Citation Nr: 0836663 Decision Date: 10/24/08 Archive Date: 10/31/08 DOCKET NO. 07-33 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral hip disability as secondary to service-connected prostate cancer. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The veteran's bilateral hip disability is etiologically related to his service-connected prostate cancer. CONCLUSION OF LAW Bilateral hip disability is proximately due to, the result of, or aggravated by the service-connected prostate cancer disability. 38 U.S.C.A. § 1101 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.310(a) (in effect in 2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service Connection The veteran contends that he has bilateral hip pain which is etiologically related to the radiation treatment that he received due to his service-connected prostate cancer. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service- connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that 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) (en banc). 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.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the Court's decision in Allen, which, as noted above, addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). Under the revised section 3.310(b), the regulation provides that: Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b) (2007)). Although it was expected that the intended effect of the amendment was to conform VA regulations to the Allen decision, the regulatory amendment effectively resulted in a change in the law. This analysis is not correct. Rather, the overall intention of the amendment to 38 C.F.R. § 3.310(b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C. § 501 as the supporting authority, and not Allen. See 71 Fed. Reg. 52,744-45 (Sept. 7, 2006). A review of the regulatory comments make clear that, ultimately, it is the veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity, and that it is not enough merely that an examiner concludes that there is "aggravation." See 71 Fed. Reg. 52,745 (Sept. 7, 2006). In sum, 38 C.F.R. § 3.310(b) appears to place substantive evidentiary restrictions on a veteran before aggravation may be conceded, and these restrictions appear to have no basis in the Allen decision itself. However, in this case, the veteran's claim was filed prior to the effective date of the revised regulation (October 10, 2006). As such, the Board finds that the prior version of the regulation is more advantageous to the veteran and should be applied. When a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003. In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin. The veteran submitted a letter dated in April 2006 from his private physician, R.C.J., M.D., a radiation oncologist, who has treated the veteran since 1994 for prostate cancer. Dr. J. indicated that the veteran had undergone radiation therapy for his prostate cancer. Due to the radiation therapy, the veteran developed residuals, including hip pain. In August 2006, the veteran was afforded a VA examination. X-rays revealed bilateral degenerative osteoarthritis of the hips. The examiner stated that it was at least as likely as not that the bilateral hip pain was due to the degenerative joint disease. However, the examiner did not provide any opinion regarding whether the radiation therapy aggravated the bilateral hip disability. The Board finds that the medical evidence of record is in relative equipoise as to the matter of whether the veteran's bilateral hip disability was aggravated by his service- connected prostate cancer. The VA examiner provided no opinion on this point. The Board accepts that the x-rays show bilateral osteoarthritis; however, the private radiation oncologist opined that the radiation treatment resulted in the current bilateral hip pain. This physician is a specialist in his field and is familiar with the veteran's prostate cancer, the treatment rendered, and the residuals. The Board finds that his conclusion, when affording the veteran the benefit of the doubt, is tantamount to, at the least, a finding of aggravation. It certainly establishes an etiological connection between current bilateral hip disability and the radiation therapy provided for prostate cancer. This physician is qualified to make that assessment as it comes specifically within his area of expertise as a radiation oncologist. The evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for bilateral hip disability is warranted. ORDER Service connection for a bilateral hip disability is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs