Citation Nr: 1805167 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-20 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a bilateral hip/abdominal disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the Veteran's file was subsequently transferred to the RO in New Orleans, Louisiana. In August 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this matter for development in January 2013, April 2016, March 2017, and October 2017, and it now returns for further appellate review. 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 At no time during the pendency of the claim does the Veteran have a current diagnosis of a bilateral hip/abdominal disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for a bilateral hip/abdominal disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under application regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2016); see also Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a bilateral hip/abdominal disorder that began in service, or, as raised in his representative's January 2018 Appellant's Post-Remand Brief, is secondary to his service-connected posttraumatic stress disorder (PTSD). Specifically, during his August 2012 Board hearing, he testified that, while on active Army Reserves duty in February 1966, he woke up one day and was experiencing pain in his upper abdominal area, right below his rib cage. He further testified that such pain had continued to the present time. As such, he claims that service connection for a bilateral hip/abdominal disorder is warranted. However, as will be discussed below, the Board finds that service connection for a bilateral hip/abdominal disorder is not warranted as the probative evidence of record fails to establish that the Veteran has a current diagnosis of a bilateral hip/abdominal disorder prior to and/or during the pendency of the claim. In this regard, service treatment records (STRs) reflect that, in April 1965, the Veteran reported feeling left flank pain. Additionally, his December 1963 Report of Medical History noted that the Veteran experienced an umbilical hernia, which was repaired when he was 3 years old. The Veteran's post-service private treatment records indicate that, in December 1994, he underwent a marlex repair of the right indirect inguinal hernia. A January 2001 private treatment record notes an assessment of abdominal/lower pelvic discomfort of unclear etiology. Additionally, the Veteran's post-service VA treatment records indicate that, in April 2009, an assessment of 12th rib costochondral pain on both sides, and it was noted that he was scheduled for a left hernia repair the following month. Records suggest that such was ultimately performed in approximately 2009/2010. A December 2013 VA treatment record notes an assessment of irritable bowel syndrome (IBS). A July 2014 VA treatment record reveals an assessment of diverticulosis. Such record further reveals the Veteran's complaint of ongoing chronic pain for many years on both sides of his lower abdomen. A November 2014 VA treatment record notes an assessment of a 10-year history of mild chronic bilateral abdominal pain of unknown etiology, unlikely associated with degenerative joint disease. In August 2013, pursuant to the January 2013 Board remand, the Veteran underwent VA examinations (hips and hernias) to determine the nature and etiology of his claimed bilateral hip/abdominal disorder. With respect to the Veteran's hips, the VA examiner found that such were normal and did not render a diagnosis. With respect to the Veteran's hernias, the VA examiner found that he did not have a current hernia present. Here, the examiner noted that the Veteran had a right inguinal hernia repaired in 1994, and a left hernia repaired in 2010. The examiner further noted that the Veteran's right inguinal hernia occurred and was repaired in service, and his left hernia occurred after service. The examiner further found that there was no clear evidence that either of the Veteran's hernias pre-existed service; his left hernia was not caused/aggravated/affected by service; both hernias were successfully repaired; and he had no symptoms related to either hernia. In September 2013, an addendum opinion was obtained as the Veteran's STRs did not show that he was treated for a right inguinal hernia in service. In this regard, the September 2013 VA examiner clarified that the Veteran had a right inguinal repair in 1994 at Mercy/Baptist Hospital and a left inguinal repair at Tulane Hospital in approximately 2010. The examiner noted that the August 2013 VA hernia examiner reported that the Veteran complained of mild tenderness with direct palpation over both abdominal/flank areas, and the only regional pain for which the Veteran was evaluated for in service was left flank pain. The examiner concluded that the etiology of the Veteran's bilateral lateral abdominal discomfort remained undetermined. Pursuant to the April 2016 Board remand, the Veteran underwent a second VA examination in July 2016 with respect to his hips and thighs. In this regard, the Board determined that a new VA examination and opinion was necessary so as to attempt to diagnose the Veteran's abdominal complaints and address whether the flank pain noted at the August 2013 VA examination was related to the flank pain noted in the Veteran's April 1965 STR. In July 2016, the VA examiner found that there was no evidence to suggest that the Veteran's current flank or abdominal pain was related to his hips. As rationale for the opinion, the examiner noted the Veteran's complaints of anterior hip pain, but found that his pain was not from the hip joints, and X-rays and computerized tomography (CT) scans of his hip joints were normal. Rather, the examiner explained that the Veteran's pain was in his abdomen just below the rib cage. The examiner acknowledged the Veteran's prior history of a hernia repair at age 3, a right inguinal repair in 1994, and a left inguinal repair in approximately 2009/2010. In this regard, the examiner observed that the August 2013 VA examiner did not believe that the Veteran's complaints of abdominal pain were related to his prior hernia repairs. The examiner further observed that the August 2013 VA examination of the Veteran's hips revealed normal hip joints and a finding that his lower abdominal pain was not related to his hip joints. However, the March 2017 Board remand found that an addendum opinion was necessary to decide the claim on appeal. Specifically, the Board indicated that the July 2016 VA opinion did not provide a diagnosis to explain the Veteran's bilateral hip/abdominal pain, and no reason was given as to why such a diagnosis could not be given. The Board further indicated that the July 2016 VA examiner failed to offer an opinion as to whether the Veteran's abdominal disorder had its onset in, or was otherwise related to, his military service, to include consideration of the flank pain noted in the August 2013 VA examination and his April 1965 STR, as directed by the April 2016 Board remand. Accordingly, an addendum opinion was rendered in April 2017 by the July 2016 VA examiner. At this time, the examiner reported that the source of the Veteran's abdominal pain did not have a hip joint or orthopedic origin. The examiner further reported that there were normal studies with regards to the Veteran's hip joints, and a normal clinical examination of the same. The examiner determined that the origin of the Veteran's abdominal pain would be better assessed by a general medical/internal medicine provider as he was from a strictly orthopedic background and could not say definitively why or where the Veteran's abdominal pain originated. Subsequently, in July 2017, an addendum opinion was obtained as the April 2017 VA examiner indicated that the origin of the Veteran's abdominal pain would be better assessed by a general medical/internal medical provider. In this regard, the July 2017 VA examiner reported that the Veteran had multiple physical examinations, multiple CT scans, and an MRI to evaluate his subjective abdominal pain complaints. The examiner further reported that the physical examinations had failed to elicit an objective abnormality or pain response. The examiner indicated that the radiologic studies had not discovered any findings that resulted in a diagnosis or cause of the Veteran's subjective discomfort. The examiner further indicated that the discomfort as reported by the Veteran during a 2001 evaluation was only present when he "la[id] down" and was not elicited during the lifting required by his mail handler job at the time. Additionally, the examiner reported that the evaluation for the Veteran's left flank pain complaint during his military service only found a discrepancy in his right and left kidney size, but no cause or diagnosis. Here, the examiner further reported that such a diagnosis could not be determined because of normal physical examination findings along with a normal diagnostic test. The examiner concluded that there was no current "disability" that could be related to either the August 2013 flank pain during the VA examination or the April 1965 STR identified pain. The examiner further concluded that the Veteran's pain appeared subjective in nature and without abnormal physical or radiologic findings. However, the October 2017 Board remand found that an addendum opinion was necessary to decide the claim on appeal. Specifically, the Board indicated that, while the foregoing opinions adequately addressed whether the Veteran had a current diagnosis of a bilateral hip disorder, and whether his abdominal pain was related to his previously repaired hernias, to include whether such were then related to his military service, such opinions did not address whether the Veteran's abdominal pain was related to his diagnosed gastrointestinal disorders, to include IBS and/or diverticulosis and, if so, whether such, in turn, was related to his military service. Accordingly, an addendum opinion was rendered in November 2017 by an additional VA examiner. At such time, the examiner reported that the Veteran's abdominal pain was not consistent with a diagnosis of IBS. Here, the examiner explained that the Veteran's pain was only present when he was laying down and was not described as sharp/crampy/bloating, which would be consistent with IBS. The examiner further reported that diverticulosis was an asymptomatic anatomical finding on a CT scan or colonoscopy, and did not cause symptoms. Additionally, the examiner indicated that, even if the Veteran's abdominal pain was secondary to his IBS, it would less likely than not be due to flank pain/palpable tenderness while in service. Here, the examiner explained that IBS did not cause flank pain/palpable tenderness; and that IBS was associated with epigastric/mid-abdominal pain, and certainly not flank pain. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has had a bilateral hip/abdominal disorder at any time during, or prior to, the pendency of his claim. In this regard, the Board finds that the August and September 2013 VA examiners' opinions that the Veteran's abdominal pain was not related to his previously repaired hernias; the April and July 2017 VA examiners' opinions that there was no evidence of a current bilateral hip disorder; and the October 2017 VA examiner's opinion that the Veteran's abdominal pain was not related to his diagnosed gastrointestinal disorders, to include IBS and/or diverticulosis, are entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran. Additionally, the Board observes that the examiners' opinions are supported by the medical records on file, which are entirely negative for a current diagnosis of a bilateral hip/abdominal disorder. Furthermore, neither the Veteran nor his representative has submitted any statements, or any other evidence, suggesting a confirmed diagnosis of a bilateral hip/abdominal disorder. The Board has also considered the Veteran's assertions that he currently has a bilateral hip/abdominal disorder related to his military service or PTSD. As a layperson, the Veteran is certainly competent to report matters within his personal knowledge, such as the occurrence of an injury or event, or his own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, although the Veteran is competent to report his current pain and discomfort, he is not competent to diagnose a bilateral hip/abdominal disorder, or attribute his current complaints to a specific diagnosis, as such requires medical training and testing. Davidson v. Shinseki, 81 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In the instant case, there is no indication that the Veteran is competent to attribute his bilateral hip/abdominal discomfort and pain to a diagnosed disorder as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a determination. Accordingly, the Veteran's assertions in this regard are afforded no probative weight. The Board finds that service connection for a bilateral hip/abdominal disorder cannot be established as the Veteran does not have a current diagnosis of such during the pendency of his claim. Furthermore, the record does not contain a recent diagnosis of a bilateral hip/abdominal disorder prior to the Veteran's filing of a claim. See McClain, supra; Romanowsky, supra. While the Veteran has reported discomfort and pain related to his bilateral hips and abdomen, a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. For the foregoing reasons, the Board finds that service connection for a bilateral hip/abdominal disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a bilateral hip/abdominal disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs