Citation Nr: 0634966	
Decision Date: 11/13/06    Archive Date: 11/27/06

DOCKET NO.  93-06 917	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to service connection for a hip disability.


REPRESENTATION

Appellant represented by:	Julie M. Clifford, Attorney


ATTORNEY FOR THE BOARD

Michael J. Skaltsounis, Counsel




INTRODUCTION

The veteran had active service from August 1979 to July 1982, 
and from November 1990 to April 1991.  He also had active 
duty for training from May to June 1986, May to June 1987, 
June 6 to 17, 1988, and June 3 to 15, 1990.  This matter 
comes before the Board of Veterans' Appeals (Board) on appeal 
from a May 1991 rating decision by the Muskogee, Oklahoma 
Regional Office (RO).  This case was before the Board in 
January 1996 when it was remanded for additional development.

In October 1996, the Board issued a decision denying service 
connection for a hip disability.  On April 6, 1998, the 
United States Court of Appeals for Veterans Claims (known as 
the United States Court of Veterans Appeals prior to March 1, 
1999, hereafter "the Court") issued an Order which granted 
a Joint Motion for Remand, vacated the Board's October 1996 
decision, and remanded the case to the Board for action in 
compliance with the Joint Motion for Remand.

In August 1998, the case was remanded for additional 
development, and in June 2000, the Board again remanded the 
case for etiological opinions that had not been provided as 
previously requested.  

Additional opinions have now been obtained, and the case is 
now ready for further appellate review.


FINDING OF FACT

The veteran has avascular necrosis (AVN) of the hips that is 
related to active service.


CONCLUSION OF LAW

AVN of the hips was incurred in active service.  38 U.S.C.A. 
§§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Background

At the outset, the Board notes that this matter has been 
sufficiently developed pursuant to the guidelines established 
in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. 
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA), 
and that as a result of the Board's decision to grant service 
connection for AVN of the hips, any failure to notify and/or 
develop the claim under the VCAA cannot be considered 
prejudicial to the veteran.

The issue before the Board is entitlement to service 
connection for a hip disability.  Briefly summarized, the 
veteran's service medical records for his first period of 
service are negative for complaint, treatment, or diagnosis 
of a hip disability.  However, service medical records do 
reflect that the veteran was treated for an instance of right 
knee pain in March 1981, which was variously diagnosed as 
"probable muscle strain-unknown etiology" and 
chondromalacia.  In addition, post-service medical records 
reflect that the veteran complained of throbbing left hip and 
leg pain in November 1983 and a history of arthralgias, and 
X-rays of the hips revealed findings consistent with past 
trauma or perhaps a history of ischemic necrosis of the 
femoral heads.

In November 1985, Department of Veterans Affairs (VA) 
evaluation revealed differential diagnoses of past history of 
possible Perthe's disease or ischemic necrosis of the femoral 
heads.  An April 1988 X-ray of the hips was interpreted to 
reveal an impression that included aseptic necrosis changes.

Service medical records from the veteran's second period of 
service reflect diagnoses of bilateral idiopathic avascular 
necrosis of the femoral heads.

Dr. Charles Miller, independent medical examiner, concluded 
in June 1995, that the veteran had preexisting osteoarthritic 
changes in the hips that was not accelerated by his second 
period of service, and that any increase would be due to the 
natural progression of the disease.

In July 1999, VA examiner, Dr. Milton Davis, provided an 
impression that included bilateral avascular necrosis of both 
hips, confirmed by X-ray.  Dr. Davis commented that he did 
not disagree with the opinion of Charles Miller who, 
according to Dr. Davis, indicated that there was a natural 
progression of AVN of the hips.

In October 1999, VA examiner, Dr. Henry Bendel, reviewed the 
veteran's medical records and concluded that he had 
progressive avascular necrosis of both hips.

In February 2001, VA examiner, Dr. Thompkins, believed that 
the veteran had arthritis of the hips that was not initially 
manifested in his first period of service, and not aggravated 
by his second period of service.  

In a private medical report, dated in May 2001, Dr. Craig 
Bash opined that the veteran's AVN most likely developed from 
the use of anti-inflammatory drugs used during his first 
period of active service.  It was further his opinion that 
the veteran's in-service left knee pain was likely referred 
pain from his hip/hips as subsequent left knee examinations 
and X-rays revealed negative findings.

In a supplemental medical report, dated in December 2001, Dr. 
Thompkins disagreed with the opinion of Dr. Bash as to the 
etiology of the veteran's AVN.  

In a supplemental medical report, dated in April 2002, Dr. 
Bash addressed some of the issues raised by Dr. Thompkins, 
and continued to opine a relationship between the veteran's 
AVN of the hips and his first period of active service.

Following his review of the record in July 2002, Board of 
Veterans' Appeals medical advisor, Dr. C. W. Foulke, opined 
that based on the onset of severe bilateral hip pathology 15 
months after the termination of the veteran's first period of 
active service, in all likelihood, the veteran's AVN was 
related to the veteran's first period of active service.  A 
copy of this opinion was forwarded to the appellant's 
attorney.

In November 2004, a second independent medical expert, Dr. 
Richard Worrell, opined that the veteran could have had 
asymptomatic hip disease at the time of his pre-induction 
examination in August 1979.  Dr. Worrell was not able to 
answer the question as to whether military service could have 
aggravated a pre-existing asymptomatic idiopathic ischemic 
necrosis of the femoral heads.


II.  Analysis

The Board has carefully reviewed the evidence of record and 
first notes that it reflects diagnoses of both AVN and 
arthritis of the hips.  Therefore, the Board finds that the 
requirement of a current disability has been met with respect 
to the veteran's claim.  

The Board further notes, however, that to establish service 
connection for a hip disability, there must be competent 
medical evidence linking either AVN or arthritis to service.

In this regard, while there is no evidence that links a 
current diagnosis of arthritis to service or a period of one 
year after service (in fact, there are two opinions of record 
that are against a relationship between existing arthritis of 
the hips and service), there are two medical opinions that 
opine a relationship between the veteran's AVN and the 
veteran's first period of service.  More specifically, Dr. 
Craig Bash has opined such a relationship based on drugs that 
the veteran was prescribed during service and/or the 
likelihood that the veteran's left knee pain during service 
was associated with a hip/hips disorder.  

In addition, Dr. Foulke opined that based on the onset of 
severe bilateral hip pathology 15 months after the 
termination of the veteran's first period of active service, 
in all likelihood, the veteran's AVN was related to the 
veteran's first period of active service.

As for the opinions against the claim, the Board notes that 
Dr. Miller found that preexisting arthritis was not related 
to the veteran's second period of service, and does not 
directly address the relationship offered by Dr. Bash and Dr. 
Faulke.  Moreover, Dr. Thompkins also focuses on arthritis of 
the hips.  

Therefore, in considering all of the opinion evidence of 
record, even if the Board were to construe the opinions of 
Dr. Miller and Dr. Thompkins as directly contrary to the 
opinions of Dr. Bash and Dr. Foulke, at worst, the Board 
finds that with two opinions in support of the claim and two 
against, the pertinent medical opinions of record would be in 
equipoise, and that the veteran would therefore be entitled 
to the benefit of the doubt.  Accordingly, the Board will 
conclude that the evidence warrants entitlement to service 
connection for AVN of the hips as directly related to the 
veteran's first period of active service.  38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for avascular necrosis of 
the hips is granted.


____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs