Citation Nr: 1805493 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-21 006A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a lower back disorder, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1993 to March 1995. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2011, the Veteran testified at a hearing before a Decision Review Officer. A transcript of the hearing is associated with the record. At this hearing, the Veteran withdrew her claim for service connection for missing teeth 23, 24, 25, and 26. As this was prior to the issuance of a Statement of the Case and the filing of the Veteran's VA Form 9, this issue is not on appeal. FINDINGS OF FACT 1. The competent evidence of record does not show that the Veteran's current lower back disorder was noted during active service or is related to service or to a service-connected disability. 2. The competent evidence of record does not show that the Veteran's current left hip disability was noted during active service or is related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim subject to this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Service Connection The Veteran is seeking service connection for a low back disability and a left hip disability, to include as secondary to service connected conditions. She contends that both disabilities are caused or aggravated by her service-connected mild conformational and ligamentous variant, status post left patellar fracture. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014). Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112 , 1113 (2017); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases, not including scoliosis, that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2016). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Veteran contends that her service connected left knee disorder caused her low back disorder and hip disorder. However, after reviewing all evidence of record, the Board determines that service connection is not warranted for a back disorder or a hip disorder because the evidence does not show that either disability is related to or had its onset during the Veteran's service or within a year after separation, nor is it related to any of her service connected disabilities. First, the Veteran is not precluded from establishing service connection for her low back disorder or left hip disorder with proof of actual direct causation as due to active duty service. However, service connection is not warranted on this basis. The Veteran's service treatment records do not reflect treatment in service for a back disorder or left hip disorder. While a record from 1994 indicates mid-abdominal pain radiating to the Veteran's back, the record makes clear that this pain is not due to a musculoskeletal disorder. Further, a discharge report dated February 1995, near the end of the Veteran's service, does not show a low back or hip disorder. The first indication of a treatment for a back or a hip disorder since separation was within a year or two after May 1996. This would place the Veteran's first indication of a disorder several years after the Veteran's separation in March 1995. As part of this claim, the Board recognizes the Veteran's statements regarding her history of symptoms. Specifically, the Veteran states in hearing testimony that these conditions onset several years after May 1996. Further, the earliest record documenting treatment for the Veteran's back and left hip is from April 2011. Therefore, with regard to both current disabilities on appeal, continuity is not established based on either the competent clinical evidence or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between the Veteran's current disability and her military service. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's disorders to active duty. There is no medical nexus between the Veteran's current lower back symptoms and either her active duty or her service connected disabilities. Direct service connection is not available in this case because the Veteran's service treatment records make no mention of treatment for a back disorder in service. As such, this discussion will focus primarily on service connection secondary to the Veteran's service connected disorders. In this regard, the Veteran's March 2010 VA examiner examined the Veteran in clinic and diagnosed her with mild scoliosis of the thoracic spine. He noted that the Veteran's back symptoms were from scoliosis, which is more likely to be congenital in origin, rather than due to active service or a service-connected condition. While the examiner did not expressly address whether the Veteran's back disorder could have been aggravated by her service or service connected disabilities, the examiner was clear that the Veteran's back disorder is a result of her scoliosis, which again, is most likely congenital. From this, the Board may infer that the Veteran's left knee disability was immaterial to the onset of her back symptoms. Similarly, the Board finds that the weight of the competent evidence does not attribute the Veteran's left hip disorder to active duty, despite her contentions to the contrary. There is no medical nexus between the Veteran's active duty and current left hip disorder. Specifically, while the Veteran's examiner diagnosed her with soft tissue translation over the greater trochanter, no symptoms of a hip disorder were noted in service, and the Veteran has not asserted that her hip disorder is the result of any injury in service. As for secondary service connection, the Veteran's March 2010 VA examiner stated that her left hip disorder is not related to her left knee disorder. Rather, it is a condition inherent to the Veteran's hip. While the examiner did not expressly address whether the Veteran's left hip disorder could have been aggravated by her service or service connected disabilities, the examiner was clear that the Veteran's left hip disorder is more likely inherent to her hip rather caused by her left knee disorder. Again, the Board may infer from this that the Veteran's left knee disability was immaterial to the onset of her hip symptoms. The Board has considered the Veteran's assertions that her back disorder and left hip disorder were caused by a service connected left knee disability. Specifically, the Veteran submitted a statement in May 1995 indicating back pain and relating it to her left knee pain. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of orthopedic or musculoskeletal phenomena. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. In this case, the Veteran's assertion that her low back pain is caused or aggravated by her service-connected left knee disorder is outweighed by the VA examiner's opinion that it is more likely related to congenital scoliosis. Therefore, the Veteran's lay statements that her current disorders are related to her active service are found to lack competency. In sum, the most probative evidence of record shows no evidence linking the Veteran's back disorder or left hip disorder to any event, injury, or disease incurred in service, either through direct or secondary service connection. Based on the evidence of record, the Veteran's claim must be denied. ORDER Service connection for a low back disability, to include as secondary to a service-connected left knee disability is denied. Service connection for a left hip disability, to include as secondary to a service connected left knee disability is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs