Citation Nr: 1808117 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-30 997A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected left hip disability. 2. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to a service-connected disability. 3. Entitlement to higher staged ratings for lumbar strain, currently rated 10 percent prior to June 28, 2013, and 20 percent from June 28, 2013. 4. Entitlement to an initial rating in excess of 10 percent for left hip strain. 5. Entitlement to an initial rating in excess of 10 percent for left thigh impingement. 6. Entitlement to a compensable initial rating for residuals of a simple kidney cyst. 7. Entitlement to an initial evaluation in excess of 70 percent for major depressive disorder with mood congruent psychotic features. 8. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michele Mansmann, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from October 1959 to May 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2011, October 2012, October 2013, September 2015, and November 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Philadelphia, Pennsylvania. The July 2011 rating decision denied entitlement to service connection for sciatic nerve neuropathy. An October 2012 rating decision effectuated a September 2012 Board decision, which granted service connection for lumbar strain, a simple kidney cyst and for left hip strain. The October 2012 rating decision assigned a 10 percent evaluation for the Veteran's lumbar strain effective June 25, 2003, a noncompensable evaluation for his simple kidney cyst effective May 11, 2006 and a noncompensable evaluation for his left hip strain effective June 25, 2003. An October 2013 rating decision, in pertinent part, granted separate service connection for left thigh impairment, based on limitation of adduction of the thigh, due to service-connected left hip disability, and assigned a 10 percent initial evaluation, effective from June 28, 2013. A September 2015 rating decision, in pertinent part, denied entitlement to service connection for a right hip disability. Finally, a November 2016 rating decision granted service connection for service connection for major depressive disorder with mood congruent psychotic features and assigned an evaluation of 70 percent effective January 9, 2014. During the pendency of the appeals for higher initial ratings for the Veteran's lumbar strain and left hip strain, an October 2013 rating decision granted a 20 percent staged initial rating for lumbar strain effective June 28, 2013, and a 10 percent staged initial evaluation for left hip strain, effective June 25, 2003, the date that service connection was granted. Because these higher evaluations do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's appeals remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). The October 2013 rating decision, also in pertinent part, granted service connection for left thigh meralgia paresthetica and assigned a noncompensable evaluation effective May 11, 2006, and the Veteran's then representative provided a February 2014 notice of disagreement. Thereafter, a January 2015 statement of the case was subsequently issued for entitlement to a compensable initial rating for left thigh meralgia paresthetica. However, the Veteran did not perfect an appeal thereafter with respect to this claim. Thus, the matter is not before the Board. See 38 C.F.R. § 20.200, 20.202, 20.302(b) (2017). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. During the pendency of his appeals for higher initial ratings for his left hip, left thigh and major depressive disorder, the Veteran, in January 2017 and January 2018 applications for TDIU, asserted he was unemployed in part, due to these disabilities. Thus, although entitlement to a TDIU was most recently denied in a, as of yet unappealed, November 2017 rating decision, the Board concludes that the Court's holding in Rice is applicable, and the TDIU claim is properly before the Board, and the issue has been listed on the title page. In May 2017, Veteran testified at a Board hearing before the undersigned Veterans Law Judge as to all issues with the exception of the issues of entitlement to an initial evaluation in excess of 70 percent for major depression disorder with mood congruent psychotic features and entitlement to a TDIU. The hearing transcript is associated with the claims file and reflects the record was held open for 60 days from the date of the hearing to allow his representative to have the opportunity to submit a statement on his behalf. In November 2017, the Veteran submitted a private mental disorder disability benefits questionnaire dated in October 2017, which he did not waive review thereof, which is relevant to his claim for an initial evaluation in excess of 70 percent major depression disorder with mood congruent psychotic features. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the agency of original jurisdiction (AOJ). See VBA Fast Letter 14-02. Here, the Veteran's substantive appeal for his claim regarding the initial evaluation for his major depression disorder with mood congruent psychotic features appeal was filed after February 2, 2013. Moreover, the Board interprets such exception as applying only to evidence submitted by the Veteran, as is the case here. However, other evidence has also been associated with the claims file. Specifically, since the December 2016 statement of the case, which addressed the issue of entitlement to service connection for a right hip disability, the claim which is decided herein, additional evidence has been associated with the claims file, consisting of VA treatment records most recently dated in September 2017 and a February 2017 hip and thigh conditions disability benefits questionnaire, all of which were developed by VA. In December 2017, in response November 2017 VA correspondence, the Veteran's representative advised that the Veteran wished to waive review of the February 2017 hip and thigh conditions disability benefits questionnaire by the AOJ, but further noted she had not supplied the disability benefit questionnaire and had not received this information. 38 C.F.R. § 20.1304 (c) (2017). Notably, however, she did not request a copy of such. In any event, the additional VA treatment records and the February 2017 hip and thigh conditions disability benefits questionnaire did not address the Veteran's right hip disability decided herein. Furthermore, as the Veteran's remaining claims must be remanded for additional development, the AOJ will have an opportunity to consider the additional evidence in the first instance when the claims are readjudicated after the specified development is completed. 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) (West 2012). The issue of entitlement to service connection for a head injury has been raised by the record in July 2003 and July 2013 statements from the Veteran, entitlement to service connection for hypertension has been raised by the record in a November 2012 statement from the Veteran's then representative, and entitlement to service connection for left knee injury has been raised by the record by a July 2013 statement from the Veteran, but they have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). The issues entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to a service-connected disability, entitlement to higher initial ratings for lumbar strain, entitlement to an initial rating in excess of 10 percent for left hip strain, entitlement to an initial rating in excess of 10 percent for left thigh impingement, entitlement to a compensable initial evaluation for simple kidney cyst, entitlement to an initial evaluation in excess of 70 percent for major depressive disorder with mood congruent psychotic features and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The evidence of record does not objectively demonstrate that the Veteran has a current right hip disability. CONCLUSION OF LAW The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the claimant 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, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a) (West 2012); 38 C.F.R. § 3.303(a). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). Furthermore, pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Service connection may be granted for a disability that is proximately due to, or aggravated (worsened beyond its natural progression) by a service-connected disease or injury. 38 C.F.R. § 3.310 (a), (b) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for a right hip disability, which in May 2017 testimony, he asserted was secondary to his service-connected left hip disability. In this case, the evidence of record does not contain any evidence of a chronic right hip disability at any time proximate to, or since, the claim. Specifically, a February 2016 VA treatment record reflected a complaint of general hip pain; however, the same record subsequently noted pain to internal rotation of the left hip, and no clinical findings were reported with respect to the right hip. Furthermore, and probatively, during the pendency of the claim, an October 2014 hip and thigh conditions disability benefits questionnaire examiner found no symptoms of dysfunction were demonstrated upon present examination of the right hip. The October 2014 VA examiner reported that the Veteran had no complaints, symptoms, or dysfunction, of the right hip upon present examination. The October 2014 VA examiner, after review of the record, including VA treatment records, found the Veteran did not have a diagnosis related to a right hip disability. Furthermore, in May 2017 testimony, the Veteran did not recall if he had been diagnosed with a disability of the right hip nor could he recall if anyone had ever told him he had a disability of the right hip. The Board recognizes the Veteran's belief that he has a right hip disability as such is inherently part of filing a claim. However, the most probative evidence does not reflect that a diagnosis has been provided with respect to the Veteran's right hip, including as to any symptoms that may exist such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, (i.e. current diagnosis) the Veteran is not considered competent to provide a clinical diagnosis with regard to the right hip. The Board highlights that competent statements are limited to that which the Veteran has actually observed and is within the realm of his personal knowledge; such knowledge comes to the Veteran through use of him senses - that which is heard, felt, seen, smelled or tasted. See Layno v. Brown, 6 Vet. App. 465 (1994). It is within Veteran's realm of personal knowledge as to whether he has experienced symptoms of his right hip. It is not shown, however, that the Veteran possesses the medical expertise necessary to provide a probative opinion on a complex medical matter such as a diagnosis related to a right hip disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In contrast, the October 2014 VA hip and thigh conditions examiner has medical training and knowledge and did not provide a diagnosis related to the Veteran's right hip, even with consideration of the entire evidence of record. Similarly, the Veteran's VA treatment records also do not contain a diagnosis related to his right hip. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran currently has a right hip disability. As such, service connection for a right hip disability is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability and in absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to a right hip disability, and thus, further discussion of the in-service incurrence or nexus elements is not necessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim for a right hip disability, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a right hip disability. ORDER Entitlement to service connection for a right hip disability, to include as secondary to service-connected left hip disability, is denied. REMAND The Board finds that further development is required prior to adjudicating the remaining issues on appeal. See 38 C.F.R. § 19.9. As noted above, the Board finds that the issue of entitlement to a TDIU, most recently raised in a January 2018 application for benefits, has been raised as part of the Veteran's appeals for higher initial ratings for his left hip strain, left thigh impingement and major depressive disorder with mood congruent psychotic features. See Rice v. Shinseki, supra. Furthermore, a February 2015 back conditions disability benefits questionnaire found the Veteran's lumbar strain impacted the Veteran's ability to work. In this regard, any development deemed necessary by the AOJ regarding entitlement to a TDIU may have an impact on the complete picture of these service-connected disabilities and its effect on the Veteran's employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issues of entitlement to higher initial ratings for lumbar strain, entitlement to an initial rating in excess of 10 percent for left hip strain, entitlement to an initial rating in excess of 10 percent for left thigh impingement, and entitlement to an initial evaluation in excess of 70 percent for major depressive disorder with mood congruent psychotic features, will also be remanded. With respect to the appeal for a compensable initial rating for residuals of a simple kidney cyst, when the evidence indicates that a disability has worsened since the last VA examination and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board notes that the Veteran's most recent VA kidney conditions disability benefits questionnaire was obtained in February 2015 which addressed his service-connected residuals of a simple kidney cyst. However, in May 2017 testimony, the Veteran competently reported voiding dysfunction and/or obstructed voiding, which were noted in the February 2015 disability benefits questionnaire. See Layno, 6 Vet. App. at 469. Thus, as the severity of the Veteran's residuals of a simple kidney cyst may have worsened, a new VA examination for the claim is warranted. With respect to entitlement to service connection for neuropathy of the bilateral lower extremities, a September 2016 VA examiner reviewed the conflicting information with respect the Veteran's claimed sciatic nerve condition and opined the claimed sciatic nerve condition was not caused by or result of the Veteran's service-connected lumbar strain. The September 2016 VA examiner provided a rationale which noted in part, that he was unaware of any scientifically based medical literature that would provide evidence that a lumbar strain would predispose the development of a radiculopathy, to include a "sciatic nerve condition", nor the development of degenerative joint disease or degenerative joint disease. However, the September 2016 VA examiner did not address the claim for service connection for any identified neuropathy as aggravated by the service-connected lumbar strain. Furthermore, in May 2017 testimony the Veteran also asserted that such was as secondary to his service-connected left hip disability, thus, a remand is warranted to obtain an opinion also on this basis. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Finally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received treatment from the Salem VA Medical Center (VAMC), in September 2017. Thus, on remand, updated VA treatment records from the Salem VAMC, September 2017, should be obtained and associated with the claims file. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's updated VA treatment records, since September 2017, from the Salem VAMC, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Forward the claims file to an appropriate VA examiner for the purpose of obtaining an etiological opinion for any identified bilateral lower extremities neuropathy as secondary to a service-connected disability. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that identified bilateral lower extremity neuropathy, is proximately due to or chronically aggravated (permanently worsened beyond the natural progression) by his service-connected lumbar strain and/or left hip disabilities. If it is found that any identified bilateral lower extremity neuropathy is aggravated by a service-connected disability, the examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity is due to natural progression, the examiner should identify the degree of increase in severity due to natural progression. If it is determined that an opinion cannot be satisfactorily determined without another clinical examination of the Veteran, such examination should be scheduled with proper notification of such provided to the Veteran. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 3. Thereafter, schedule the Veteran for an appropriate VA examination to assess the nature and severity of his residuals of a simple kidney cyst. The complete record, including a copy of this remand, must be made available to the examiners and reviewed by the examiner in conjunction with the examination. All medically indicated tests should be conducted. The examiner should identify any associated symptoms, to include voiding dysfunction and/or obstructed voiding, and discuss their severity and functional impact, if any, on the Veteran. A complete rationale for all opinions expressed must be provided. 4. Thereafter, after undertaking any other development deemed appropriate, readjudicate the issues on appeal, to include entitlement to a TDIU, with consideration of whether the Veteran's TDIU claim should be referred to the Director of VA Compensation Service for extraschedular consideration for any portion of the appeal period when the schedular criteria was not met. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs