Citation Nr: 1307485 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-06 046 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the RO in Waco, Texas, in which the RO denied service connection for a left hip disorder. In August 2008 the Board denied the Veteran's appeal for service connection for a left hip disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2009 Joint Motion to Vacate and Remand, the Secretary of Veterans Affairs (VA) and the Veteran, through his representative, moved that the August 2008 Board decision be vacated and remanded on the basis of inadequate reasons and bases (rationale) to rebut aggravation during service. The Court granted the motion by Order in June 2009. The Board denied the appeal again in a November 2009 decision. The Veteran appealed to the Court again. The Court reversed the Board in a June 2012 decision, directed a finding of in-service aggravation, and remanded the case for further proceedings. Horn v. Shinseki, 25 Vet. App. 231 (2012). FINDINGS OF FACT 1. A left hip disorder, including Legg-Perthe's disease, was not noted at service entrance in October 1970. 2. The evidence clearly and unmistakably demonstrates that the Veteran's Legg-Perthe's disease existed prior to the period of active duty service from October to November 1970. 3. The evidence does not clearly and unmistakably demonstrate that the Veteran's Legg-Perthe's disease was not aggravated during the period of active duty service from October to November 1970. 4. The Veteran's current disability of Legg-Perthe's disease of the left hip is the same as the disability diagnosed during service. 5. There is no evidence of an intercurrent cause to which the current disability might be attributable. CONCLUSIONS OF LAW 1. Clear and unmistakable evidence demonstrates that the Veteran's Legg-Perthe's disease existed prior to his entry into active military service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b) (2012). 2. Clear and unmistakable evidence does not demonstrate that the Veteran's preexisting Legg-Perthe's disease was not aggravated by active service; the presumption of soundness is not rebutted. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b) (2012). 3. The Veteran's Legg-Perthe's disease of the left hip was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The claim has been granted, as discussed below. As such, the Board finds that further discussion of the duties to notify or assist are not necessary. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Service Connection for Left Leg Disorder The Veteran contends that he has a left hip disability for which service connection is warranted. The Veteran wrote in his notice of disagreement that the left leg disease was first diagnosed by military doctors in 1970. He asserts generally that the stress of military service, such as bootcamp and forced marches, may aggravate a condition, though he does not assert that he sustained any left leg injury during service or identify any symptoms reflective of worsening during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record reflects that the Veteran suffers from Legg-Perthe's disease affecting his left hip. An August 2006 assessment stated that the Veteran had marked deformity to the acetabulum and femoral head. Marked atrophy was seen. Increased pitch was noted to the superior acetabulum with cortical sclerotic irregularity compatible with longstanding dysplasia to the left hip. The current disability element is well established. See Shedden. A veteran is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated therein. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the claimant's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the evidence shows that a left hip disorder, including Legg-Perthe's disease, was not noted at service entrance in October 1970. Because a left hip disorder was not noted at service entrance, the presumption of soundness at service entrance attached. 38 U.S.C.A. § 1111. The evidence in this case clearly and unmistakably demonstrates that the Veteran's Legg-Perthe's disease existed prior to the period of active duty service from October to November 1970. In this case, the Veteran served on active duty for a brief period of less than two months, from October 1, 1970 to November 24, 1970. Service treatment records reflect that, in October 1970, the Veteran presented with complaints of left hip pain. He gave a history of Legg-Perthe's disease since age six. He added that, since age six, he had been unable to walk or run long distances without pain. The diagnosis following examination was Legg-Perthe's disease of the left hip that had existed prior to service. This treatment report reflects that the physician specifically considered the Veteran's history in rendering his opinion that Legg-Perthe's disease, left hip, was not incurred in the line of duty, but existed prior to service. The physician recommended that the Veteran meet a Medical Board for consideration of separation from service. The Board further notes that X-ray conducted on the same date revealed severe deformity of the left acetabulum and femoral head, consistent with old Legg-Perthe's disease. In October 1970, the Medical Board, which included a physician, diagnosed Legg-Perthe's disease, left hip, not incurred in line of duty, existed prior to service, and recommended separation from service. In its proceedings, the Medical Board acknowledged careful review of the clinical records, health records, and medical examinations. Thus, the Board finds the aforementioned October 1970 medical opinions, that the Veteran's Legg-Perthe's disease existed prior to service, to be of high probative value, as they were based on the Veteran's history, treatment records, clinical observation and findings, and in-service diagnosis. The conclusion that the Veteran's Legg-Perthe's disease pre-existed service is also supported by the post-service medical evidence. In this regard, in August 2006 correspondence, Dr. Potter from the Texas Department of Criminal Justice noted that the Veteran had been incarcerated since 1985. Dr. Potter indicated that he had reviewed the Veteran's medical record concerning the left hip Legg-Perthe's disease and reported that, in April 1991, the Veteran claimed a lifelong deformity of the femoral head and requested help with pain control. A January 1989 left hip X-ray from the Texas Department of Corrections includes findings of flattening of the left femoral head and shortening of the left femoral neck, with dysplasia of the left acetabulum. The radiologist opined that this was probably secondary to Legg-Perthe's disease as a child. Based on the foregoing, the Board finds that there is clear and unmistakable (obvious and manifest) evidence that the Veteran's Legg-Perthe's disease pre-existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In its June 2012 decision, the Court affirmed the Board's finding that the evidence clearly and unmistakably demonstrated the disability preexisted service but reversed the Board's finding that the evidence clearly and unmistakably demonstrated that the disability was not aggravated during service. Horn v. Shinseki, 25 Vet.App. 231, 237, 241 (2012). The Court directed that a finding of in-service aggravation of the hip condition be entered. The Court's ruling is now the law of the case. The Board is bound to find that the presumption of soundness at service entrance has not been rebutted. See Wagner. When either prong of the presumption of soundness analysis is not rebutted, directs that the claim becomes one for service connection, that is, whether the disability was incurred in service or is related to service, ignoring the evidence that the disability (clearly and unmistakably) preexisted service. See Wagner at 1096. Turning to the question of in-service incurrence, the service treatment records show a diagnosis of Legg-Perthe's disease of the left hip with severe deformity of the left acetabulum and femoral head. Ignoring the evidence of preexistence of Legg-Perthe's disease, as instructed to do by Wagner, the Board finds that the first evidence of Legg-Perthe's disease is shown during service, and that there is no evidence that the current disability is due to an intercurrent cause. The result is a finding that the Legg-Perthe's disease of the left hip began during service, hence, was incurred in service. Given the Court's findings (which are binding on the Board), the Board finds that the Veteran has a current left hip disability which is the same as the one first diagnosed during service and that there is no evidence of an intercurrent cause to which the current disability might be attributed. Consequently, the criteria for service connection for Legg-Perthe's disease of the left hip, as incurred in service, are met. 38 U.S.C.A. §§ 1110, 1111. ORDER Service connection for Legg-Perthe's disease of the left hip is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs