Citation Nr: 1753655 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-27 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right hip disorder. REPRESENTATION Veteran represented by: Jeffrey Bunten, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L Zadora, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2012, the Veteran testified before the undersigned at a Travel Board hearing. A copy of the transcript has been associated with the record. This matter was previously remanded by the Board in July 2014 for further procedural and evidentiary development. In June 2017, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) pursuant to 38 U.S.C.A. § 5107(a) (West 2014) and 38 C.F.R. § 20.901 (2017). That requested medical opinion was rendered in June 2017. VA provided a copy of that opinion to the Veteran and his attorney by correspondence dated in August 2017 and provided them the opportunity to submit additional argument and evidence. Additional evidence or argument was not received. FINDINGS OF FACT 1. Femoral acetabular impingement is a congenital defect, which is deemed to have clearly and unmistakably existed prior to service. 2. The Veteran did not sustain a superimposed disease or injury to his congenital femoral acetabular impingement during or as a result of service, his current right hip osteoarthritis was due to the known progressive nature of the femoral acetabular impingement and the competent, probative evidence does not establish that his congenital femoral acetabular impingement was otherwise chronically aggravated in or as a result or service, resulting in current right hip disorder. CONCLUSION OF LAW The criteria for service connection for a right hip disorder are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In the instant case, VA's duty to notify was satisfied by a letter dated in May 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the present case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for the equitable resolution of the issues decided herein has been obtained. Specifically, the Veteran's service treatment records and service personnel records, as well as VA treatment records have been obtained and considered. In connection with the issue on appeal, VA afforded the Veteran a VA examination in May 2016 and an addendum opinion was obtained in October 2016. In addition, a VHA opinion was obtained in June 2017. This VHA opinion is adequate to decide the issue of entitlement to service connection as it fully addresses whether the Veteran's current right hip disorder was a congenital defect or disease and whether the congenital defect was subject to a superimposed disease or injury during service. This opinion considered all of the pertinent evidence of record and the examiner provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board notes that it had found the May 2016 opinion October 2016 addendum opinion to be incomplete in its June 2017 VHA opinion request. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or opinion regarding the issue of entitlement to service connection has been met. Furthermore, Board finds there has been substantial compliance with the Board's July 2014 remand directives and no further action in this regard is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). The Veteran's VA treatment records have been obtained and a VA etiology opinion was obtained in June 2016. Therefore, the Board finds that there has been substantial compliance with its July 2014 remand directives, and no further action in this regard is necessary. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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.A. § 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)]. The Board observes that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or diseases existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137. See VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Further, congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c). However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. However, a disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Id. Such a disease, by its very nature, pre-exists a claimant's military service, and typically, entitlement to service connection turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. Id. The Veteran contends that his current right hip disorder is the result of physical activity during service, specifically getting in and out of large trucks for three years. During a July 2014 hearing, the Veteran testified that he drove large trucks during service, that he got in and out of the trucks daily, that he did not receive treatment for this right hip condition during service and that he first received treatment in 2008 or 2009 for the condition after service. Service treatment records are negative for complaints, treatments or diagnoses related to a right hip disorder. A June 1980 service discharge examination found the Veteran's lower extremities to be normal. The preponderance of the evidence is against the Veteran's claim for service connection for a right hip disorder. A June 2017 VHA physician opined that the Veteran's right hip disorder was a congenital defect, that it became progressively symptomatic due to the natural progression of femoral acetabular impingement, that femoral acetabular impingement was also demonstrated on left hip X-ray and that the Veteran's right hip disorder was not subject to a superimposed disease or injury during his service. The VHA physician reasoned that the repetitive use of the Veteran's right hip while entering and existing large trucks during service was not contributory to the development of his present right hip osteoarthritis based on the timeline of his symptoms, as he was asymptomatic during service, was not evaluated or treated for his right hip condition until 2001 and a May 2001 right hip X-ray was reported as no acute abnormality or significant arthritic changes. The VHA physician further reasoned that the Veteran's left hip femoral acetabular impingement has been asymptomatic, that the fact that his right hip condition subsequently progressed to severe osteoarthritis over the years represents the known progressive nature of this condition and the fact that he had not developed a similar osteoarthritic condition in the left hip despite the presence of femoral acetabular impingement supports the reasonable assessment that his right hip arthritis was not due to any specific activity such as getting into or out of trucks in the military. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. There is no contrary opinion of record. The Board notes that a VA physician provided an etiology opinion in May 2016 and an addendum opinion in October 2016 in which he opined that the Veteran's right hip severe osteoarthritis secondary to femoroacetabular impingement was not at least as likely as not related to service. The physician explained that a femoroacetabular impingement was a developmental or structural change, that this structural change was not caused by any specific trauma and that it could be not be caused by the Veteran getting in and out of a truck. The physician further reasoned that the Veteran was not seen for hip symptoms during service, that the underlying condition of femoroacetabular impingement was not seen radiographically until 2001 and that the Veteran reported the onset of right hip pain nine years after the development of right hip osteoarthritis. As detailed by the Board in its June 2017 VHA request, this physician did not address whether the Veteran's femoroacetabular impingement was a congenital defect or disease and did not address whether there was a superimposed disease or injury during service. As such, this opinion is incomplete. The Board notes that the Veteran has contended that his right hip disorder is the result of his service, and that his attorney has generally alleged on his behalf that this disability was the result of his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's a right hip disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current right hip symptoms and his attorney is competent to describe his observations of the Veteran's symptoms, the Board accords their statements regarding the etiology of such a disorder little probative value as they are not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing, including X-rays. In the instant case, there is no suggestion that the Veteran and/or his attorney or have had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran, and/or his attorney are nonprobative evidence. Therefore, the Veteran did not sustain a superimposed disease or injury to his congenital femoral acetabular impingement during or as a result of service; and his femoral acetabular impingement was not chronically aggravated in or as a result of service. Consequently, service connection for such disorder is not warranted. In light of the foregoing, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right hip disorder. As such, that doctrine is not applicable in the instant claim, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right hip disorder is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs