Citation Nr: 1753701	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  07-23 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a left hip disability, to include as secondary to the service-connected left knee disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Morgan, Associate Counsel


INTRODUCTION

The Veteran had active duty service from October 1974 to October 1978.
The appeal comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision from the RO in Columbia, South Carolina.  This matter was previously before the Board.  In April 2011, the Board remanded this claim for further development.  In February 2014, the Board remanded this claim and directed the RO to develop further the Veteran's claim. 

The Veteran was afforded a VA examination in January 2015 for hip and thigh conditions.  In July 2017, the Board granted service connection for the Veteran's right hip and remanded his claim for service connection for his left hip.  The issue of service connection for the Veteran's left hip has returned to the Board. 


FINDING OF FACT

The Veteran's left hip disability did not manifest during service and is not proximately due to, or aggravated by his service-connected left knee disability.


CONCLUSION OF LAW

The criteria for service connection, whether direct or secondary, for a left hip disability have not been met for any period on appeal.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to 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).

The Veteran contends that he has a left hip disability that is related to his military service. The Veteran asserts in the alternative that he has a left hip disability that is the result of or proximately due to his service-connected left knee disability.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a veteran must show: '(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 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013).  

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation.  See Combee, 34 F.3d at 1043.

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability.  Id.  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).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

In October 2005, the Veteran responded to the VA's Veterans Claims Assistance Act and Duty to Assist Notice (VCAA/DTA) for his claim for service connection for his left knee.  In his October 2005 letter, the Veteran asserted that his knees have caused problems in both hips.  

Here, the Veteran's service treatment (SRTs) records are negative for treatment or complaints related to his left hip.  The medical history portion of the Veteran's service separation examination in September 1978, completed by the Veteran, is negative for any complaints regarding his left hip.

In December 2007, the Veteran was afforded a VA examination for the joints.  The examination is negative for any complaints regarding the Veteran's left hip. 

In September 2012, the Veteran was provided a VA examination for hip and thigh conditions.  The examiner diagnosed the Veteran with bilateral hip strain. The VA examiner reported that the Veteran has a medical history of gradual onset of bilateral hip pain that the Veteran attributes to his service-connected left knee.  The examiner noted that the Veteran did not have injuries in service.  The VA examiner reported that the Veteran had left hip extension and flexion of 100 degrees.  The examiner noted that there were no limitations with abduction, adduction or rotation in the Veteran's left hip.  The VA examiner reported pain on movement in both hips.  The examiner reported that there was no ankylosis of the Veteran's left hip.  The examiner noted that the Veteran did not use an assistive device and there was no functional impact related to the Veteran's left hip.  The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The rationale for the opinion was that there were no complaints regarding or injuries to the hips during service or within one year following discharge.

The Veteran was provided a VA examination of the hip and thighs in January 2015.  The examiner reviewed the evidence in the claims file, recounted the Veteran's history.  The examiner reported that the Veteran denied symptoms regarding his left hip.  The examiner reported a diagnosis of trochanteric pain syndrome (including trochanteric bursitis) for the Veteran's right hip.  

The Board finds that based upon the preponderance of the evidence service connection for the Veteran's left hip disability on a direct or secondary basis is not warranted.  Regarding direct service connection, the Board observes that the service treatment records do not show that the Veteran injured his left hip during service or reported complaints related to his left hip.  The Board acknowledges that the Veteran complained of left hip pain.  However, pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.  Sanchez-Benitez v. Principi, 259 F.3d 1356  (Fed. Cir. 2001).  More importantly, the Veteran denied symptoms for his left hip to the December 2007 and January 2015 VA examiners.  The Board notes that the September 2012 VA examination reported a diagnosis of bilateral hip strain, but the examiner's physical examination of the Veteran and the Veteran's medical history showed only pain without an underlying diagnosis or malady reported by the VA examiner, such as bursitis or arthritis.  The Veteran is service-connected for his right hip based upon a diagnosis for trochanteric pain syndrome.  The record is negative for a similar or like diagnosis for the Veteran's left hip.  Consequently, service connection for a left hip disability on a direct basis is not warranted.  See Holton. 

Regarding service connection on a secondary basis, to include aggravation, the Board again notes that the evidence of record is negative for a diagnosis related to the Veteran's left hip.  Service connection for a left hip disability is not warranted.  The Board's finding is based upon the preponderance of the evidence.   Specifically the reports from the VA examiners in December 2007 and January 2015 in which the Veteran had no complaints regarding his left hip.  Allen.

The Board has also considered the Veteran's lay evidence.   However, while the Veteran is competent to report symptoms readily observed by laypersons, such as pain, he is not competent to identify the etiology of his symptoms.  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a layperson, the Veteran is not competent to provide evidence as to more complex medical questions.  The Veteran has reported pain in his left hip and as stated above without evidence of an underlying malady or condition, pain alone does not in and of itself constitute a disability for which service connection may be granted.  Sanchez-Benitez v. Principi.

Based on the foregoing, the Board finds the preponderance of the evidence is against a finding of entitlement to service connection for the Veteran's left hip.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  As the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b).  The appeal is denied.
ORDER

Entitlement to service connection for a left hip disability, to include as secondary to the service-connected left knee disability is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs