Citation Nr: 1315424 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-40 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for right hip lymphoma, status post hip replacement, to include as secondary to service-connected chondromalacia of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran filed a notice of disagreement (NOD) with this determination in January 2009, and timely perfected his appeal in October 2009. FINDING OF FACT The evidence demonstrates it is likely that the Veteran's diagnosed right hip lymphoma, status post hip replacement, is aggravated by his service-connected chondromalacia of the left knee. CONCLUSION OF LAW The criteria for a grant of service connection for right hip lymphoma, status post hip replacement, as secondary to service-connected chondromalacia of the left knee, have been met. 38 U.S.C.A. §§ 1110, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection may 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307 , 3.309 (2012). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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 v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 to the Veteran. Right Hip Disability Due to the favorable decision in the case below, a discussion for a grant of service connection on a direct basis is not necessary. 38 C.F.R. § 3.303. The Veteran contends that he is entitled to service connection for right hip lymphoma, as secondary to his service-connected chondromalacia of the left knee. Specifically, the Veteran contends that his left knee disability aggravated his right hip condition. VA outpatient treatment records note a right hip replacement and complaints of right hip pain. In a February 2008 letter, the Veteran's private treating orthopedist noted that the Veteran was under his care for tumorous involvement concerning his right hip. He had undergone a bipolar hemiarthroplasty on the right side, which was well fixed radiographically. He had severe osteoarthritis of his left knee and was service-connected for this. It was the physician's opinion that the severe osteoarthritis of his left knee caused increased stress on his right hip. The Veteran's right hip replacement was noted to be stable. In a December 2008 statement, the Veteran reported that he supplied his private physician with information from the VA hospital, x-rays, and doctor reports, to further help him in preparing an opinion discussing the affect of his knee condition on his right hip. In a December 2008 letter, the Veteran's private treating physician again stated that the Veteran had been under his care for a fracture and lymphoma involving his right hip. The question had arisen whether or not osteoarthritis of the knees with limp could result in worsening symptoms of right hip pain. It was the physician's opinion satisfactory to himself and to a reasonable medical certainty that this was the case. He did not feel that the osteoarthritis and subsequent replacement of his left knee were causative of his hip problem, but certainly worsened his current symptomatology. The November 2009 VA examination report to determine the current severity of the Veteran's knee disabilities noted that the Veteran had a right total hip replacement. The examiner stated that the Veteran's left knee arthroplasty meant that the Veteran had to shift more weight to the right side, resulting in more damage. The Veteran was afforded a VA examination in December 2009. The Veteran reported that he broke his right hip in early 2000, due to non-Hodgkin Lymphoma, and had a total hip replacement done. He also underwent a total knee replacement in February 2008, and was diagnosed with right knee arthritis. He reported that his right hip worsened since the February 2008 surgery. After examining the Veteran, the examiner noted that the Veteran had a right total hip replacement. The examiner also documented the December 2008 private physician letter. The examiner concluded that given the private physician statement, as well as the natural history of hip replacement, he could not resolve this issue without resort to mere speculation. The reason he could not resolve this issue without to resorting to mere speculation was that the Veteran could be experiencing increased pain in his right hip secondary to a variety of reasons, including loosening or mechanical failure of the prosthesis. Currently, the Veteran put more weight on his left side than his right. It was difficult to ascertain how much weight the Veteran was putting on his right side secondary to increased pain from his left total knee replacement. The Veteran testified at a March 2011 RO hearing about the worsening of his right hip symtomatology due to his service-connected left knee condition. The Veteran reported that after the February 2008 left knee operation, an infection occurred, which caused the left knee replacement to not progress as it should. This required him to put more stress and weight on the right side, and it was immediately evident that his hip was starting to deteriorate from the pain and instability he was starting to feel. He also reported that in February 2010, his knee prosthesis was taken out, which again required him to use the right leg as the dominant leg. Additionally, he stated that his right hip was affected by his altered gate and the approximately two inches difference in leg length. In light of the evidence, the Veteran is entitled to service connection for right hip lymphoma, status post hip replacement as secondary to his service-connected chondromalacia of the left knee. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). There are no medical records refuting the Veteran's diagnoses of right hip lymphoma, status post hip replacement. The Board notes that the December 2009 VA examiner concluded that he could not resolve the issue of whether the Veteran's right hip replacement was aggravated by his service-connected left knee condition without to resorting to mere speculation, as he could be experiencing increased pain in his right hip secondary to a variety of reasons, including loosening or mechanical failure of the prosthesis. However, multiple medical and lay documentations in the record noted that the Veteran's left knee arthroplasty caused him to shift more weight to his right side. Additionally, the Veteran's private treating physician stated in February 2008 and December 2008 letters that it was his opinion satisfactory to himself and to a reasonable medical certainty that the Veteran's osteoarthritis of the knees with limp resulted in worsening symptoms of the right hip. The Veteran reported that he supplied his physician with VA hospital, x-rays, and doctor reports, to further help him in preparing an opinion as to the affect of his service-connected left knee condition on his hip replacement. The Board finds the private opinions credible as they were based on a history of treatment and familiarity with the Veteran and his condition. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's right hip disability claim. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for a right hip lymphoma, post hip replacement, as secondary to service-connected chondromalcia of the left knee, is warranted. ORDER Service connection for right hip lymphoma, status post hip replacement, as secondary to service-connected chondromalacia of the left knee, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs