Citation Nr: 1616884 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 07-18 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to an initial compensable rating for a skin rash. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran had active service from September 1974 to September 1984. The Veteran also had service in February 1992 during a period of inactive duty for training (INACDUTRA) in which service-connected disabilities were established. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. This case was most recently before the Board in July 2015. In April 2011, the Veteran presented testimony at a Board videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims folder. The Board notes that in April 2015 the Veteran revoked the power of attorney from a service organization that he previously appointed and stated that he would represent himself. Thus the Veteran is currently a pro se claimant. In February 2016, the Veteran raised the issue of service connection for a right leg disability, to include a right knee disability and the Board refers this matter to the RO for appropriate action. The claim of entitlement to an initial compensable rating for skin rash is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Right hip arthritis is related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for right hip arthritis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for right hip arthritis, VA's duties to notify and assist are deemed fully satisfied, and there is no prejudice to the Veteran in proceeding to decide this issue. Applicable Laws and Analysis for service connection claims Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Service connection for certain specified chronic diseases may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. Active military, naval, or air service includes active duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). It also includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. An individual who has served on active duty is a Veteran while an individual who has served only on ACDUTRA and/or INACDUTRA must establish a service-connected disability in order to achieve Veteran status. Paulson v. Brown, 7 Vet. App. 466 (1995). 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). Analysis At his April 2011 Board hearing the Veteran appeared to indicate that his right hip arthritis was related to frostbites he incurred while serving in Germany. Service treatment records from the Veteran's period of active service from September 1974 to September 1984 reveal no complaints related to a right hip disability. A February 1992, DA Form 2173, Statement of Medical Examination and Duty Status, indicated that on February 22, 1992, the Veteran slipped on ice and fell, resulting in low back and groin pain. It was noted that the injury occurred during a period of inactive duty for training (INACDUTRA) in February 1992. In October 1996 VA granted the Veteran service connection for low back and groin disability based on the February 1992 fall injury. An October 1992 medical record reflects that the Veteran was assessed with adductor tendonitis and possible trochanteric bursitis. An October 1992 bone scan revealed no right hip abnormality. A November 1992 Medical Board summary noted no right hip abnormality. An August 1994 Medical Evaluation Board noted mechanical low back pain and chronic groin pain secondary to adductor tendonitis. The Veteran complained of arthritis of the right hip. A March 1996 VA examiner stated that the Veteran had chronic right hip strain, and VA X-rays from March 1996 revealed an impression of right hip acetabular sclerosis. An October 1997 VA medical record noted that the Veteran had right hip osteoarthritis. VA examiners in July 1999 and November 2013 found no right hip disability. A December 2014 private medical record noted right hip osteoarthritis, and February 2015 and January 2016 VA X-rays noted right hip osteoarthritis. A November 2015 VA physician indicated that the Veteran had right hip osteoarthritis but stated that it was not likely that the Veteran's right hip arthritis was related to his military service. While a chronic right hip disability was (arguably) not demonstrated in service, the Veteran was assessed in an October 1992 medical record with adductor tendonitis and possible trochanteric bursitis as a result of his February 1992 service training injury. Further, while diagnostic evidence of right hip arthritis has seemingly and unexplainably appeared (March 1996, October 1997, December 2014) and then disappeared (July 1999, December 2013), the Veteran's complaints of right hip pain have continued consistently since the February 1992 injury. While the November 2015 VA opinion of record is not favorable to the Veteran, the Board observes that the November 2015 VA examiner did not adequately discuss the Veteran's credible and documented reports of inservice and post-service continuous symptoms of right hip pain. Accordingly, given the Veteran's February 1992 inservice injury and his competent and credible lay statements of right hip pain in and since service, the Board is unable to dissociate the Veteran's current right hip osteoarthritis from his active service. Resolving doubt in the Veteran's favor, service connection for right hip osteoarthritis is warranted. 38 U.S.C. § 5107(b). ORDER Service connection for right hip osteoarthritis is granted. REMAND In July 2015 the Board granted the Veteran service connection for a skin disability. In implementing the Board's decision, an August 2015 RO decision assigned a noncompensable rating for skin rash, effective February 23, 2006. In February 2016 the Veteran submitted a statement, construed as a notice of disagreement, with medical evidence indicating that he requested a higher rating for his skin rash. Where a notice of disagreement has been filed, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case which addresses the issue of entitlement to an initial compensable rating for a skin rash. Notify the Veteran of his appeal rights and that he must perfect an appeal if he wants Board review of the claim. 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 2014). ______________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs