Citation Nr: 1121585 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 09-11 099A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a right hip disability, as secondary to service-connected residuals of osteochondroma excision of the left knee (left knee disability) and retro-patellar pain syndrome of the right knee (right knee disability). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to February 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In his April 2009 substantive appeal, the Veteran requested a personal hearing before a member or members of the Board. In a subsequent letter sent to the Veteran in January 2011, the RO informed the Veteran of a Board hearing scheduled in March 2011. He failed to appear. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2010). FINDING OF FACT A right hip disability was not incurred during service or caused or aggravated by the Veteran's service-connected left or right knee disability. CONCLUSION OF LAW The criteria for service connection for a right hip disability, either on a direct basis or as secondary to the service-connected left and right knee disability, have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). 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); 38 C.F.R. § 3.303(d). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2010). Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment reports are absent for any complaints of, or treatment for, a hip condition. While the Veteran's separation examination is not of record, these service treatment records, overall, provide limited evidence against the Veteran's claim for service connection for a right hip disability as they do not indicate an injury or condition of the right hip in service. Initially, the Veteran just filed a claim for the right leg and then complained about hip pain during the 2008 VA examination. Subsequently, he asserted that his right hip condition is secondary to his service-connected right and left knee disabilities due to altered gait. In September 2008, the Veteran was afforded a VA examination of his joints. At that time, the Veteran was diagnosed with right hip pain with limited range of motion. The examiner indicated that he was unable to get a clear picture of the Veteran's abilities, given the different ranges of motion that were obtained in supine versus seated positions. Regardless, the examiner opined that "it is less likely as not that [the Veteran's] hip condition is caused by or result of the left knee condition." The examiner did not provide an opinion as to the relationship between the Veteran's current right hip disability and his service-connected right knee disability. In that respect, the Board finds that the September 2008 examination is incomplete for VA benefits purposes. A VA outpatient treatment report from March 2009 revealed the results of an x-ray of the Veteran's hips. The report indicated that the Veteran's right hip joint space was virtually obliterated superiorly with large osteophytes, subchondral sclerosis, geode formation, mild flattening of the femoral head, and periarticular cystic changes. There was no acute fracture or dislocation and the sacroiliac joints were normal. The diagnosis of the right hip was advanced, end stage avascular necrosis. However, at that time, there was no medical opinion as to the etiology of the Veteran's diagnosed, right hip disability. The Veteran requested the provider give him a letter relating the disability to carrying heavy packs and running during service, but she would not do so, noting it would be speculative. The Veteran underwent another VA examination in January 2010. At first he reported no known injury during service to account for the right knee/hip pain, but he then stated that he was involved in a pugilistic competition during service when he was struck on the right thigh/hip area forcefully enough to knock him over. The diagnosis was avascular necrosis of the right hip, which was confirmed upon x-ray testing and an orthopedic consultation. Significantly, the examiner indicated that he did not have the Veteran's service treatment records for review. Nonetheless, with respect to the etiology of the Veteran's right hip condition, the examiner opined that "[b]ased strictly on [the] veteran's oral history, it is at least as likely as not that his right hip avascular necrosis is the result of his injury in the military." Since the January 2010 VA examiner did not have access to the claims file and did not opine as to the theory of secondary service connection, the Veteran underwent another VA examination of his joints in June 2010. He again relayed an in-service injury to the right knee from a pugil stick. The examiner noted his review of the Veteran's claims file, including his service treatment records. At that time, the examiner diagnosed the Veteran with severe degenerative disease of the right hip. The examiner opined that the Veteran's "degenerative right hip is not likely to be caused by service related injury to right or left knee during pugil stick competition, although it is likely that the initial manifestation of the hip arthritis was knee pain." The examiner explains that "[t]he degree of arthritis and the fact it is unilateral, points to a traumatic cause directly to the hip joint. Since we have no evidence of hip injury during military service, it is less likely than not that his current hip problem is related to injury caused during military service." The examiner further opined that the Veteran's "degenerative right hip is not likely to be permanently aggravated by both his right knee and left knee service connected disabilities." He explained that the alteration of the Veteran's gait, as well as leg length discrepancy, is caused by his hip arthritis and not by his knee disabilities. Finally, the examiner stated that a "careful review of service records did not reveal objective evidence of a right hip injury during the pugil stick game, [and thus] the current degenerated hip is not likely due to left leg injury sustained during the game. As stated before, only a direct injury to the right hip itself, including fracture, could cause the current degenerated changes in the right hip." As for direct service connection, the preponderance of the evidence is against the claim. The service records do not show injury to the right hip or treatment for the right hip. The Veteran at first did not relay a specific in-service injury, but his story changed throughout the claims process. The only medical opinion at all favorable to the claim for direct service connection was that of the January 2010 VA examination. Ultimately, however, that opinion is of little probative value. The examiner explicitly stated the opinion was based solely on the history the Veteran provided, and that history is simply not credible. Rather, the Veteran's service records clearly show injury to the left femur and knee, not the right. In contrast, once the full medical history was reviewed, the June 2010 VA examiner clearly opined that since there was no objective evidence of injury to the right hip during service, the condition is less likely related to service. The June 2010 examiner provided a detailed explanation and the opinion was clearly based on a review of the Veteran's entire history. As for secondary service connection, the preponderance of the evidence is against the claim. The 2008 VA opinion was clearly against the claim with respect to the left knee causing or aggravating the right hip condition. At that time, the right knee was not service connected. The June 2010 VA opinion is clearly negative as to whether either knees caused or aggravated the right hip condition, explaining that the altered gait is due to the hip, not the knees. The June 2010 examiner provided a detailed explanation and the opinion was clearly based on a review of the Veteran's entire history. Only the Veteran's own contentions, namely, that his current right hip disability is due to some incident in service and/or is proximately caused by his service-connected right and left knee disabilities, stands in favor of his claim. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the U.S. Court of Appeals for Veterans Claims has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran's contention regarding a relationship between his claimed disability and an alleged in-service injury or his disabilities that are already service-connected is not a statement about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis. Rather, this contention is a statement of causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran has not demonstrated any such expertise. Thus, his contentions are not competent medical evidence of the cause of this claimed disability. In addition, a review of the Veteran's VA outpatient treatment reports do not provide any additional information that would be favorable to the claim for service connection for a right hip disability, either on a direct basis or as secondary to his service-connected right and left knee disabilities. Finally, since there is no evidence that the Veteran suffered from arthritis of the right hip within one year of discharge, the provisions of 38 C.F.R. § 3.307 and § 3.309 are inapplicable. Based on the above, the preponderance of the evidence of record is against a grant of service connection for a right hip disability, either as directly incurred in service or as secondary to service-connected left knee disability and right knee disability, and his claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). Duties to Notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2009. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). That was followed by readjudication in the August 2010 supplemental statement of the case. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). He underwent several VA examinations for the purpose of obtaining an etiology opinion and, as discussed in more detail above, the 2010 examination was the most probative evidence since that examiner had full access to the claims file and opined as to both direct and secondary theories of causation. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. (CONTINUED ON NEXT PAGE) ORDER The appeal is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs