Citation Nr: 1337529 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-24 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the left hip to include as secondary to service-connected degenerative joint disease/degenerative disc disease of the lumbosacral spine. 2. Entitlement to a temporary total disability rating based on a June 2009 total hip replacement requiring a period of convalescence. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran served on active military duty from March 1966 to November 1970 and September 1987 to January 2005. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. The Board notes that the Veteran initially filed a claim for entitlement to service connection for degenerative joint disease of the left hip in March 2008. The RO issued a rating decision with respect to the claim in August 2008. The Veteran again filed a claim in July 2009. As this claim was filed less than one year after August 2008, the rating decision did not become final and the Veteran's July 2009 claim is a continuation of the prior claim. 38 U.S.C.A. § 7105 (West 2002). FINDINGS OF FACT 1. Probative lay and medical evidence indicates both that the Veteran's currently diagnosed degenerative joint disease of the left hip manifested during his period of active military service and that there was ongoing symptomatology since service. 2. Treatment of the Veteran's service-connected degenerative joint disease of the left hip resulted in surgery necessitating at least one month of convalescence. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the left hip have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304; 3.307, 3.309 (2013). 2. The criteria for entitlement to a temporary total disability rating for degenerative joint disease of the left hip under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a June 2009 hip replacement have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2013). As the Board is granting the claims of service connection for degenerative joint disease (DJD) of the left hip and for a temporary total disability rating, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Entitlement to Service Connection for DJD of the Left Hip The Veteran argues that his DJD of the left hip had onset in service. The Veteran also argues that his DJD of the left hip is due to his service-connected lumbosacral spine disorder. The Board finds entitlement to service connection based upon ongoing symptomatology and therefore does not address the Veteran's argument concerning secondary service connection. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303(d). In addition, chronic conditions such as DJD/arthritis may be presumed to have been incurred during service if they first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown 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). Lay evidence may not be categorically dismissed as not competent regarding questions of medical etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For example, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). A layperson is not competent, however, to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In his notice of disagreement, the Veteran states that during the 1990's, he had pain on his left side during service. In the 1990's, the Veteran complained of left hip pain and was prescribed medicine by a military doctor. However, the Veteran reports that he was not provided with a diagnosis concerning his hip. He states that the pain on his left side had been worsening since 2000. Although the pain in his back was centered on the right side, the pain in his hip was centered on the left side. The Veteran also reports that he had pain in his left groin. Service treatment records reflect that the Veteran's August 1987 enlistment examination noted no abnormalities of the hip and found the Veteran qualified for service. In April 1995, the Veteran reported lower back pain that radiated down his right leg. In April 1998, the examiner noted early DJD of the hip. December 2002 treatment records recorded that the Veteran had been treated for left hip pain for six to eight months, but stated that the problem had not been diagnosed. The September 2004 retirement examination included notes of knee and back complaints, but did not include complaints concerning the hip. VA treatment records include a March 2008 X-ray showing degenerative changes of the left hip. An April 2009 examiner diagnosed DJD and recorded complaints of hip pain. The July 2008 VA examiner recorded the Veteran's complaints of pain in his left hip for a number of years. The examiner expressed a negative opinion concerning secondary service connection. Private treatment records from the Veteran's surgeon show that the Veteran had a left total hip replacement in June 2009. The post-operative diagnosis was severe degenerative arthritis of the left hip. The surgeon also submitted an opinion in July 2009. He considered the Veteran's service treatment records and noted separation from service in January 2005. Based upon the fact that the Veteran had arthritis of the hip that was extensive enough to require remodeling of the femoral head and acetabulum and was manifested by large cystic formations, the surgeon opined that it was highly likely that the Veteran had a hip problem prior to his separation from service. The December 2009 VA examiner, a physician assistant, found no chronic condition of the left hip shown in service treatment records. In particular, the examiner noted that an early orthopedic note did not specify which hip showed signs of DJD. Additionally, the examiner found that there had not been enough information to make a diagnosis of DJD in service. The examiner also stated that it was his opinion that the July 2009 private report was speculative. The examiner therefore could not resolve the issue of whether or not the Veteran's left hip DJD is related to service or to his service-connected lumbosacral spine disorder without resorting to mere speculation. The Board finds that the Veteran has established entitlement to service connection for his left hip DJD. First, the record, including the June 2009 post-operative diagnosis of severe degenerative arthritis, clearly reflects that the Veteran has a current disability. Shedden v. Principi, 381 F.3d at 1167. Second, the Board finds that the Veteran had left hip symptoms that began in service. The Veteran is presumed sound in this case because there was no notation upon entrance of any abnormalities of the hip. 38 C.F.R. § 3.304(b). Service treatment records reflect a diagnosis of DJD of one of the hips in April 1998 and complaints of left hip pain in December 2002. The Veteran reports complaints of pain in his left hip during service in the 1990's and 2000's. The Veteran is competent to report symptoms that he experienced. Jandreau v. Nicholson, 492 F.3d at 1377. The Board also finds that these complaints of pain are credible because they are supported both by service treatment records and by consistency among the Veteran's statements. Additionally, the Board gives weight to the private surgeon's opinion that it was highly likely that the Veteran had a hip problem prior to his separation from service. The surgeon, as an expert, is competent to express this opinion. 38 C.F.R. § 3.159(a)(1)(2013). The Board finds that his opinion is credible because it is based upon both observation during surgery and the Veteran's medical history including review of service medical records. The December 2009 VA examiner, a physician assistant, could not express an opinion concerning the onset of the Veteran's left hip DJD. While the VA physician's assistant stated that it was his opinion that the July 2009 private surgeon's report was speculative, he did not provide a basis for this opinion. The Board gives greater weight to the surgeon's opinion than to the opinion of the December 2009 VA examiner due to the surgeon's superior credentials. Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). The evidence as a whole therefore establishes that the Veteran had symptoms of left hip DJD that began in service. 38 C.F.R. § 3.303(b). Finally, the Board finds that the Veteran's symptoms continued since discharge from service in January 2005. The Veteran describes worsening hip pain since 2000. Again, the Veteran is competent to report his symptoms. Jandreau v. Nicholson, at 1377. Additionally, the Board finds that he is credible based upon the consistency of his statements with each other. The Veteran reported to the July 2008 VA examiner that he had had pain in his hip for a number of years. VA treatment records included an X-ray demonstrating degenerative changes in 2008. Finally, the surgeon opined that it was likely that the Veteran's hip symptoms began in service. Based upon the evidence as a whole, the Board finds that the Veteran has demonstrated ongoing symptomatology since discharge from service in January 2005. 38 C.F.R. § 3.303(b). The Board finds that the Veteran is entitled to service connection for left hip DJD. Entitlement to Temporary Total Disability The Veteran contends that he is entitled to a temporary total disability rating based on a June 2009 private surgery necessitating a period of convalescence. A total disability evaluation will be assigned when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. As previously discussed, the Board finds that the evidence shows entitlement to service connection for his left hip DJD. The record reflects that the Veteran had a total hip replacement in June 2009. Upon discharge, the Veteran's surgeon noted that he was totally disabled and would be out of work for approximately eight weeks until August 2009. Based upon this evidence, the Board finds that the Veteran's treatment required surgery necessitating at least one month of convalescence. The Board finds that the Veteran has established entitlement to a temporary total disability rating from June 2009 to August 2009. 38 C.F.R. § 4.30. ORDER Entitlement to service connection for left hip degenerative joint disease is granted. Entitlement to a temporary total disability rating from June 2009 to August 2009 for convalescence based on surgical treatment of the left hip is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs