Citation Nr: 1333328	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  09-08 197	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
 
 
THE ISSUE
 
Entitlement to service connection for a left hip disability.
 
 
REPRESENTATION
 
Appellant represented by:  The American Legion
 
 
ATTORNEY FOR THE BOARD
 
J. Hager, Counsel
 
 
INTRODUCTION
 
The Veteran served on active duty from August 1966 to August 1968.
 
This matter initially came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that denied the Veteran's application to reopen his claim for entitlement to service connection for residuals of a left hip dislocation.
 
In July 2012, the Board granted the application to reopen and remanded the claim of entitlement to service connection for a left hip disability to the RO, via the Appeals Management Center (AMC).  For the reasons stated below, the RO/AMC complied with the Board's remand instructions.
 
In its July 2012 decision, the Board also remanded a claim for entitlement to compensation under 38 U.S.C.A. § 1151, but the AMC granted that claim in January 2013 and it is therefore no longer before the Board.
 
 
FINDING OF FACT
 
Clear and unmistakable evidence reflects both that a left hip disability including arthritis, fracture, and dislocation residuals preexisted service and that such disability was not permanently aggravated beyond its natural progression by service.
 
 
CONCLUSION OF LAW
 
Left hip disability was not incurred in or aggravated by service and arthritis may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2013).
 
 

REASONS AND BASES FOR FINDING AND CONCLUSION
 
Veterans Claims Assistance Act
 
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in April 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in April 2013.
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  As instructed by the Board in its July 2012 remand, the RO/AMC requested that the Veteran provide authorization and consent to release any treatment records from private physicians, but he did not respond.  The RO/AMC therefore complied with its duty to assist and the Board's remand instructions in this regard.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i),(ii) (requiring a claimant to cooperate fully with VA's efforts).  The RO/AMC obtained outstanding VA treatment records, it associated them with the Virtual VA file and an August 2012 VA examination.  For the reasons stated below, the examination was adequate and complied with the Board's remand instructions.
 
The Board will therefore proceed to the merits of the appeal.
 
Analysis
 
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  When, however, the evidence indicates that a disability for which a Veteran claims service connection preexisted service, the Board must consider the principles relating to the presumption of soundness.
 
Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  At his September 1965 induction examination, the Veteran's musculoskeletal system was normal and no hip abnormalities were noted.  The Veteran indicated in the September 1965 report of medical history that he had an inability to perform certain motions, specifically, he reported a limitation of movement caused by hip injury.  He stated that he had broken and dislocated his left hip at age 13.  In the physician's summary and elaboration of all pertinent data, it was noted that the Veteran had a painful left hip joint at age 13. 
 
Significantly, however, the term "noted" in 38 U.S.C.A. § 1111 refers to "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. § 3.304(b).  A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  38 C.F.R. § 3.304(b)(1).  As the comments in the September 1965 report of medical history reflect a history of preservice conditions recorded at the time of examination, and as the physician's summary appears to be a recounting of the Veteran's report of this history, the Board finds that no defects, infirmities, or disorders were noted at the time of entry into service.  Hence, the Veteran's left hip is presumed to have been in sound condition at service entry.
 
The presumption of soundness can only be overcome with clear and unmistakable evidence that an injury or disease preexisted service and clear and unmistakable evidence that the injury or disease was not aggravated by service.  Id.  The clear and unmistakable evidence standard requires that the result be undebatable.  Cotant v. West, 17 Vet. App. 116, 131 (2003).  In considering the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability, VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153).  Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened.  Beverly v. Brown, 9 Vet. App. 402, 406 (1996).  The cited statute and its implementing regulation, 38 C.F.R. § 3.306, provide that aggravation by service is presumed where there is an increase in disability during service, unless there is clear and unmistakable evidence that the increase is due to the natural progress of the disease.  For the following reasons, these high standards for rebutting the presumption of soundness have been met in this case.
 
In his written statements and statements made to health care providers, the Veteran has indicated that he injured his left hip prior to service and that his disorder worsened while in service because of strenuous physical activity, as indicated by the fact that he was deemed fit for duty at entry and was then later placed on a profile for the hip.
 
The service treatment records reflect that, in November 1966, several months following entry onto active duty, the Veteran complained of left hip pain especially after walking, lifting, etc.  It was indicated that the appellant had a history of a left hip fracture and dislocation in "1964."  There was no swelling or redness and examination revealed pain upon stress in his left hip joint.  A December 1966 orthopedic consult report indicated that the Veteran dislocated his left hip playing softball in "1954."  X-rays showed arthritic changes in the left hip.  On examination, there was full range of motion of the hip with pain in abduction in flexion and extension, and external rotation and extension and X-ray showing of flattened femoral head.  A December 1966 physical profile indicated that the Veteran had compression fracture of the left hip joint with flattened femoral bend with decreased angle neck/shaft and with arthritic changes.  A parenthetical notation indicated, "Bad hip joint secondary to old fracture and arthritis."  The restrictions were no crawling, stooping, running, jumping, prolonged standing or marching and no strenuous physical activity.  This physical profile was made permanent in January 1967.  

A January 1967 orthopedic consult sheet indicated that the Veteran fractured his left hip in a softball game in "1954" and had been having pain in the left hip since then.  It was noted that the Veteran had done better on limited profile but did have some discomfort on abduction and external rotation.  The author of the note indicated that the Veteran could complete two years, otherwise the disorder existed prior to service and a medical evaluation board would be necessary.
 
On the July 1968 separation examination, the lower extremities were noted as abnormal, with a summary of defects and diagnoses indicating limitation of outward rotation of leg and hip joints.  On the separation report of history, the Veteran indicated that his health was good with no swollen or painful joints, arthritis or rheumatism, bone, joint, or other deformity, or lameness.
 
During an October 1988 VA hospitalization the Veteran indicated that, at the age of 13, he fractured and dislocated his left hip.  This fracture was treated by closed reduction and traction, and he reported experiencing hip pain since then.  Additionally noted was that the Veteran had fallen in 1982, fracturing his pelvis, which was treated by nonsurgical means.  During hospitalization, the Veteran underwent a left total hip replacement.
 
During the course of VA outpatient treatment in December 2007, a VA orthopedic surgeon indicated that, according to the Veteran, at the time of his entry upon active military service, it was a "known fact" that he had a "bad hip."  Further noted was that the Veteran had been given a profile while he was in service for lighter duty.  According to the orthopedic surgeon, "the question is, is this problem with his hip service connected and I would suspect that it is." 
 
In June 2008, that same VA orthopedic surgeon wrote that he had been given the opportunity to review the physical profile assigned the Veteran in 1966. According to the physician, those records showed a profile which had been given the Veteran regarding limitations of activity while in the service.  Those limitations suggested that the Veteran should not participate in running, jumping, combat induction, or anything else which required pushing, pulling, or hard work. In fact, the limitations given consisted of some "very well written restrictions."  The orthopedic surgeon noted that the Veteran felt that his 1988 hip replacement was caused in part by his preexisting left hip problem that was made worse by the very strenuous inservice activity and, "The present medical history that he brings with him bears this out."
 
Based on the above evidence, the Board instructed that the Veteran be afforded  a new VA examination and one was conducted in August 2012.  The examiner indicated that she reviewed the claims file, she reiterated the history of a pre-service left hip injury to include a fracture and dislocation, with problems since that time.  She noted the 1988 hip replacement, and, after examination, diagnosed degenerative arthritis after fracture/dislocation, treated with hip replacement, with residual scars and pain.  The examiner opined that the Veteran's left hip disability preexisted his military service but did not undergo a clinically identifiable permanent increase in severity beyond natural progress during the Veteran's period of active service.  In her rationale, she noted the induction report of medical history and service treatment notes indicating the pre-service injury.  She also noted the November 1966 X-ray report indicating an old compression fracture with arthritis.  She observed that, based on recent medical data indicating that it takes at least six months to develop post-traumatic arthritis, this would indicate that the Veteran was already developing arthritis prior to service, as well as the physical profiles.  She also noted the fact that the Veteran was in service for only two years and that there were no notes of any in-service injury or notations in the records indicating permanent worsening of the left hip due to service.  Thus, the August 2012 VA examiner opined that based on clear and unmistakable evidence indicating onset of a left hip disorder prior to active duty, lack of evidence of worsening due to service, and medical knowledge, she concluded that the current left hip condition did not have its onset during service or any permanent worsening by active duty.
 
All of the above evidence, including the Veteran's statements, indicate that he had a left hip disorder prior to service.  The Board therefore finds that there is clear and unmistakable evidence that a left hip injury preexisted service.  As to the nature of the disorder caused by the preservice left hip injury, the Veteran himself indicated it was broken and dislocated, service treatment records indicated old fracture, and the only medical opinion on this question, that of the August 2012 VA examiner, indicated that the Veteran was developing left hip arthritis prior to service.  The Board therefore finds clear and unmistakable evidence of dislocation, fracture, and arthritis of the left hip prior to service.
 
Hence, the only remaining question with regard to the presumption of soundness is whether clear and unmistakable evidence indicates that the preexisting disorder was not aggravated by service.  There is nothing in the service treatment records that indicate whether or not the left hip worsened.  As noted by the Veteran, he was found fit to enter service and was later placed on physical profile, but nothing in the profile related documents or the service treatment records indicate whether or not the preexisting left hip disability increased in severity.  There is no indication of a specific in-service trauma, and the Veteran's own statement at entry that he had limitation of movement caused by hip injury was similar to his notation on the separation examination that there was limitation of outward rotation of leg and hip joints.  The Board cannot render its own independent medical judgments and therefore must, in the absence of an explicit indication in the contemporaneous evidence of worsening or increase in severity, rely on a medical opinion.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
 
There are two relevant medical opinions on this question.  The VA orthopedic surgeon in December 2007 indicated that he "suspected" that the Veteran's current hip problem was related to service.  Such an opinion is too speculative in nature to provide a medical nexus.  Cf. Bloom v. West, 12 Vet. App. 185, 187 (1999).  The other opinion was offered in June 2008, and it is evident that the examiner did not consider all of the evidence.  For example, the doctor fails to address the fact that there is no evidence in-service which suggests a permanent worsening.  Indeed, even in December 1966 while the appellant had pain, he has reported that he has had pain since the fracture at age 13, and physical examination in December 1966 showed a full range of left hip motion. 

In contrast, the August 2012 VA examiner found a lack of worsening of the preexisting left hip disability.  She cited multiple pieces of medical evidence in support of this conclusion, including medical studies indicating that arthritis was developing prior to service, the relative brevity of the period of service, and lack of notation of injury or notations indicating worsening.  In weighing these medical opinions, the Board finds the reasoning of the August 2012 VA examiner to be more thorough.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  The VA examiner cited more extensively from the evidence and offered more detailed reasons explaining why there was no worsening of the left hip disability during service than did the VA orthopedic surgeon for his conclusion to the contrary.  The Board therefore finds the August 2012 opinion to be of greater probative weight and the medical evidence therefore weighs against any worsening of the preexisting left hip disability beyond its natural progression during service.
 
The Board must also consider the Veteran's lay statements indicating that his left hip worsened during service as indicated by the fact that he was placed on a physical profile.  The Veteran is competent to testify to his observations and his testimony is consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  The question of whether his left hip disability permanently worsened beyond its natural progression, however, is the type of complex medical matter as to which lay testimony is not competent.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  In any event, to the extent that the Veteran is competent to opine on this question, his opinion, which was echoed by the VA orthopedic surgeon, is not as thoroughly reasoned as that of the August 2012 VA examiner and is therefore entitled to less probative weight.
 
As the evidence clearly and unmistakably indicates that the Veteran's left hip disability, to include arthritis, fracture, and dislocation, preexisted service and was not aggravated thereby, the presumption of soundness has been rebutted.  As this evidence also clearly and unmistakably reflects that the Veteran's preexisting left hip disability was not in fact aggravated by service, and that the current left hip disability is therefore unrelated to service, entitlement to service connection for a left hip disability is not warranted.  See Wagner, 370 F.3d at 1096 ("If this burden [of rebutting the presumption of soundness] is met, then the veteran is not entitled to service-connected benefits").
 
The Board notes that, while arthritis is a chronic disease presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service, this presumption is rebuttable with affirmative evidence to the contrary.  Here there is such evidence in the form of the preexisting left hip injury and medical opinion that traumatic arthritis was developing prior to service.  38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113(a); 38 C.F.R. §§ 3.307(a), 3.309(a).
 
 
ORDER
 
Entitlement to service connection for a left hip disability is denied.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs