Citation Nr: 1643346 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 10-26 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1993 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine which denied entitlement to service connection for a right iliotibial band syndrome (claimed as pain in the right hip and leg). The Detroit, Michigan RO has assumed the role of Agency of Original Jurisdiction (AOJ). During the course of the appeal, by a May 2014 RO rating decision, service connection for right lower extremity radiculopathy was granted. This represented a full grant of the benefit sought. As such, the issue of entitlement to service connection for a right hip disorder will be considered exclusive of any right lower extremity radiculopathy. VA treatment records have been associated with the claims file since the most recent May 2014 supplemental statement of the case. The Veteran's representative provided a waiver of initial RO consideration for the new evidence submitted in a correspondence dated September 8, 2016. See 38 C.F.R. §§ 20.800, 20.1304 (2015). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a right hip disorder that is etiologically related to a disease, injury, or event which occurred in service, or that was caused by or aggravated by his service-connected low back disability. CONCLUSION OF LAW Service connection for the Veteran's right hip disorder is not warranted on a direct or secondary basis. 38 U.S.C.A. § 1110, 1111 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated January 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a Veteran in the development of the claim. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded VA examinations in connection with his claim in January 2009 and October 2010 which are adequate upon which to base a determination. The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). To prevail on the issue of service connection, there must be (1) medical 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) medical 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). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744 -52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis The Veteran essentially asserts that his service-connected low back disability has caused or aggravated his right hip disorder. See e.g., Veteran's claim received October 10, 2008. Specifically, the Veteran contends that his low back disability caused nerve damage which resulted in his current hip condition(s). The Veteran has several right hip disorders diagnosed during the pendency of his appeal including tendonitis of the right gluteus medius tendon, iliotibial band syndrome (of the right leg) and radiculopathy (of the right lower extremity). See VA examinations dated January 2009, June 2012 and January 2013. As an initial matter, as noted, a May 2014 RO rating decision granted service connection for radiculopathy of the right lower extremity. As such, radiculopathy of the right lower extremity is not for consideration in the analysis below. The Veteran is currently service connected for a low back disability. Therefore, the question to be addressed is whether there is a nexus between the service-connected low back disability and the remaining current right hip disorders. VA treatment records reflect that the Veteran had complaints of hip pain radiating from his back from 2008 to the present. See August 2, 2008 VA treatment record. The January 2009 VA examiner provided a negative nexus opinion. The Veteran was diagnosed with right iliotibial band syndrome which did not include nerve dysfunction. The VA examiner explained that there was no clinical relationship between the Veteran's development of iliotibial band syndrome and his old healed endplate compression deformity of L2 (low back condition). In the Veteran's notice of disagreement received in April 2009, he felt that the January 2009 VA examination was inadequate as the examiner was argumentative and failed to consider his height and weight or his complaints regarding his right hip pain from VA treatment records. The Veteran clarified that he had never had any hip or leg problems until 2007. The pain started in his spine, radiated through his right buttocks into his right hip, and traveled down to his right leg through his calf muscle, all of which was reported to his examiner and treating VA medical professional. The October 2010 VA examiner provided a negative nexus opinion. The Veteran was diagnosed with tendonitis of the right gluteus medius tendon. The VA examiner rationalized that the Veteran was not seen for, nor treated for, a hip condition while on active duty military service. The Veteran began having problems with his right hip in 2007, approximately 10 years after discharge. A Magnetic Resonance Imaging (MRI) of the back showed no nerve impingement (which would cause radicular symptoms); rather, it showed tendonitis of the right gluteus medius tendon. The examiner stated that this condition did cause hip and buttock pain and it was a separate hip condition, not related to the back. A private right hip MRI requested by VA was completed in November 2010. It revealed tendonitis of the right gluteus medius tendon with no tear seen. There was no hip joint effusion, avascular necrosis or healing fracture seen. No opinion regarding the etiology of the condition was provided. The Board finds that the preponderance of the evidence is against a finding that the Veteran's right hip disorder had its onset in service, is otherwise related to his period of service, and/or is secondary to his service-connected low back disability. The Board finds the 2010 VA examination report to be highly probative, as it was based on a thorough review of the Veteran's medical records, evaluation of the Veteran, and cites to relevant medical principles. There is no indication that the VA medical professional ignored or misstated any relevant fact. Rather, the examiner's opinion is consistent with the contemporaneous evidence, is based upon the evidence of record, and is supported by a complete rationale that addresses secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124. Notably, there is no opposing medical opinion of record which suggests or shows that the Veteran's current right hip disorder had its onset during service or is secondary to his service-connected low back disability. The Board has considered the lay statements of the Veteran asserting his service-connected low back condition caused his right hip condition. The Board notes that although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, a relationship between a low back disability and a right hip disorder, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer), see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Although the Veteran has not asserted (nor does the evidence of record show) his right hip disorder began during service, the Board will briefly address direct service connection. The STRs do not support a link between service and a right hip disorder. The STRs are absent complaints, treatment or diagnosis of a right hip disorder. Significantly, the Veteran's December 1997 exit examination provided no indication of any abnormalities regarding the right hip or lower extremities. In the associated report of medical history, the Veteran endorsed multiple ailments including swollen or painful joints. However, the right hip was not mentioned by the Veteran and the physician's summary of all pertinent data clarified that the Veteran actually denied swollen or painful joints. As such, the STRs do not support a link between the right hip disorder and service or his service connected low back disability. The Veteran specifically reported that his hip pain did not begin during service, but began in approximately 2007 (10 years post-service). Further, there is no favorable medical nexus opinion of record which supports a direct medical link between the current right hip diagnosis and the Veteran's period of service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for a right hip disorder is not warranted on a direct or secondary basis. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected low back disability, is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs