Citation Nr: 1806283 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-14 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from May 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Boise, Idaho. The case was remanded in April 2016 and September 2017 for evidentiary development. All actions ordered by the remands have been accomplished. In addition to the matters noted above, the Veteran has filed a petition to reopen a previously denied claim for service connection for a bilateral eye condition. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is taking action on this issue. The issue of entitlement to a rating in excess of 20 percent for a lumbar strain disability has been raised by the record in a November 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran's bilateral hip disability was not caused or aggravated by his service-connected lumbar strain disability. 2. The Veteran's cervical spine disability was not incurred in service; did not demonstrate the onset of during the first year after service; and was not caused or aggravated by his service-connected lumbar strain disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran 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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, also diagnosed as degenerative disc or joint disease, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Bilateral hips The Veteran asserts that his service-connected lumbar spine disorder caused or worsened his bilateral hip disorder - a theory known as "secondary service connection." Since the Veteran does not allege direct service connection, nor does the record raise this theory of entitlement, the Board will restrict its analysis to secondary service connection only. March 2011x-rays revealed mild degenerative changes of the pelvis and hips. At the January 2010 VA medical examination for his lumbar strain disability, the Veteran reported he did not have any leg symptoms related to his back disability. At the March 2011 VA medical examination, the Veteran reported difficulty sitting for prolonged periods of time due to pain in his back and hips. He reported stiffness, weakness and daily flare-ups. The examiner diagnosed the Veteran with mild degenerative changes of the pelvis and hips. The examiner opined that he was "unable to connect the mild degenerative changes and hip pain to [the Veteran's] service-connected lumbosacral spine strain and degenerative changes." He noted the Veteran's age as the likely cause of his bilateral hip disability. At the November 2011 VA medical examination for his lumbar strain disability, the Veteran's hips demonstrated normal muscle strength with no evidence of radiculopathy. At the June 2016 VA medical examination, the Veteran reported daily pain, weakness and fatigue after prolonged use, and daily flare-ups. The examiner opined the Veteran's disability is "age-appropriate" and that there is "no medical basis" for linking the Veteran's bilateral hip disability to his lumbar spine disability. In October 2017, the same June 2016 examiner opined that there was "no medical evidence" that the Veteran's lumbar strain disability was aggravating, beyond the natural progression, the Veteran's bilateral hip disability. The preponderance of the evidence is against service connection for a bilateral hip disability. The probative medical evidence does not indicate that the Veteran's bilateral hip disability was caused or aggravated by his service-connected lumbar strain disability. The Veteran has continuously asserted throughout the appeal that his current bilateral hip disability is a result of his service-connected lumbar strain disability. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current bilateral hip disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Degenerative arthritis requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his lumbar strain disability. Since the Veteran's bilateral hip disability was not caused or aggravated by his service-connected lumbar strain disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Cervical spine March 2010 x-rays revealed mild degenerative disc disease of the cervical spine. The Veteran's May 1974 report of medical history at induction indicates he denied arthritis; bone, joint or other deformity; and recurrent back pain. His clinical spine and musculoskeletal evaluation was normal. In January 1975, the Veteran was injured on the flight deck and reported neck, back and arm pain. He was assessed with a muscle spasm in his right trapezius (upper back/neck) with good muscle strength and no neurological deficit. He was given valium, a neck collar, and assigned light duty. His May 1977 clinical evaluation was normal. There are no other complaints, diagnoses or treatments for a neck condition in service. At the March 2010 orthopedic VA medical examination, the Veteran reported a diagnosis of whiplash after a 2008 motor vehicle accident (MVA), and that since the MVA his neck demonstrated stiffness with occasional pain. He also reported painful flare-ups, but denied radicular symptoms. The examiner reviewed x-rays and diagnosed the Veteran with mild degenerative disc disease of the C4-C5. At the June 2010 VA medical examination, the Veteran reported intermittent pain with occasional flare-ups. The examiner reviewed the March 2010 x-rays, and noted tenderness on palpitation but with no muscle spasm, and no radicular deficits. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine that was "age-related" and was "less likely than not" related to the in-service injury. At the June 2016 VA medical examination, the Veteran reported constant pain since service. However, he also reported he had three MVAs since service, the first of which was in 1994, and the latest one in 2008, when he received the diagnosis of degenerative changes in his neck. He reported stiffness, limited range of motion, occasional numbness and occasional flare-ups. The examiner opined the Veteran's neck disability was less likely than not related to his in-service injury, noting that the Veteran's three MVAs and his job as a carpenter post-service were contributing factors to the development of degenerative disc disease. He also opined that the Veteran's neck disability was not caused by the Veteran's lumbar strain disability. In October 2017, the same examiner confirmed the Veteran's lumbar strain disability did not aggravate the Veteran's neck disability. The preponderance of the evidence is against service connection for a neck disability. The probative medical evidence indicates the Veteran's current neck disability was not incurred in service, but rather is related to the Veteran's post-service occupation and injuries. In addition, there is no probative medical evidence that the Veteran's service-connected lumbar strain disability caused or aggravated the Veteran's neck disability beyond the normal progression of the disease. The Veteran has continuously asserted throughout the appeal that his current neck disability is a result of in-service injury. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current neck diagnosis and its relationship to his in-service injury or to his service-connected lumbar strain disability. Since the Veteran's current neck disability was not related to service, was not diagnosed within the first year after service, and was not caused or aggravated by his service-connected lumbar strain disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral hip disability is denied. Service connection for a cervical spine disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs