Citation Nr: 0602845	
Decision Date: 02/01/06    Archive Date: 02/15/06

DOCKET NO.  93-23 870	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to service connection for degenerative joint 
disease (DJD) of the left hip, to include left hip 
replacement.


REPRESENTATION

Appellant represented by:	Mark R. Lippman, Attorney 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert A. Leaf, Counsel


INTRODUCTION

The veteran had active military service from January 1955 to 
April 1977.

This long-standing claim comes before the Board of Veterans' 
Appeals (Board) on appeal from the St. Petersburg, Florida, 
Department of Veterans Affairs (VA) Regional Office (RO). The 
long procedural history of the case can be summarized as 
follows:

?	February 1989 - the RO denied the veteran's claim for a 
left hip disorder.  This decision becomes final one year 
later. 
?	October 1991 - RO denies the veteran's claim for a left 
hip disorder based on new and material evidence.  The 
veteran appeals this decision to the Board. 
?	December 1995 - the Board remands the new and material 
claim for further development. 
?	September 1998 - the Board finds that that no new and 
material evidence has been submitted and denies the 
claim to reopen. 
?	Veteran appeals to the United States Court of Appeals 
for Veterans Claims (Veterans Claims Court). 
?	March 1999 - the Veterans Claims Court vacates the 
Board's September 1998 decision and remands the claim 
due to a change in the new and material evidence law.  
See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 
?	September 1999 - the Board reopens the claim based on 
new and material evidence and remands the claim to the 
RO for further development, including a VA examination 
and medical opinion on aggravation. 
?	May 2000 - the Board denied the veteran's claim for 
entitlement to service connection on the merits.
?	Veteran appeals to the Veterans Claims Court. 
?	January 2001 - the Veterans Claims Court vacated the 
Board's May 2000 decision.
?	February 2002 - the Board seeks further development 
under the provisions of 38 C.F.R. § 19.9 for pre-service 
medical records and a VA examination. 
?	October 2002 - the Board again denies the veteran's 
claim. 
?	Veteran appeals to the Veterans Claims Court. 
?	July 2003 - the Veterans Claims Court vacates the 
Board's October 2002 decision for readjudication in 
light of the Veterans Claims Assistance Act (VCAA).
?	January 2004 - the Board remands the claim to the RO due 
to a change in the law no longer allowing the Board to 
issue VCAA letters under the provisions of 38 C.F.R. § 
19.9.  See Disabled American Veterans v. Secretary of 
Veterans Affairs, 234 F.3d 682 (Fed. Cir. 2003). 
?	February 2004 - VCAA letter issued to the veteran. 
?	February 2004 - the veteran indicates that he has no 
more evidence to submit.
?	September 2004 - the Board issued a decision again 
denying the claim.
?	Veteran appeals to the Veterans Claims Court.
?	March 2005 - the Court issued an order vacating the 
Board's decision and remanding the case to the Board for 
further development and readjudication in compliance 
with instructions in a joint motion for remand (JMR).


FINDINGS OF FACT

1.  No left hip abnormality was noted when the veteran was 
examined for service in 1955; service medical evidence shows 
no more than three complaints related to the veteran's left 
leg/hip throughout his 22 year career; no left hip disorder 
was noted when he was examined prior to his retirement from 
service in April 1977.

2.  Post-service, the veteran first sought treatment for left 
hip pain in 1985, 8 years after his retirement from service, 
and was diagnosed with DJD.  He underwent a hip replacement 
in 1988.

3.  While the veteran's own statements indicate that he was 
treated for a left hip disorder as a child and medical-
judgment evidence suggests that the veteran suffered from 
likely Legg-Perthes disease as a child, there is no clear and 
unmistakable evidence demonstrating that the veteran had a 
chronic left hip disorder before he entered military service 
in January 1955.

4.  The weight of the medical evidence establishes that the 
DJD of the veteran's left hip was first manifested more than 
one year after service and is not due to any injury suffered 
or disease contracted during military service.


CONCLUSIONS OF LAW

1.  A chronic left hip disorder did not clearly and 
unmistakably pre-existed service; the presumption of 
soundness is not rebutted and the veteran's claim is one for 
service connection based on incurrence in service.  38 
U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5103(a) (West 2002); 38 
C.F.R. §§ 3.303, 3.304 (2005); Wagner v. Principi, 370 F.3d 
1089, 1096 (2004).

2.  A chronic left hip disability was not incurred in 
military service and DJD of the left hip may not be presumed 
to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 
1111, 1112, 1113, 1131, 1154, 5103A, 5103(a) (West 2002); 
38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Procedural Due Process, Preliminary Duties to Notify and 
Assist.  The Board notes that on November 9, 2000, the 
Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 
U.S.C.A. § 5100 et seq.) became law. Regulations implementing 
the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a).  The veteran was notified of the VCAA as it 
applies to his present appeal by correspondence dated in 
February 2004.

The Board finds that any defect with respect to the timing of 
the VCAA notice requirement was harmless error.  While the 
notice provided to the veteran in February 2004 was not given 
prior to the first AOJ adjudication of the claim, the notice 
complied with the requirements of 38 U.S.C. § 5103(a) and 38 
C.F.R. § 3.159(b).  The issue on appeal was re-adjudicated 
and a supplemental statement of the case was provided to the 
veteran in June 2004.  The veteran has been provided every 
opportunity to submit evidence and argument in support of his 
claim, and to respond to VA notices.

The February 2004 VCAA notice letter provided to the veteran 
generally informed him of the evidence not of record that was 
necessary to substantiate his claim and identified which 
parties were expected to provide such evidence.  The veteran 
was notified of the need to give to VA any evidence 
pertaining to his claim.  In addition, 38 C.F.R. § 
3.159(b)(1) was cited in the June 2004 supplemental statement 
of the case.  Moreover, he was informed by letters dated in 
March 2002 and June 2002 that the claim was undergoing 
additional development and of his due process rights.  In 
light of the actual notice provided, the Board finds that any 
content deficiency in the February 2004 notice letter was 
non-prejudicial error.

All the VCAA requires is that the duty to notify be 
satisfied, and that claimants are given the opportunity to 
submit information and evidence in support of their claims.  
Once this has been accomplished, all due process concerns 
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 
C.F.R. § 20.1102 (harmless error).  Here, because each of the 
content requirements of a VCAA notice has been fully 
satisfied, any error in not providing a single notice to the 
veteran covering all content requirements is harmless error.

The revised VCAA duty to assist requires that VA make 
reasonable efforts to assist the claimant in obtaining 
evidence necessary to substantiate a claim.  See 38 C.F.R. § 
3.159.  In this case, the veteran's service medical records 
and all identified and authorized post-service medical 
records relevant to the issue on appeal have been requested 
or obtained.  In addition, he submitted two private medical 
opinions in support his claim, which have been carefully 
considered by the Board.

In claims for disability compensation the VCAA duty to assist 
requires VA provide medical examinations or obtain medical 
opinions when necessary for an adequate decision.  The Board 
notes that specific VA medical opinions pertinent to the 
issue on appeal were obtained in July 1996, October 1999, and 
May 2002.  The available medical evidence is sufficient for 
adequate determinations.  Therefore, the Board finds the duty 
to assist and duty to notify provisions of the VCAA have been 
fulfilled.

Legal Criteria.  Under the relevant 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.A. §§ 1110, 1131 (West 2002).  If a 
chronic disease is shown in service, subsequent 
manifestations of the same chronic disease at any later date, 
however remote, may be service connected, unless clearly 
attributable to intercurrent causes. 38 C.F.R. § 3.303(b) 
(2005).  However, continuity of symptoms is required where 
the condition in service is not, in fact, chronic or where 
diagnosis of chronicity may be legitimately questioned.  38 
C.F.R. § 3.303(b) (2005).

Next, service connection may also be granted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 
C.F.R. § 3.303(d) (2005).

In addition, where a veteran served ninety days or more 
during a period of war or during peacetime after December 31, 
1946, and arthritis becomes manifest to a degree of 10 
percent within one year of the date of termination of 
service, such disease shall be presumed to have been incurred 
in service, even though there is no evidence of such disease 
during the period of service.  38 U.S.C.A. §§ 1101, 1112, 
1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005)

Every veteran shall be taken 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 evidence demonstrates that the 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).  

To rebut the presumption of soundness, VA must find clear and 
unmistakable evidence of both a preexisting condition and a 
lack of in-service aggravation to overcome the statutory 
presumption of soundness for wartime service.  VAOPGCPREC 3-
2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 
1089, 1096 (Fed.Cir.2004); Joyce v. Nicholson, 19 Vet. App. 
36, 40 (2005); Cotant v. Principi, 17 Vet. App. 116, 123-30 
(2003).

The word "unmistakable" means that an item cannot be 
misinterpreted and misunderstood, i.e., it is undebatable.  
See WEBSTER'S NEW WORLD DICTIONARY 1461 3rd Coll. ed.1988); 
cf. Crippen v. Brown, 9 Vet. App. 412, 418 (1996) (stating 
that "clear and unmistakable error" means an error that is 
undebatable); Russell v. Principi, 3 Vet. App. 310 (1992) (en 
banc) ("The words 'clear and unmistakable error' are self-
defining.  They are errors that are undebatable, so that it 
can be said that reasonable minds could only conclude that 
the original decision was fatally flawed.").  Vanerson v. 
West,12 Vet. App. 254, 258-259 (1999).

Rebuttal of the presumption must involve an impartial and 
thorough review of all the evidence of record.  The 
provisions of 38 C.F.R. § 3.304(b) direct VA adjudicators to 
consider all of the relevant evidence of record when 
determining whether clear and unmistakable evidence exists to 
rebut the presumption of soundness.  See Crowe v. Brown, 7 
Vet. App. 238, 245-46 (1994) ("In determining whether there 
is clear and unmistakable evidence that the injury or disease 
existed prior to service, the Court considers the history 
recorded at the time of examination together with 'all other 
material evidence.'") (quoting 38 C.F.R. § 3.304(b)(1)); 
Parker v. Derwinski, 1 Vet. App. 522, 524-25 (1991) (holding 
that the Board must analyze the medical opinions it was 
relying on to rebut the presumption of soundness "in the 
context of all the evidence of record," including the 
appellant's sworn testimony that the service medical doctor 
had misinterpreted his statement).  The Court in Vanerson 
stated the following:

Additionally, the standard of proof for 
rebutting the presumption of soundness is 
not merely evidence that is cogent and 
compelling, i.e., a sufficient showing, 
but evidence that is clear and 
unmistakable, i.e., undebatable . . . . 
[and] the question is not whether the 
Secretary has sustained a burden of 
producing evidence, but whether the 
evidence as a whole, clearly and 
unmistakably demonstrates that the injury 
or disease existed prior to service.  
That determination is dispositive as to 
the question of preservice inception; 
further adjudication under a 
preponderance of the evidence would be 
redundant.

Vanerson, 12 Vet. App. at 261, as quoted in Cotant v. 
Principi, 17 Vet. App. 116, 132 (2003).

The Board must determine whether the evidence supports the 
claim or is in relative equipoise, with the veteran 
prevailing in either case, or whether the preponderance of 
the evidence is against the claim, in which case, service 
connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).

Analysis.  The veteran maintains that service connection is 
warranted for degenerative joint disease, which ultimately 
led to a hip replacement.  He contends that he injured his 
left hip while in service when he fell and sustained an 
injury to his right ribs.  He vigorously disagrees with 
several medical opinions finding a likelihood of Legg-Perthes 
disease prior to service and that degenerative arthritis of 
his left hip was due to the natural progression of the 
disease.

Presumption of Soundness

No pre-service medical records are available.  In the 
February 2002 Board development, the veteran was asked to 
provide any information concerning medical treatment he 
received prior to military service.  He related that one 
physician, who had performed a single home visit, had died in 
the 1950s or 1960s.  He could not recall the name of another 
physician who had treated him in 1952-53 and the physician 
had apparently moved to Florida 30 years previously.

The veteran's January 1955 entrance examination did not 
mention a pre-existing left hip disorder and his lower 
extremities were normal.  For that reason, he is entitled to 
the presumption of soundness.

While there is medical-judgment evidence and the veteran's 
own statements which indicate that he suffered from a pre-
service left hip disorder, diagnosed as likely Legg-Perthes 
disease, the evidence regarding this matter is not clear and 
unmistakable.  In a May 1985 report, the veteran related a 
long history of hip pain, which he stated began at childhood; 
however, he reported that his left hip had not bothered him 
during 22 years of active duty service.  A leg length 
discrepancy was noted and an X-ray revealed avascular 
necrosis and collapse of a rather severe stage IV injury with 
involvement concomitantly of the acetabulum with post-
traumatic arthrosis.

In an April 1988 private medical record, the treating 
physician noted that the veteran related complaints of hip 
pain "to an old injury as a child when he fell off a bike."  
In May 1988, he underwent a left hip replacement.  The 
preoperative diagnosis was severe degenerative arthritis of 
the left hip with acetabular and femoral head cystic changes.  
The examiner felt the condition was secondary to an old 
childhood injury, which was "probably Legg-Perthes disease, 
left hip."

A July 1996 VA examination report reflect that after 
examining the veteran and reviewing the claims file, the VA 
examiner concluded that "it appears [the veteran] had Perthes 
disease of the left hip as a child."  In an October 1999 VA 
examination report the same VA examiner stated that the 
medical records indicated an old injury to the left hip as a 
child with subsequent development of "probable Perthes 
disease."

In a May 2002 VA examination report, another examiner noted 
that the lack of X-ray evidence confirming a diagnosis of 
Legg-Perthes in childhood spoke again the diagnosis of Legg-
Perthes disease but stressed that the post-service X-ray 
evidence and clinical examination suggested that the 
veteran's left hip condition was, in fact, secondary to Legg-
Perthes disease.

Two reports of a private physician, submitted in support of 
the veteran's claim, appear to concede that the veteran 
experienced a pre-service hip injury.  Of note, in a 
September 2001 report, the private physician stressed that 
the veteran's "Perthes' disease was aggravated and made 
worse" by military service.  More recently, the same private 
physician remarked that the issue was properly characterized 
as whether military service aggravated the veteran's Legg-
Perthes disease.  This assertion, by definition, appears to 
concede the premise that the veteran had Legg-Perthes disease 
prior to military service.

In several statements received in December 1999 and February 
2000, the veteran took issue with an earlier reported medical 
history.  He maintained that he had not injured his hip 
during childhood when he fell off a bike, but that he had 
injured the hip when he fell in 1964 during service.  He also 
emphasized that probable arthritis was diagnosed during 
service.  He contended that because the doctors made use of 
the words "probably" and "possibly," their reports were full 
of conjecture and speculation.

To that end, the Board has considered the equivocal nature of 
the diagnoses of Legg Perthes disease (the use of terms such 
as "likely," "probable," etc.).  While medical opinions, both 
VA and private, independently suggest that the veteran had 
Legg-Perthes disease as a child, the pre-service existence of 
this condition can not be ruled in or ruled out medically 
because no pre-service medical records are available.

While the Veterans Claims Court has held that post-service 
medical judgment alone may be used to rebut the presumption 
of soundness as long as the evidence is clear and 
unmistakable, the evidence in this case as to the pre-service 
existence of Legg-Perthes disease is not clear and 
unmistakable.  See Jordan v. Principi, 16 Vet. App. 335 
(2002), withdrawn, 2002 WL 31445159 (Vet. App. Nov. 1, 2002); 
but see Jordan v. Principi, 17 Vet. App. 261, 280 (2003) 
(medical judgment may play a conclusive role in making 
presumption of soundness determination).  In this case, the 
Board concludes that the medical evidence as to the pre-
service existence of a chronic left hip disorder is somewhat 
equivocal in nature.  Accordingly, the Board concludes that 
the presumption of soundness is not rebutted.  Applying the 
presumption of sound condition results in a finding that the 
veteran entered service in sound condition and not in a 
determination that he is entitled to an award of service 
connection for a left hip disorder.  Since the presumption of 
soundness is not rebutted by clear and unmistakable evidence, 
the veteran's claim is one for service connection based on 
incurrence in service.  Wagner, 370 F.3d at 1096.

Incurrence of Chronic Left Hip Disability During Service

The veteran sought treatment for left leg/hip complaints on 
three occasions during his 22 years of military service.  
Specifically, in March 1958, he reported weakness in the 
extensor muscles of the left thigh after bowling.  The 
impression was questionable hypochondriasis.  In September 
1958, he reported that his left leg felt weak and caused 
slight pain and cramps in the lower leg.  The examiner stated 
that the muscle cramps had been occasional in the left calf 
for three to four days and that it was normal.  Thereafter, 
service examinations dated in October 1958 and January 1959 
showed normal clinical evaluations of the veteran's lower 
extremities.

In July 1964, the veteran reported left knee and left hip 
pain.  The clinical impression was "probable arthritis or 
rheumatoid involvement of knee and hip" but there is no 
indication of additional follow-up or treatment.  
Significantly, service examinations dated in January 1965, 
September 1965, June 1969, June 1974, April 1975, and August 
1976, reflect a normal clinical evaluation of the veteran's 
lower extremities.  Moreover, the service separation 
examination dated in March 1977 also showed a normal clinical 
evaluations of the veteran's lower extremities.

While he reported complaints which could be related to his 
left hip in March 1958 (left thigh weakness), September 1958 
(cramping and weakness in the lower left leg), and July 1964 
(left knee and left hip pain), the Board places greater 
probative value on the absence of a chronic left hip disorder 
as evidenced by a normal clinical evaluation of the veteran's 
lower extremities in service examinations dated in October 
1958, January 1959, January 1965, September 1965, June 1969, 
June 1974, April 1975, and August 1976.

The Board also assigns greater probative value to the service 
separation examination dated in March 1977 showing a normal 
clinical evaluation of the veteran's lower extremities, 
particularly in light of multiple other disorders noted on 
the separation examination.  Therefore, the Board finds no 
medical evidence of a chronic left hip disorder while he was 
on active duty.

A finding that the veteran did not manifest a chronic left 
hip disorder during military service is also supported by the 
post-service medical evidence showing that he continued to be 
symptom-free for several years after service separation.  
Specifically, the Board has reviewed the post-service medical 
records associated with the claims file and finds no 
reference to left hip complaints until 1985, some 7 years 
after service separation.  At that time, he related a long 
history of hip pain beginning in childhood.

In April 1988, some 11 years after service separation, the 
veteran sought treatment for increasing pain in his left hip.  
The private physician reported that the veteran "relates this 
to an old injury as a child when he fell off a bike."  In May 
1988, he underwent a left hip replacement.  The pre-operative 
diagnosis was severe degenerative arthritis of the left hip 
with acetabular and femoral head cystic changes.  The private 
physician stated that he felt that the current diagnosis was 
secondary to an old childhood injury, which was probably 
Legg-Perthes disease, left hip.  The Board finds the multi-
year gap between service separation and treatment for left 
hip pain highly suggestive that the left hip disorder 
identified several years after service was not incurred 
during service.

A July 1996 VA examination report reflects that the VA 
examiner attributed the degenerative disease of the veteran's 
left hip to the a left hip condition that the veteran had as 
a child, which the examiner stated appeared to be Perthes 
disease of the left hip, that slowly but progressively 
worsened over the years until the veteran eventually required 
a total hip replacement in 1988.  The examiner did not 
suggest that DJD of the left hip was first manifested during 
service or was due to any injury suffered or disease 
contracted during military service.

Similarly, an October 1999 VA examination report reflects 
that the VA examiner stated that the medical records 
indicated an old injury to the veteran's left hip as a child 
with subsequent development of probable Perthes disease which 
progressively worsen over the years until eventually severe 
degenerative disease had developed.  The examiner stated that 
he believed that the increase in severity was compatible with 
the natural progression of the old Legg Perthes disease.  He 
stated that the degeneration of the hip was slowly 
progressive and relentless over the years.  The VA examiner 
reported that to say that the increase in severity was 
"beyond the natural progression" would require, to some 
degree, conjecture and speculation.  The Board finds that 
there is nothing in this analysis that would support a 
finding that the veteran has a chronic left hip disorder that 
began during service or is due to any injury suffered or 
disease contracted during the veteran's military service.

In a statement dated in September 2001, C. Bash, M.D., a 
Neuro-Radiologist, offered his opinion that the veteran's in-
service complaints related to his legs/hips were evidence 
that the veteran's left hip DJD "was likely caused by his 
service experiences."  Dr. Bash stated the following:

In review of this patient's record it is 
clear that he visited had several visits 
(sic) to medical personnel for left leg 
complaints during service in 1958, 1958, 
1964, 1977 and was observed with a limp 
by a real estate salesman in 1973.  The 
record also documents that this patient 
was a welder and therefore was likely on 
his feet for extended periods of time 
while he was welding pieces of metal.

*		*		*		*

It is my opinion that the patient's 
Perthes' disease was aggravated and made 
worse by his service physical 
requirements and his advanced DJD was 
likely caused by his service experiences 
because a large proportion of patients 
with this disease have mild symptoms and 
do not require a hip replacement.

In a May 2002 VA examination report, the veteran related that 
he jumped from a bunk in 1958 but did not recall any injury.  
In 1962, reportedly he ejected in a seat but did not recall 
any injury.  In 1964, he noted he fell on an aircraft and 
sustained fractured ribs but could not recall whether he 
complained of hip pain.  He retired from the military in 
1977, worked as a sheet metal worker for 17 years and retired 
in 1995.  The examiner noted that the veteran first 
complained of hip pain in 1985 and was diagnosed with 
arthritis and underwent a left hip arthroplasty in 1988 and a 
revision in 2000.  With respect to the veteran's Legg-Perthes 
disease, the examiner noted that it was a disease of the head 
of the femur occurring more in males than females and 
generally having its onset between the ages of three and 
eight.  It resulted in loss of circulation to the bone of the 
head of the femur and subsequent deformity of the femur head.  
It could occur with significant symptoms or hardly any 
symptoms at all.  The etiology was unknown.  The diagnosis 
was made by X-ray as well as ruling out other conditions 
which may present with similar findings such as 
hypothyroidism and epiphyseal dysplasia.  Thirty to forty 
percent of the children with this condition had a persistent 
deformity of the head of the femur into adulthood, presenting 
with the signs and symptoms of arthritis, which could require 
corrective surgery.

The examiner noted that if the veteran had had a bicycle fall 
as a child, it could have contributed to the deformity of an 
already diseased femoral head.  He noted that the lack of X- 
ray evidence as a child spoke against the diagnosis of Legg- 
Perthes disease but the findings on X-ray and clinical 
examinations prior to hip surgery suggesting that his 
condition was secondary to Legg-Perthes disease spoke in 
favor of the condition.  He was unable to determined the date 
on which the Legg-Perthes disease had its onset.  The 
examiner reflected that the record did not indicate that 
Legg-Perthes disease, if it existed, progressed at an 
abnormally high rate during the veteran's military service.  
He noted only three references to complaints related to the 
veteran's left hip in July 1964, September 1958, and March 
1958, during the veteran's 22 years of active duty.  He 
opined that this spoke against any abnormally high rate of 
progress of the disease during the veteran's military duty.

The examiner reflected that since Legg-Perthes disease, by 
definition, had its onset in early childhood, there was no 
probability of its having its onset during military service.  
He noted that one may speculate that the osteoarthritis for 
which the veteran required surgery in 1988 may have had its 
onset in service but that this was not supported by the 
record.  He concluded that the medical opinions were 
expressed after questioning the veteran and examining him and 
the record and were as unequivocal as medical probability 
would allow.

In a July 2002 follow-up letter, Dr. Bash stated his opinion 
that the May 2002 VA medical opinion that the veteran's 
osteoarthritis did not have its onset in service was 
"illogical and clearly wrong."  Dr. Bash stated that "three 
documented visits for hip problems during service, that by 
definition is onset, therefore the record does support the 
concept that [the veteran's] hip was made worse or worsened 
during service-time."  In his statement of July 2002, Dr. 
Bash stated the following:

In summary it is not speculation that 
this patients (sic) osteoarthritis 
development and or was made worse by his 
military service and that this arthritis 
lead (sic) directly to his need for hip 
replacement for the following reasons:  
1. the patient had several visits to 
medical personnel for hip problems during 
service.  2. the patient had a physically 
demanding job in service, which required 
several hours a day of work on his feet 
as a welder.  3. the literature supports 
as (sic) association between stress 
(standing -repetitive trauma) across the 
hip articulation and the development of 
joint degeneration (osteoarthritis). . . 
.  It is as likely as not (50-50 chance) 
that this patient's Perth's (sic) disease 
was made worse during his service time 
due to the physical demands of his 
service experience.

The Board finds that Dr. Bash's assessment is not consistent 
with the service medical records.  Dr. Bash stressed that the 
veteran "had three documented visits for hip problems during 
service, that by definition is onset, therefore the record 
does support the concept that [the veteran's] hip was made 
worse or worsened during service- time."  The Board does not 
agree.  First, the service medical records do not support the 
proposition that the veteran sought treatment for hip 
complaints on three occasions.  In March 1958, he reported 
left thigh weakness but no diagnosis was made related to the 
hip.  In September 1958, he reported cramping and weakness in 
the lower left leg.  Although it could be construed as 
referred pain, the military examiner made no mention of a hip 
problem.  Finally, in July 1964, the veteran, for the first 
time, reported left knee and left hip pain but no specific 
diagnosis was made.  Therefore, the in-service medical 
evidence does not necessarily reveal that the veteran sought 
treatment for hip pain on three occasions.

Next, even if his in-service symptoms could be construed to 
be related to a left hip disorder, the Board places more 
probative value on the subsequent periodic service 
examinations reflecting a normal clinical evaluation of the 
veteran's lower extremities.  This suggests that any in-
service symptoms were acute and transitory.  Therefore, the 
Board finds that three isolated complaints vaguely related to 
the veteran's left hip over a period of 22 years, without 
more, cannot establish the presence of a chronic left hip 
disorder.  As such, the Board finds that the service medical 
records do not support a finding that a chronic left hip 
disorder was manifested during the veteran's military 
service.

Moreover, Dr. Bash does not address the multi-year period 
between service separation and post-service hip complaints, 
during which time the veteran was essentially asymptomatic.  
Therefore, the Board places significantly less probative 
value on Dr. Bash's medical opinion as it is not consistent 
with the service medical records or with the post-service 
medical evidence showing no pertinent complaints or findings 
for several years after he was released from military 
service.

After carefully weighing all three recent medical opinions, 
the Board is compelled to place more probative weight on the 
VA examination because it is consistent with the medical 
evidence of record.  Specifically, the Board does not dispute 
the evidence that the veteran experienced signs and symptoms 
associated with his left leg/knee in service as this is 
reasonably supported by the service medical records showing 
complaints in March 1958, September 1958, and July 1964.  
However, as noted above, these complaints are not shown to be 
indicative of a chronic left hip disorder but rather are 
shown to have been acute and temporary as demonstrated by 
subsequent examinations.  While the Board acknowledges Dr. 
Bash's opinion that a left hip disorder would have been 
aggravated by prolonged standing, his stressful job, and the 
like, a chronic left hip disorder is not shown to have been 
manifested during his period of military duty.  To this end, 
the Board places greater probative weight on the service 
medical records, which clearly show that the clinical 
examinations of the veteran's lower extremities, including 
his separation examination, were normal throughout his 22-
year military career.

The Board has also considered the veteran's own statements 
that his left hip disorder was manifested during military 
service.  His assertions are not deemed to be persuasive in 
light of the other objective evidence of record showing no 
chronic left hip impairment during service and no indications 
of pertinent symptoms for many years after military 
discharge.  In the absence of competent, credible evidence of 
in-service left hip impairment, and no post-service treatment 
for several years after service separation, service 
connection for a chronic left hip disorder must be denied.

Further, the veteran has alleged that Legg Perthes disease 
may have healed and that the fall he sustained in service 
could have re-injured his left hip.  He has alleged various 
bases as to why service connection for degenerative joint 
disease, to include left hip replacement, is warranted.  He 
refutes the medical findings made by the VA examiner that 
Legg Perthes disease pre-existed service and was not 
aggravated in service.  However, it has not been shown that 
he possesses the requisite knowledge of medical principles 
that would permit him to render an opinion regarding matters 
involving medical diagnoses or medical etiology.  See 
Espiritu v. Derwinski, 4 Vet. App. 492, 494 (1992).

Moreover, the October 1999 VA examiner specifically addressed 
the issue of whether the veteran's hip was injured at the 
time of a 1964 fall (when he sustained a contusion to his 
right ribs).  The examiner stated that there was no evidence 
to suggest that the veteran's left hip was injured at that 
time.  He reflected that it was possible for the left hip to 
have been injured, but that the veteran had not recalled a 
hip injury.  The VA examiner noted that the veteran asserted 
that the hip was only "possibly injured" in the fall.  The VA 
examiner stated that to determine that the hip was injured 
would be resorting to conjecture and speculation.  The Board 
places high probative value on the medical opinion as it 
directly addresses, but contradicts, the veteran's assertion.

To the extent the veteran claims entitlement to benefits for 
a left hip disorder on a presumptive basis, the Board finds 
that the veteran's claim must fail.  First, the Board is 
persuaded by the absence of complaints of, treatment for, or 
diagnosis of a chronic left hip disorder in service or until 
many years after his retirement from service.  As noted, the 
service medical records are negative for degenerative joint 
disease of the left hip as evidenced by normal clinical 
examinations, although the records note "possible" arthritis, 
including rheumatoid arthritis, which has never again been 
suggested.  Further, there are no complaints related to a 
left hip disorder for many years after service separation.  
As such, the Board finds no evidence of continuity of 
symptomatology as shown by the multi-year gap between service 
separation and treatment for a left hip disorder in 1988.  
Accordingly, the veteran's claim for a left hip disorder on a 
direct or presumptive basis must be denied.

The service medical records reflect that the veteran was 
symptom-free at the time he entered into active duty, had 
only three complaints remotely related to his left leg/hip 
over a 22-year military career, and sought no further 
treatment until several years after service separation.  
Accordingly, the Board concludes that service connection is 
not established for a chronic left hip disability, including 
DJD and left hip replacement.


ORDER

Service connection for DJD of the left hip, to include left 
hip replacement, is denied.


____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs