Citation Nr: 1753124 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-00 280A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran had active service from January 1985 to December 1987, from August 1990 to June 1991, and from October 2003 to December 2003. The Veteran also served with the Army Reserve for periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) until 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case has since been transferred to the RO in Atlanta, Georgia. In August 2014, the Veteran presented testimony at a hearing before the undersigned Veterans Law Judge in St. Petersburg, Florida. A transcript of that hearing is associated with the Veteran's VBMS file. The Board remanded this matter in November 2014 and November 2016 for further development. The RO has completed the requested development and returned the matter to the Board for appellate review. FINDING OF FACT A right hip condition was not documented in service or within one year thereafter; and, the evidence does not support a finding that the Veteran's right hip condition was caused by or is otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letter sent from the RO to the Veteran dated in July 2008. With respect to the duty to assist, the RO has obtained the Veteran's available service treatment records (STRs), service personnel records, VA outpatient treatment records, private medical evidence as authorized by the Veteran, and VA examinations. The RO has attempted to obtain certain missing STRs and provided memoranda as to their unavailability and informed the Veteran of the results. Moreover, the Board observes that the Veteran's claims are ultimately being denied based on the lack of a medical nexus between his service and his current disability, not solely on a lack of evidence of in-service disability of his right hip. Hence, the lack of a complete copy of his STRs is not prejudicial in the instant case. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Under the circumstances, the Board finds that there has been substantial compliance with its remand request that the RO document its efforts to obtain the Veteran's missing STRs, as well as to obtain VA examinations for the Veteran. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). In response to the Board remands in November 2014 and November 2016, the claim for entitlement to service connection for a right hip condition was adjudicated by the RO, and the Veteran has been provided with a thorough and comprehensive medical evaluation. Stegall v. West, 11 Vet. App. 268 (1998). The examiners reviewed the medical evidence and lay statements and performed a fee-based December 2014 examination and a December 2016 VA examination. Taken together, the examination reports provide sufficient information to rate the service-connected disability on appeal. 38 C.F.R. § 3.327(a) (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). At the least, the Board finds the December 2016 examination to be sufficient and adequate. For his part, the Veteran has submitted personal statements, argument from his representative, and private medical evidence. He has not identified any additional, outstanding evidence that is relevant to his claim being decided herein. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his increased rating claim for a right hip disability and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of the claim on appeal. II. Service connection for a right hip disability Based on a review of the claims folder, the Board finds that the competent evidence of record weighs against the claim for service connection for a right hip disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013). In the present case, the most recent VA examination diagnosed the Veteran with chronic right hip strain, which is not an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would not apply. VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran seeks service connection for a right hip disability. The examiner at the December 2016 VA examination diagnosed the Veteran with chronic right hip strain. The requirements for Shedden element (1) have been met. The Veteran's available STRs do not show complaints, treatment, or diagnosis of a right hip condition or related symptoms during his period of service. At the August 2014 Board hearing the Veteran stated that he hurt his hip doing parachute jumps in 1990. The Veteran's Form DD-214 shows receipt of the parachute badge, however STRs from the Veteran's 1985 to 1987 period of active service are not available. At the Veteran's May 1991 examination prior to separation from one of his periods of active service, there was no notation of a hip condition. On associated Reports of Medical History, the Veteran did not indicate problems with his right hip. Subsequent STRs do not show complaints of or treatment for a right hip condition. At the Veteran's medical evaluation board in July 2011 there was no right hip condition discussed or ultimately listed as one of the disabilities for which the Veteran was medically retired. Post-service treatment records show a May 2012 general examination during which the Veteran's right hip range of motion was tested and shown to be normal, but he did report "hip pain," but the report does not specify right or left hip pain. In a December 2014 disability benefits questionnaire, the examiner opined that it was less likely than not that the Veteran's right hip condition, diagnosed as right hip sprain, was related to active service as there were no notes in the Veteran's STRs showing complaints about a right hip condition. The Board ultimately determined that this examination was inadequate as it failed to take into account the Veteran's statements regarding injury due to parachute jumping during his 1985 to 1987 active service period. 38 C.F.R. § 3.327(a) (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). A February 2016 VA treatment note showed the Veteran's hip extension, abduction, and flexion on the right side was 5 out of 5. Although the Veteran's STRs are missing for certain years, and the available STRs show no complaints or treatment for a right hip condition, the Board must consider the Veteran's lay statements as to history of an injury. While the Veteran may believe that his current right hip strain is due to an injury sustained while parachute jumping, as a lay person, he has not been shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of chronic musculoskeletal disabilities requires medical testing and expertise to determine. Thus, his lay opinion regarding the etiology of his right hip condition is not competent medical evidence. In the December 2016 VA examination, the examiner opined that it was less likely than not that the Veteran's right hip condition, diagnosed as chronic right hip strain, was related to his active service, to include as a result of parachute jumping from 1985 to 1987 as reported by the Veteran at the examination. The examiner noted that there was no continuity of care from the time of the asserted injury until the present, a span of roughly 30 years. Based on the lack of complaints for and treatment of a right hip condition for many years since service, the examiner opined that any injury sustained in service was "likely self-limiting" and "noncontributory to the present condition." The Board finds the opinion of the VA examiner in December 2016 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's right hip condition is due to service. The findings of the VA examiner were based on a review of the evidence, and cited to the medical evidence. The examiner considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that the Veteran's right hip strain, which was not shown in service or within one year of service discharge, is related to service. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. The Board finds this opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The most probative and persuasive evidence is against finding that the Veteran's current right hip condition is related to service. Accordingly, service connection for a right hip disability is denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right hip disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs