Citation Nr: 1320335 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-11 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right hip. 2. Entitlement to service connection for degenerative joint disease of the left hip. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that, in pertinent part, denied service connection for a left hip condition and a right hip condition. In September 2012, the Veteran presented sworn testimony during a Travel Board hearing in Portland, Oregon, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. This appeal also stems from the RO's decision to decline reopening a claim for service connection for a low back disorder. In November 2012, the Board reopened the Veteran's previously denied claim for service connection and remanded the claims for service connection for a low back disorder, a right hip disorder, and a left hip disorder to the Appeals Management Center (AMC) for further evidentiary development, including obtaining updated VA treatment records and providing the Veteran with a VA examination for his low back and hips. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records and provided the Veteran with a VA examination for his low back and hips in December 2012. Accordingly, all remand instructions issued by the Board have been complied with and these matters are once again before the Board. Subsequent to the Board's remand, the AMC granted service connection for a low back disorder in an April 2013 rating decision. This is considered a full grant of the benefits on appeal for the low back claim. As such, the claim of entitlement to service connection for a low back disability is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The April 2013 rating decision also granted service connection for chronic right hip muscle strain (extension) and chronic right hip muscle strain (limitation). The AMC considered these grants of service connection to be a full grant of the benefits on appeal for the Veteran's right hip claim. However, as the Veteran has also been diagnosed with degenerative joint disease of the right hip and the grant of service connection did not address this diagnosis, the appeal remains before the Board with regard to this diagnosis. The Board notes that the Veteran submitted VA treatment records in May 2013 without a waiver of review by the agency of original jurisdiction (AOJ). However, these VA treatment records are duplicative of VA treatment records already of record. The Veteran's claims are also being granted in full. Therefore, a remand is not necessary to allow to AOJ to consider this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2012). (CONTINUED NEXT PAGE) FINDINGS OF FACT 1. The Veteran's currently diagnosed degenerative joint disease of the right hip is the result of his service-connected bilateral knee and low back disabilities. 2. Veteran's currently diagnosed degenerative joint disease of the left hip is the result of his service-connected bilateral knee and low back disabilities. CONCLUSIONS OF LAW 1. Degenerative joint disease of the right hip was incurred in or aggravated by a service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. Degenerative joint disease of the left hip was incurred in or aggravated by a service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. 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. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) The claims for service connection for degenerative joint disease of the right and left hips have been granted, as discussed below. Any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims The Veteran alleges that his e currently suffers from bilateral hip disabilities as a result of his active service and/or his service-connected orthopedic disabilities. Specifically, he claims that his service-connected orthopedic disabilities prevent him from exercising, resulting in obesity. He claims that the resulting obesity has caused his current bilateral hip disabilities. Alternatively, he reports that he suffered a left hip injury while playing basketball in service and his service treatment records show treatment for right hip pain. He claims that these alleged injuries may have resulted in his current right and left hip disabilities. Thus, he believes that service connection is warranted on either a direct or secondary basis. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2012); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Initially, the Board acknowledges the Veteran's assertion, referenced above, that his bilateral hip degenerative joint disease may be directly related to in-service injuries. Specifically, he contends that his injured his right and left hips playing basketball in service. However, the medical evidence supports a grant of service connection for degenerative joint disease of the right and left hips on a secondary basis, as discussed in detail below. Any discussion of direct service connection for the right and left hips is irrelevant. A review of the medical evidence reveals that the Veteran has been diagnosed with degenerative joint disease of the bilateral hips. As such, the first element of Wallin is met. The Veteran is service connected for a low back disorder, chondromalacia patella of the left knee, and degenerative joint disease of the bilateral knees. Therefore, the second element of Wallin is met. The remaining question is whether a medical nexus exists between the Veteran's service-connected orthopedic disabilities and his current degenerative joint disease of the bilateral hips. The Veteran was afforded a VA examination in December 2012 to determine the etiology of his bilateral hip disabilities. At that time, the examiner diagnosed the Veteran with a right hip muscle strain and bilateral hip degenerative joint disease. He concluded that the Veteran's bilateral hip degenerative joint disease was less likely related to his active service or service-connected knee disabilities. Rather, he opined that the Veteran's bilateral hip degenerative joint disease was at least as likely as not related to his body habitus - obesity. He further concluded that the Veteran's body habitus was directly related to his inactivity, which was the result of the pain caused by his service-connected low back and knee disabilities. He explained that the Veteran had a normal body mass index (BMI) on separation from service and that his BMI increased in conjunction with his increased complaints of knee and back pain. Thus, he believed that increased knee and back pain was associated with decreased activity, resulting in obesity. As the examiner found that the Veteran's obesity was caused by his service-connected orthopedic disabilities and, in turn, caused his bilateral hip degenerative joint disease, the Board finds that this establishes a medical nexus between the Veteran's service-connected disabilities and his bilateral hip degenerative joint disease. The December 2012 VA examiner's opinion was corroborated by two prior VA examinations, dated in May 2001 and October 2008, that also concluded that the Veteran's obesity caused his bilateral hip problems. Although those examiners did not link the Veteran's obesity to his already service-connected orthopedic disabilities, the December 2012 VA examiner did provide that link. In light of the positive December 2012 VA examiner's opinion linking the Veteran's service-connected orthopedic disabilities and resulting obesity with his bilateral hip degenerative joint disease and the lack of contradictory medical evidence, the Board finds that the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current bilateral hip degenerative joint disease is related to his service-connected low back and bilateral knee disabilities. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claims for service connection for degenerative joint disease of the right hip and degenerative joint disease of the left hip are granted on a secondary basis. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for degenerative joint disease of the right hip is granted on a secondary basis. Entitlement to service connection for degenerative joint disease of the left hip is granted on a secondary basis. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs