Citation Nr: 1824488 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 14-30 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a bilateral hip disorder, to include as secondary to a back disorder. 3. Entitlement to service connection for a sleep disorder, to include as secondary to a back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1977 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran's back disorder was not caused by or related to active duty service. 2. The Veteran's hip disorder was not caused by or related to active duty service or service-connected disability. 3. Throughout the period on appeal, the Veteran does not have a diagnosis of a sleep disorder for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran asserts that his bilateral hip, sleep, and back disorders are related to active service. 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 (2012). 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, including arthritis, are subject to presumptive service connection if manifest 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; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Additionally, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the Board determines that service connection is not warranted for any of the disorders on appeal. The evidence does not reflect a current diagnosis related to a sleep disorder at any time during the period on appeal. Moreover, there is no competent evidence which indicates that the Veteran has a sleep disorder that is related to his military service or a service-connected disability. Thus, entitlement to service connection for sleep disorder is not warranted. Next, the Veteran's service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to a back or hip disorder. Specifically, the Veteran denied any back or hip symptoms, including pain, in his July 1983 examination. He also stated that he was "in good health." The post-service medical evidence indicates that the first evidence of a back or hip disorder was in approximately 2010-2011 - after the Veteran was diagnosed with degenerative joint disease in his back with radiating hip pain. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for arthritis is not warranted because his back disorder did not manifested to a degree of 10 percent or more within a year of separation from active service. See 38 C.F.R. § 3.307(a). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of a back and hip disorder since service. In this regard, while the Veteran is not competent to make a diagnosis related to these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau, 492 F.3d at 1376; See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gaps in treatment for his disorders weigh against the Veteran's claims. Further, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Here, the Veteran's reported history of back and hip pain his July 1983 in-service examination, November 1986 VA examination, and November 2011 VA treatment evaluation are inconsistent with his current assertions. Lastly, the Board notes that the Veteran filed a claim for VA benefits over 20 years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims, weighs heavily against his credibility of continuity of symptomatology. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's disorders to active duty, despite his contentions to the contrary. In this case, the Board places significant value on the opinions of the VA examiner who evaluated the Veteran's back disorder in June 2014. Specifically, the examiner opined that the Veteran's back disability was not related to service because the Veteran did not have any injury to his back during service. Moreover, he did not report any back complaints until 2011. As such, there is no evidence to establish a medical nexus between service and the Veteran's current back disorder. The Veteran does not have a currently diagnosed hip disorder. Further, while the Veteran complained of hip pain, the Veteran's VA and private treatment records, including a June 2014 VA examination, do not reflect an actual hip disability. Instead, the medical records, including from December 2011, January 2012, May 2012, and February 2013 indicate that the Veteran's hip pain was caused by his back disorder, and was not a separate hip disorder. Of note, his medical providers stated that his back disorder caused radicular pain that radiated down to his hips. As such, the evidence indicates the Veteran's hip pain and related symptomatology is a symptom of his back disorder. Similarly, the Board notes that the June 2014 VA examiner opined that his hip pain was caused radiculopathy from his back disorder, and therefore, was not related to active duty service. In arriving at this conclusion, the Board acknowledges that prior to the time on appeal, there is some evidence to indicate that the Veteran had a past history of a "small osteophyte formation" in his hips. While this finding was reflected in the medical records, the October 2011 medical provider reported that there was nevertheless, no "significant bony or joint abnormality." Further, a June 2014 imaging study performed by the VA examiner during the period on appeal reflects there were "no osteophyte formations." The Veteran's December 2011 treatment records reflect that the Veteran was a paratrooper in the military and such trauma "could contribute to the present symptoms/findings." However, the Board finds that these opinions were merely conclusory without any support, not based upon a review of the Veteran's service records, and not stated to the requisite degree of certainty. As such, the Board finds the detailed opinions of the June 2014 VA examiner to be more probative. The Board has also considered the statements made by the Veteran relating his disorders to active service. 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 provide testimony regarding the diagnosis and etiology of the disorders on appeal. See Jandreau, 492 F.3d at 1377, n.4. Specifically, while the Veteran can provide competent testimony regarding symptoms, these are not disorders that can be diagnosed by their unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Id. at 1376-77. Thus, to the extent that the Veteran believes that his disorders are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the service connection claims, and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a sleep disorder is denied. Service connection for a bilateral hip disorder is denied. Service connection for a back disorder is denied. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs