Citation Nr: 21013753 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 11-15 729 DATE: March 10, 2021 ORDER Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for residuals of a pelvic bone stress reaction, claimed as pelvic bone fracture, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the current right hip disability is attributable to service. 2. Resolving reasonable doubt in the Veteran’s favor, the current low back disability is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard and the Army Reserves, including a period of active duty for training (ACDUTRA) from July 1979 to February 1980. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from July and December 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These matters were previously remanded by the Board for development in June 2014, April 2017, December 2018, and August 2020 and have been returned to the Board for appellate review. Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (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 the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Secondary service connection may be granted 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). In order to establish service connection for a disability on a secondary basis, there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may 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 supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). (where the Court held that a medical opinion is not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). The Court has generally held that a layperson is incapable of opining on matters requiring medical knowledge. Laypersons have also been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The final step of this inquiry requires the Board to weigh the probative value of evidence determined to be competent and credible considering the entirety of the record. In weighing the probative value of evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right hip disability is granted. The first and second elements of service connection are met and not in dispute. The Veteran has a current right hip strain disability. See April 2020 VA examination report. Further, a service treatment records (STR) indicated the Veteran had a fall and “R” pelvis was noted under examination requested. A September 1979 reflected hip pain. The Veteran has reported falling on an obstacle course in service and hurting her hip. See April 2009 VA examination report. As such the crux of the case centers on whether the Veteran’s right hip disability is related to service. In this regard, the Board notes the negative VA clinician opinions of record; however, by contrast, in a February 2015 correspondences, the Veteran’s private doctor, Dr. G.T. opined that the Veteran’s hip condition is more likely by service when she injured herself on an obstacle course in service. He explained that she has experienced her current hip symptoms since 1979. In a June 2017 correspondence, the Veteran’s private doctor, Dr. G.T. opined that the Veteran’s hip condition is related to her military service. He based this opinion on review of the record and the Veteran’s symptoms. In a June 2020 private nexus opinion, Dr. R.R. attributed the Veteran’s current hip condition to her time in active duty service. Affording the Veteran the benefit of reasonable doubt, the Board finds that the competent and credible evidence of record establishes a link between the Veteran’s right hip disability and her military service. Accordingly, the Board grants service connection for a right hip disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a low back disability is granted. The first and second elements of service connection are met and not in dispute. The Veteran has a current lumbosacral strain disability. See April 2020 VA examination report. Further, the Veteran has reported sustaining a back injury in service and experiencing back pain since service. See April 2020 VA examination report. As such the crux of the case centers on whether the Veteran’s back disability is related to service. In this regard, the Board notes the negative VA clinician opinions of record; however, by contrast, in November 2014 and February 2015 correspondences, the Veteran’s private doctor, Dr. G.T. opined that the Veteran’s back condition is more likely by service when she injured herself on an obstacle course in service. He explained that she has experienced her current back symptoms since 1979. In a June 2017 correspondence, the Veteran’s private doctor, Dr. G.T. opined that the Veteran’s back condition is related to her military service. He based this opinion on review of the record and the Veteran’s symptoms. In a June 2020 private nexus opinion, Dr. R.R. attributed the Veteran’s current low back condition and hip condition to her time in active duty service. Affording the Veteran the benefit of reasonable doubt, the Board finds that the competent and credible evidence of record establishes a link between the Veteran’s back disability and her military service. Accordingly, the Board grants service connection for a low back disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for residuals of a pelvic bone stress reaction, claimed as pelvic bone fracture, is remanded. As noted in the August 2020 Board remand, the Veteran has reported pelvic bone fracture and ongoing pelvis pain. Notably, as the Board has granted service connection for a right hip disability in this Decision, the Board finds remand of the claim for service connection for residuals of pelvic bone stress reaction is needed in order to obtain an etiology opinion as to whether the condition is secondary to the Veteran’s service-connected right hip disability. The matter is REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any residuals of pelvic bone disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all residuals of pelvic bone disabilities present during the appeal period. A complete explanation should be provided. (b) For each pelvic bone disability diagnosed, is it at least as likely as not (50 percent or greater probability) that the disability was either caused or aggravated (temporary or permanent) by the Veteran’s service-connected right hip disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. Rationale for any requested opinion shall be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (CONTINUED ON NEXT PAGE) 3. After completing the above action and any other necessary development, the claim must be readjudicated. If any claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. Schick Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.