Citation Nr: 1302889 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 08-08 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hip disability, including as secondary to a service-connected lumbar spine disability. 2. Entitlement to service connection for a left hip disability, including as secondary to a service-connected lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from August 1978 to February 2005. These claims come before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified in support of these claims during a hearing held before a Hearing Officer at the RO in September 2009. In December 2010, the Board remanded these claims to the RO for additional development. A review of the Virtual VA paperless claims processing system reveals no documents pertinent to this appeal, which the RO has not considered. FINDINGS OF FACT 1. A right hip disability was caused by incident of the Veteran's active service. 2. A left hip disability was caused by incident of the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a right hip disability are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for the establishment of service connection for a left hip disability are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations provide that VA must notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO provided the Veteran adequate, timely VCAA notice and adequate assistance in support of his claims. Even assuming otherwise, a remand would be unnecessary. Given the disposition of these claims, the Veteran is not prejudiced by the Board's decision to proceed in adjudicating them. Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). Analysis The Veteran asserts that developed these disabilities over the entirety of his service and in particular in 1990 after a 20-mile march; or as a result of being a paratrooper; or as secondary to his service-connected lumbar spine disability. The Board presently grants the claims. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain chronic conditions such as arthritis if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of 10 percent within one year of the date of discharge. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A report of VA examination conducted in November 2010 confirms that the Veteran currently has bilateral hip disabilities characterized as right and left hip strains. The question is thus whether these conditions are related to the Veteran's active service or service-connected lumbar spine disability. The Veteran's Report of Separation from the Armed Forces (DD Form 214) establishes that the Veteran served on active duty for in excess of 20 years, from August 1978 to February 2005. According to his service personnel file, during this time period (from October 7 to October 9, 1991), he completed three administrative or non tactical parachute jumps and two parachute jumps with combat equipment. The Veteran first reported hip complaints during a September 2004 pre-discharge examination. Prior to November 2010, however, no medical professional diagnosed a hip disability. However, in 1992, the Veteran reported pain in his right lower extremity, but x-rays revealed a stress fracture below the knee. The Veteran asserts that, he experienced bilateral hip pain continuously since 1990. One medical professional, a VA examiner, has addressed the etiology of the Veteran's bilateral hip disabilities. In a report of VA examination conducted in November 2010, she ruled out a relationship between the Veteran's current hip disabilities and his service. She found that there are no records of hip complaints during active duty and, although the Veteran reported such complaints on pre-discharge examination, the examination was normal, not resulting in a hip diagnosis. However, the VA examiner did not contemplate the Veteran's competent report of continuity of hip symptomatology (pain is lay observable) or evidence documenting the parachute jumps. The RO therefore returned the VA examination report to the examiner for an addendum. In November 2010 the examiner related the Veteran's hip injuries to the hard landings associated with parachuting. The VA examiner based this opinion on the fact that such landings can cause trauma to the lower extremities. There is no documentation of record suggesting that the Board should question the VA examiner's credibility in this matter. Based on in-service evidence of multiple parachute jumps, the Veteran's competent reports of continuity of hip symptomatology since 1990, and the VA examiner's favorable opinion, the Board finds that right and left hip strains are related to the Veteran's active service. In light of this finding, the Board concludes that these conditions were incurred in service. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The evidence in this case supports the Veteran's claims. The benefit of the doubt rule is thus not for application. The Board does not express any opinion as to the severity of the Veteran's bilateral hip disorders. The RO will assign an appropriate disability rating upon implementation of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER Service connection for a right hip disability is granted. Service connection for a left hip disability is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs