Citation Nr: 1342149	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  05-01 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for right hip disability, to include as secondary to service-connected left femur disability.

2.  Entitlement to service connection for left hip disability, to include as secondary to service-connected left femur disability.


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from September 1969 to September 1973.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  This case was most previously before the Board in January 2013.

The Veteran is unrepresented in this claim.

The issue of entitlement to service connection for left hip disability, to include as secondary to service-connected left femur disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

A private examiner has essentially indicated that the Veteran's right hip bursitis is chronically worsened by service-connected disability.


CONCLUSION OF LAW

Right hip disability is aggravated by service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. 38 C.F.R. §§ 3.303, 3.310(a) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable Board decision below to grant the claim for service connection for right hip disability, any deficiency as to compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot.

Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also 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).

Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation.  Allen.

The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, was amended during the pendency of this appeal, effective October 10, 2006.  The 38 C.F.R. § 3.310 (b) sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Given what appear to be substantive changes, and because the Veteran's claim (received in October 2003) was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

The Veteran's service-connected disabilities include the residuals of a left femur fracture.  VA and private examinations have indicated that the Veteran has a diagnosis of right hip bursitis.

The Board finds that the competent medical evidence is at least in equipoise as to whether the Veteran's right hip disability is chronically worsened by service-connected left femur disability.  In this regard, the Board notes that a December 2011 private examiner indicated that the Veteran's left knee was altering the way the Veteran walked and was very likely causing right hip problems, including right hip pain.  The Board can find no opinion to the contrary, and, based on the foregoing, and with resolution of doubt in the Veteran's favor, the Board finds that the evidence of record supports a grant of service connection for right hip disability on the basis of aggravation by service-connected left femur disability.

The Board finds that the competent medical evidence fails to demonstrate that the Veteran's right hip disability is causally related to his service.  The Board notes that no health professional has asserted as such, and service records contain no complaints or diagnoses of right hip disability.  In the same manner, the Board can find no opinion linking or showing a causal relationship between right hip disability and the Veteran's service-connected left femur disability.

While the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge, such as experiencing right hip pain, the Veteran simply does not have the necessary medical training and/or expertise to opine whether he has right hip disability related to service or to service-connected left femur disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Whether one joint (in other words, the Veteran's left femur) can cause pathology in another joint (in this case, the right hip) is not a question that can be determined by mere observation and is not a simple question.  For these reasons, the Board finds that his opinion in this regard is not competent evidence and therefore not probative of any fact in this case.

In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, and has resolved doubt in the Veteran's favor in this case.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for right hip bursitis, on the basis of aggravation by service-connected disability, is granted.


REMAND

The Veteran seeks service connection for left hip disability, to include as secondary to service-connected left femur fracture disability.

In August 2013 the Veteran underwent a VA examination that was to address the medical matters raised by this appeal.  The examination did not address the matter as to whether the Veteran's left hip disability was aggravated (worsened) by his service-connected left femur fracture disability.  The Board notes that the January 2013 remand instructions included a request that the examiner provide such an opinion.

Based on the foregoing, the Board finds that the Veteran should be afforded a VA examination that addresses the medical matters raised by this appeal.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should furnish the Veteran's claims file to the examiner who conducted the August 2013 VA examination.  The examiner must be provided the Veteran's claims file for review.  Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any left hip disability that is aggravated (made worse) by service-connected left femur disability.  If it is necessary to reexamine the Veteran in order to provide the requested opinion, that should be accomplished.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.

If the August 2013 VA examiner is not available, the AOJ should request another qualified examiner to review the claims file (and schedule another examination, if necessary) and provide the requested opinion.

2.  The AOJ should then, based on all the evidence of record, readjudicate the issue on appeal.  If the benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and his representative (if any) should be afforded the appropriate period to respond.  Thereafter, the case should be returned to the Board, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs