Citation Nr: 1753483 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 08-27 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected lumbar spine disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1979 to December 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, September 2014, January 2016, and March 2017, the Board remanded the case for additional development and it now returns for further appellate review. FINDING OF FACT A bilateral hip disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service; arthritis did not manifest within one year of service discharge; and was not caused or aggravated by service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran alleged that a March 2017 VA medical opinion is inadequate for adjudications purposes, which will be discussed in detail herein, neither he nor his representative have alleged any other deficiency with respect to VA's duties to notify or assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that has been experiencing bilateral hip pain from the time of an April 1981 in-service accident to the present time. He stated that he has been self-treating his hips with pain medication since service and was afraid to seek formal medical treatment in the years following service because he was applying for jobs. He asserts that he has never had any other accident or incident that could have caused his current bilateral hip disorder. In the alternative, the Veteran maintains that his bilateral hip disorder is secondary to his service-connected lumbar spine disability. The evidence of record shows that the Veteran currently has a bilateral hip disorder, diagnosed as arthritis of the bilateral hips and exostosis of the right iliac bone. See July 2012 and April 2016 VA examination reports. Additionally, the Veteran's service treatment records (STRs) reflect that he was hit by a car while on active duty in April 1981. However, such records are negative for any reported hip injury or complaints, to include as a result of such accident, and he denied any hip problems at the time of his separation. In December 2006, the Veteran submitted a VA Form 21-4176, Report of Accidental Injury in Support of Claim for Compensation or Pension, wherein he reported that he was hit by an automobile in a crosswalk in April 1981 and sustained trauma to his lower back, pain to his left lateral leg, and a cut to his forehead. Accordingly, to establish service connection, there must be probative evidence linking the Veteran's bilateral hip disorder with his military service, to include his April 1981 in-service accident, or his service-connected lumbar spine disability. In this regard, the Veteran was afforded a VA examination in July 2012, at which time he reported that his bilateral hip pain began in 1981 after being hit by a car and became worse over the years. The Veteran reported that, after the car incident, he went to the hospital, where he was X-rayed and released from the emergency room. He denied any treatment for his bilateral hip disorder other than medications. The July 2012 VA examiner opined that the Veteran's bilateral hip disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that a review of the military records failed to document ongoing problems or complaints concerning the hips after the initial trauma. The examiner noted further that a review of subsequent VA records showed scant, if any, evidence of ongoing hip problems. He indicated that there were no records documenting any complaints of a bilateral hip disorder from 1983 to 2007. The examiner noted further that there was no mention of a bilateral hip disorder on the Veteran's December 1979 enlistment examination, so it was unlikely that the Veteran's present bilateral hip condition stemmed from a military-induced aggravation of a bilateral hip condition which existed prior to service. In September 2014, the Board remanded the claim for an addendum opinion as the July 2012 examiner did not provide an opinion on secondary service connection. In an October 2014 addendum opinion, the examiner found that the Veteran's bilateral hip disorder was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner explained that arthritis is loss or break down of cartilage in a joint over time, and is believed to be caused by the "wear and tear" of the joint. The examiner explained that the bilateral hip disorder would have occurred independent of arthritis of the spine. In January 2016, the Board the found that the July 2012 VA examiner's opinion was inadequate as the examiner relied primarily on the absence of contemporaneous medical evidence of right or left hip symptoms. The Board further found that the October 2014 addendum opinion failed to address whether the Veteran's lumbar spine disability aggravated his bilateral hip disorder. Consequently, the case was remanded so as to provide the Veteran with another VA examination so as to determine the etiology of his bilateral hip disorder. On a VA examination in April 2016, the examiner noted a diagnosis of bilateral hip arthritis and exostosis of the right hip iliac bone. The Veteran reported that he injured his bilateral hips during an auto accident in 1981. He noted that he did not have any fractures from the accident. The examiner observed that the Veteran's service treatment records did not contain any record of treatment for the bilateral hips. He further explained that the April 1981 note mentioned that the Veteran was hit by an automobile in a crosswalk and was seen at a civilian hospital with trauma to his low back, pain to the left lateral leg below the knee, and a bruise to the forehead. The examiner observed that the Veteran's December 1983 report of medical history on separation from service mentioned recurrent back pain, but did not mention any bone or joint problems. He noted that an April 2016 X-ray of the pelvis and hips revealed no acute fracture or dislocation, but showed mild degenerative changes at the hips bilaterally. The examiner stated that a bony protrusion extending off the lateral margin of the superior right iliac bone was seen as far back as July 2012 and was likely benign, possibly representing an exostosis. The examiner found that, considering all available information, the Veteran's current bilateral hip disorder was less likely as not due to the auto accident or any other treatment received in service. He explained that the service treatment records did not show any evidence of a bilateral hip injury in service, including the in-service car accident. The examiner opined that it was less likely as not his bilateral hip disorder is related to any service-related incident. With respect to secondary service connection, the examiner noted that the Veteran had a service-connected lumbar spine condition, including radiculopathy; however, he explained that there was no physiologic basis for a lumbar spine condition to cause degenerative changes in the hips. The examiner opined that the Veteran's bilateral hip disorder was "less likely as not due to or related to his [service-connected] lumbar condition and there is evidence to indicate that his lumbar spine condition aggravated [sic] cervical spine or hip condition." The Board finds that, although the April 2016 examiner wrote that "there is evidence" to indicate that the Veteran's lumbar spine disability aggravated his bilateral hip disorder, the omission of the word "no" appears to be a typographical error. A medical examination report must be read as a whole in determining its adequacy. The Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)). Thus, the Board finds that the examiner most likely intended to write "there is no evidence" to indicate that the Veteran's lumbar spine disability has aggravated his bilateral hip disorder. The Board has reached this conclusion based on the opinion's rationale, which would not support a positive aggravation opinion. In March 2017, the Board the found that the April 2016 opinion was inadequate with respect to direct service connection because the VA examiner continued to rely solely on the absence of contemporaneous medical evidence in rendering a negative opinion. Thus, the Board remanded the claim for an addendum opinion to adequately address such aspect of the Veteran's claim. In this regard, in a March 2017 addendum opinion, the VA examiner found that the Veteran's bilateral hip disorder was less likely as not related to the conditions treated in the military service or specifically the auto accident in the military service. He explained that the X-rays during the April 2016 examination did not show any fractures, but it showed mild degenerative changes at the hips bilaterally. He further explained that, these are degenerative rather than post traumatic changes. In his October 2017 Written Brief Presentation, the Veteran's representative argued that the March 2017 addendum opinion was inadequate as the examiner rendered an adverse medical opinion based on the absence of evidence of any complaint and/or treatment of any hip-related injuries in service. He alleged that the mere absence of evidence cannot be used as evidence against a claim. However, as stated above, the March 2017 VA examiner based his opinion on the entirety of the evidence of the record, to include an X-ray from April 2016. The Veteran's representative also argued that March 2017 VA examiner failed to address whether the Veteran's lumbar spine disability aggravated his bilateral hip disorder; however, as the April 2016 VA examiner's opinion as to such aspect of the Veteran's claim fully addressed such matter, the March 2017 VA examiner was not requested to render an opinion as to secondary service connection. Consequently, the Board finds the Veteran's representative's arguments as to the inadequacy of the March 2017 VA examination are without merit. The Board accords great weight to the April 2016 VA examiner's opinion as to secondary service connection and the March 2017 VA examiner's opinion as to direct service connection as they considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on the records reviewed. Moreover, the VA examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Importantly, there is no medical opinion of record to the contrary. To the extent the Veteran believes that he has a bilateral hip disorder that is related to service or a service-connected disability, as a lay person, he has not shown that he has 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 the bilateral hip disorder is a matter not capable of lay observation, and requires medical expertise to determine. Specifically, the question of causation and/or aggravation of a bilateral hip disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such requires knowledge of the musculoskeletal system, to include the impact of trauma and/or a lumbar spine disability has on the hips. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his ultimately diagnosed bilateral hip disorder is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the Veteran's opinion as to the etiology of his bilateral hip disorder is not competent evidence and, consequently, is afforded no probative weight. The Board has also considered whether service connection is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested arthritis of the bilateral hips to a degree of 10 percent within the one year following his discharge from active duty service in December 1983. Furthermore, on the Veteran's separation examination in December 1983, his lower extremities were clinically evaluated as normal and he denied arthritis as well as bone joint or other deformity. The Board acknowledges the Veteran's report of receiving treatment as early as 1992; however, the records of such are not on file. In this regard, in the September 2014 remand, the Board instructed the AOJ to seek to obtain copies of all treatment records from Winter Haven Hospital. In October 2014, the AOJ notified the Veteran that the VA Form 21-4142 he submitted had expired and was no longer valid. The AOJ requested the Veteran resubmit a new VA Form 21-4142 for these records. The Veteran did not respond to this request, and he has not identified any additional medical evidence in support of his claim. Consequently, such records are not on file; however, even assuming that the Veteran received treatment for hip complaints in 1992, such is still almost 10 years after his separation from service. Therefore, the earliest evidence demonstrating a diagnosis of arthritis is dated in July 2012, at which time only mild degenerative joint disease was noted. Consequently, while the Board has considered the Veteran's statements regarding a continuity of bilateral hip symptomatology since service, the contemporaneous evidence fails to demonstrate that arthritis manifested within his first post-service year, or that his reports of hip pain since service have been related to a diagnosis of arthritis within the first post-service year. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for arthritis of the bilateral hips. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that a bilateral hip disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service; arthritis did not manifest within one year of service discharge; and was not caused or aggravated by service-connected lumbar spine disability. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable to his claim and it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a bilateral hip disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs