A July 2017 rating decision also granted the Veteran service connection for left knee arthritis, left knee instability, and right knee instability. As these rating decisions constitute a full grant of benefits for entitlement to service connection for his bilateral ankle and bilateral knee disability claims, these issues are no longer in appellate status and will therefore be dismissed. FINDINGS OF FACT 1. While the Veteran's claim was in appellate status, a September 2016 rating decision granted the Veteran's claim for entitlement to service connection for a right knee strain and there is therefore no remaining case or controversy pertaining to this claim. 2. While the Veteran's claim was in appellate status, a July 2017 rating decision granted the Veteran's claim for entitlement to service connection for left knee arthritis and left knee instability and there is therefore no remaining case or controversy pertaining to this claim. 3. While the Veteran's claim was in appellate status, a September 2016 rating decision granted the Veteran's claim for entitlement to service connection for a left ankle strain and there is therefore no remaining case or controversy pertaining to this claim. 4. While the Veteran's claim was in appellate status, a September 2016 rating decision granted the Veteran's claim for entitlement to service connection for a right ankle strain and there is therefore no remaining case or controversy pertaining to this claim. 5. The preponderance of the evidence is against a finding that the Veteran's left hip disability was incurred in or related to his active duty service or was caused or aggravated by his service-connected bilateral ankle disabilities or his service-connected bilateral knee disabilities. CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a right knee disability. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.101 (2017). 2. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a left knee disability. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.101 (2017). 3. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a right ankle disability. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.101 (2017). 4. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a left ankle disability. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.101 (2017). 5. The criteria for service connection for a left hip disability, including as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110; 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). Here, letters sent to the Veteran in July 2007 and September 2010, plus additional development letters, satisfied the VCAA notice requirement for his entitlement to service connection claim because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the July 2017 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and post-service VA treatment records have been obtained and associated with the claims file to the extent that they were available. In this regard, the Board notes that the Veteran and his representative have asserted that there are missing service treatment records from the Veteran's first 90 days in-service, specifically during the time that the Veteran was in bootcamp. However, a formal finding of unavailability was completed in November 2010 and was associated with the Veteran's claims file. The Veteran was most recently provided an examination in connection with his claim for entitlement to service connection for a left hip disability in February 2017 and a separate addendum opinion was issued in October 2017. A review of the examination reports reflects that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. Additionally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2016) requires that the Veterans Law Judge (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 2009 videoconference hearing, the Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service. They also asked questions to draw out the current state of the Veteran's disabilities. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Dismissed Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, September 2016 and July 2017 rating decisions granted the Veteran's claims for entitlement to service connection for bilateral ankle disabilities and bilateral knee disabilities, which constitute a full grant of benefits for these issues. As a result, no case or controversy regarding these issues remains and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to these issues only. III. Service Connection for Left Hip Disability The Veteran and his representative assert that his current left hip bursitis is related to his active duty service, to include as secondary to his service-connected bilateral ankle and bilateral knee disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A condition precedent for establishing service connection on a direct or secondary basis is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with a left hip strain in September 2010, and that diagnosis was subsequently clarified as left hip bursitis in February 2017. See, VA examinations dated September 2010 and February 2017. Accordingly, the Board finds that the threshold criterion for direct or secondary service connection has been met. With respect to an in-service occurrence, the Board notes that the Veteran's service treatment records are silent as to any injury or treatment for a hip disorder, to include his October 1986 separation examination. The Board notes that the absence of documented treatment in service is not fatal to a service connection claim. A veteran is considered competent to report that which she perceives through her symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the Veteran has acknowledged that there is no treatment or diagnosis of a left hip disability in service and has instead asserted that his left hip disability began after service and is a result of his bilateral knee and bilateral ankle disabilities. See, September 2009 hearing transcript. Additionally, as the first documented treatment or evidence of a left hip disability is not shown until several years after the Veteran's discharge from active duty and all of the VA examiners noted that the pain began several years after service, the Board notes that this passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. See, VA examinations dated September 2010, June 2015, February 2017; Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the Board finds that the Veteran is not entitled to service connection for a left hip disability on a direct basis. 38 C.F.R. § 3.303. Turning to the Veteran's assertion that his current left hip bursitis is either caused or aggravated by his service-connected bilateral knee or bilateral ankle disabilities, the Board notes that while the Veteran is competent to report certain symptoms that are observable to a lay person, the Veteran has not shown that he has the medical training necessary to opine on the etiology of his current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, while the Board has considered the Veteran's subjective reports of symptoms, they do not carry significant probative weight. Accordingly, in evaluating the Veteran's claims, the Board will rely more on the medical evidence of record. The Veteran was first afforded a VA examination in connection with his claim in September 2010. During this examination, the VA examiner diagnosed the Veteran with a left hip strain and opined that no nexus opinion can be established between the Veteran's current left hip strain and his ankle and knee disabilities. Additionally, the examiner also noted that the Veteran's hip pain began several years after he was discharged from service. See, September 2010 VA examination. Following the Board's July 2014 remand, the Veteran received another VA examination for his claim for entitlement to service connection for a left hip disability in June 2015. During this examination, the VA examiner confirmed the Veteran's diagnosis of left hip strain. This examiner also noted that there were no left hip problems documented during service and stated that "there is no evidence that bilateral ankle or knee conditions caused or aggravated his left hip condition." See, June 2015 VA examination. In June 2016, the Board found this opinion to be inadequate and subsequently remanded for a new VA examination. In February 2017, a VA examiner clarified the Veteran's left hip diagnosis as bursitis. The examiner opined that the Veteran's current hip condition is not due to or aggravated by the Veteran's service-connected bilateral knee or ankle disabilities as "there is no physiologic basis for such a conclusion." See, February 2017 VA examination. As this opinion did not provide a thorough rationale, an addendum opinion was sought in October 2017. Following a thorough review of the Veteran's claims file, to include lay statements made by the Veteran, the VA examiner opined that the Veteran's current left hip disability is not caused or aggravated by his service-connected bilateral knee or ankle disabilities. Specifically, the examiner noted that "current orthopedic, military medicine and rehabilitation medicine literature lacks sufficient, objective medically and/or orthopedically-based, clinical evidence to support an anatomical and/or pathophysiologic nexus between left hip disorder and/or bilateral knee strain with minimal loss of flexion and extension... and/or bilateral ankle problems." The examiner went on to state that the "minimal clinical changes in the left hip are consistent with a normal and natural aging process and without any objective orthopedically-based, clinical evidence and/or subjective complaints related to left hip trauma, relationship to chronicity and continuity and/or secondary to bilateral knee and bilateral ankle disorders." See, October 2017 VA addendum opinion. As this opinion is supported by a thorough rationale and was furnished following a complete review of the Veteran's claims file, the Board has assigned this opinion with high probative value. The Board notes that the Veteran submitted a private treatment record from Dr. M.Y. for treatment of his left hip in October 2007, which the Veteran mentions during his September 2009 videoconference hearing. While this physician noted that the Veteran had left hip bursitis, the examiner did not provide an etiological opinion specifically for his left hip disability. In fact, Dr. M.Y. states that the Veteran's left knee is a result of aggravation of symptoms in the Marine Corps, but does not provide that opinion for the Veteran's left hip. See, private treatment records from Dr. M.Y. dated October 2007. Accordingly, for the reasons stated above, the Board concludes that preponderance of the evidence is against a finding that the Veteran's current left hip bursitis is related to his active service or caused or aggravated by his service-connected bilateral knee or bilateral ankle disabilities and therefore, the claim must be denied. ORDER Entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a left knee disability is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for a left ankle disability is dismissed. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs