Citation Nr: 21014959 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-13 262 DATE: March 16, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to October 2004. This appeal to the Board of Veterans’ Appeals (Board) is from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this claim in January 2019 and January 2020 for further development, but still more development is required, so the Board is again remanding this claim. Entitlement to service connection for a right hip disability is again remanded. The Board’s most recent, January 2020, remand was to obtain a supplemental medical opinion concerning the etiology of the Veteran’s right hip disability, both in terms of whether directly attributable to his service or, alternatively, secondarily related to his service – meaning caused or aggravated by a service-connected disability.   In September 2020, to this end, a VA examiner provided an unfavorable nexus opinion. The rationale was that, although the initial claim was that the right hip condition began in 1999 (i.e., during the Veteran’s service), at his 2004 evaluation for separation from service he did not report any shoulder and/or impaired use of his arms, legs, hands or feet. Further concerning this, the examiner noted the Veteran is claiming a right hip condition as secondary to his right shoulder acromioclavicular (AC) joint separation and reported pain in his right lower back and hip that followed the same pattern. But while the Veteran is claiming entitlement to service connection for his right hip disability partly on the premise it is secondary to his service-connected right shoulder disability, he is also claiming entitlement to service connection for his right hip disability on the additional premise that it was directly incurred during his service. Specifically, in a November 2016 written statement, he described an incident during an Army Physical Fitness Test in 1999 when he injured his right hip, and this hip was “popped back into place with a two [to] three month profile.” However, the September 2020 VA examiner did not consider this assertion in terms of whether it is the reason, instead, the Veteran now has right hip disability. Rather, the VA examiner’s conclusion is improperly predicated on a lack of documentation in the medical records (e.g., service treatment records (STRs) and post-service treatment records prior to initial diagnosis). In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases, as here, where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where, as here, the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence such as that proffered by the Veteran and his comrades is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings to rely on this negative inference (see Kahana): 1. First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. 2. If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. So, it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, 451 F.3d at 1336. The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). That said, when assessing whether a disability has persisted since service, it is continuity of symptoms, not continuity of treatment for them (chronicity of care), which is the essence of 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Here, while the Veteran’s STRs admittedly do not mention any complaints referable to his right hip or show treatment or diagnosis of this disability during his service, there are lay assertions of record regarding his right hip symptoms and how they relate to his service. The September 2020 VA medical opinion consequently is inadequate since the examiner did not address or consider the Veteran’s competent lay statements regarding the history of this claimed disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). Furthermore, the September 2020 VA examiner noted “[i]t is the opinion of this provider that the [V]eteran’s claimed right hip condition is not substantiated during the pendency of the appeal. There are inconsistent complaints from the veteran on all exams and no findings to warrant a diagnosis of a hip condition on the veteran’s most recent exam.” In this regard, however, the Board emphasizes that the definition of current disability for VA compensation purposes is broad and includes intermittent manifestations. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McLain on a recent diagnosis even predating the filing of a claim). The Federal Circuit Court also has held that mere pain, alone, even absent an underlying diagnosis, can constitute a current disability if it causes functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, the Board already found in the January 2020 remand (i.e., conceded) that the requirement of a current disability is satisfied for the purpose of this appeal. Regarding same, the Veteran already has received a diagnosis of right hip strain during May 2013 and October 2016 VA examinations. Moreover, his VA treatment records from June 2014 list a diagnosis of right hip arthralgia and note symptoms of pain in his right hip that is increased by movement and activities – including walking and standing. See Saunders, 886 F.3d at 1365. Therefore, resolution of his appeal of this claim turns, instead, on whether there also is the required attribution of his right hip disability to his service, either, as mentioned, directly or secondarily by way of his service-connected right shoulder disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). And, since the Board still needs more medical comment to assist in making this critical determination, this claim is again REMANDED for the following still additional development and consideration: 1. Obtain any outstanding treatment records relevant to this claim, whether from VA or private providers. Document all efforts to obtain records identified and appropriately notify the Veteran if unable to obtain records he identifies with the necessary amount of information. See 38 C.F.R. § 3.159(c) and (e).   2. After receiving all additional treatment or other relevant records, forward the Veteran’s claims file to a VA examiner with the appropriate expertise for still more medical comment (another addendum opinion) regarding whether there is a relationship or correlation between his claimed current right hip disability and his service. *Schedule the Veteran for a VA examination if deemed necessary to provide this additional comment, meaning if it cannot be provided, instead, just by having a clinician review the relevant evidence in the file. Whatever means of providing this requested additional medical comment, still more opinion is needed concerning whether it is at least as likely as not (50 percent or greater probability) that a) the Veteran’s current right hip disability originated during his service from March 1999 to October 2004, or b) if involving arthritis, initially manifested within a year of his discharge from service – so by October 2005, or c) is otherwise related or attributable to his service – including especially to trauma he alleges sustaining to this hip during an Army Physical Fitness Test in 1999 when he injured his right hip, and this hip reportedly was “popped back into place with a two [to] three month profile”, or d) was caused OR is aggravated by a service-connected disability, especially by his right shoulder disability. In making these critical determinations, the examiner is advised that, for VA compensation purposes, a current disability exists when there is pain or other symptoms causing functional impairment of earning capacity, even absent an underlying diagnosis, and the Board already has conceded this threshold minimum requirement of current disability is met. Thus, more importantly, the examiner is asked to comment more comprehensively on whether this current right hip disability is attributable to the Veteran’s service. In so deciding, the examiner must fully consider and specifically address the Veteran’s lay assertions regarding this posited association between his right hip symptoms and disability and his claimed right hip injury in service during the physical fitness test in 1999. *If, as the prior examiner intimated, the lack of documentation in the Veteran’s STRs is significant, there must be more explanation of why it is reasonable to have this expectation. In other words, this cannot be the sole reason for disassociating the now claimed disability from the Veteran’s service – although, again, it is permissible to consider this as one relevant factor, just not instead the only or exclusive factor. Thus, rationale for the opinion is essential, irrespective of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.