Citation Nr: 1209683 Decision Date: 03/14/12 Archive Date: 03/28/12 DOCKET NO. 07-16 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for dysplasia of the left hip. 2. Entitlement to service connection for osteoarthritis of the left hip, to include as due to dysplasia. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active naval service from July 3, 1952, to July 23, 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in October 2008. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in January 2011, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). FINDINGS OF FACT 1. No abnormality of the Veteran's left hip was found on examination for entrance onto active duty. 2. Dysplasia of the left hip was present in service; the evidence does not clearly and unmistakably establish that the disorder did not increase in severity as a result of active duty. 3. Osteoarthritis of the left hip joint is etiologically related to the Veteran's left hip dysplasia. CONCLUSIONS OF LAW 1. Dysplasia of the left hip was incurred in active service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). 2. Osteoarthritis of the left hip is proximately due to or is the result of service-connected dysplasia of the left hip. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.310, 3.102 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter the Board notes the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate the claims herein decided. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active naval service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability medically shown to be proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). By "clear and unmistakable evidence" it is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). Congenital or developmental defects are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303 (c). VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin as long as the evidence as a whole establishes that the conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. It also has expressly stated that the terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The term "defects" is definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service treatment records reflect that the Veteran's lower extremities were clinically evaluated as normal during an examination performed at the time of his entrance onto active duty. Shortly thereafter, the Veteran began complaining of hip pain, and physical examination revealed limitation of all movement of the left hip. An X-ray study showed coxa plana, which was attributed to old and untreated Legg-Calvé-Perthes disease. The report of a Board of Medical Survey in July 1952 reflects that the final diagnosis was osteochondritis dissecans of the left hip and that the Medical Survey Board determined that the Veteran was unfit for service as a result of this condition. The Medical Survey Board also determined that the disability was not the proximate result of active service. At the October 2008 hearing, the Veteran testified that he has experienced chronic left hip pain since his separation from service. The Veteran was afforded VA examinations in January 2009, August 2009, and April 2011. Each time, the examiner has found that the Veteran's left hip disability preexisted service based upon the Veteran's reports of an injury in his youth. The examiners also opined that the Veteran's left hip disability was not aggravated by his service. The April 2011 VA examiner further found that the Veteran's osteoarthritis of the left hip is a result of his Legg-Calvé-Perthes disease. He stated that medical literature shows that Legg-Calve-Perthes disease naturally progresses to osteoarthritis in adults and it is considered a degenerative disease of the hip joint. Since the Veteran's left hip was found to be normal on the entrance examination, the presumption of soundness applies. The Veteran was diagnosed for and treated in service for osteochondritis dissecans of the left hip with X-rays strongly suggesting old, untreated Perthes disease. In order for that presumption to be rebutted, clear and unmistakable (obvious or manifest) evidence must demonstrate that the disorder existed before acceptance and enrollment and that it was not aggravated by service. 38 U.S.C.A. § 1111. Here, there is clear and unmistakable evidence that the Veteran's left hip dysplasia existed prior to service, but the evidence does not clearly and unmistakably establish that it was not aggravated by active duty. The Board acknowledges the VA medical opinions against the claim, but has not found the rationale supporting the opinions to be particularly persuasive. In addition, the record tends to suggest that this disability was aggravated by service. At the October 2008 hearing, the Veteran testified that the only residual of his pre-service left hip injury was a very minor limp and that this limp did not preclude his participation in activities such as sports. The Board has no reason to doubt the Veteran's credibility, particularly in light of the fact that his lower extremities were evaluated as normal prior to his entrance onto active duty. The Veteran also testified and reported to his VA health care providers that although his left hip was relatively asymptomatic prior to service, he experienced chronic pain in the left hip during and after service. In sum, after reviewing all of the pertinent evidence of record, the Board is unable to conclude that the Veteran's dysplasia of the left hip clearly and unmistakably was not aggravated by active service. Accordingly, the presumption of soundness has not been rebutted, and the Veteran is entitled to service connection for this disability. In addition, the April 2011 VA examination report shows that the Veteran's osteoarthritis of the left hip was caused by his dysplasia due to Legg-Calvé-Perthes syndrome. Thus, service connection for osteoarthritis of the left hip is also warranted. ORDER Service connection for dysplasia of the left hip is granted. Service connection for osteoarthritis of the left hip is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs