Citation Nr: 1754093 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 13-34 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left hip condition. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. He had additional service from November 1978 to June 1980 for which he received a discharge under other than honorable conditions. This is considered to be a bar to VA benefits under the provisions of 38 C.F.R. § 3.12(c)(6) and 38 U.S.C. § 5303(a) for any disability incurred or aggravated in the line of duty during his service from November 1978 to June 1980. To date, the record does not reflect any change to the character of the Veteran's discharge for this second period of service from November 1978 to June 1980. The issue of the character of discharge for this period is not before the Board at this time. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for left hip and back conditions. The Veteran submitted a January 2012 notice of disagreement. In an October 2013 rating decision, the Veteran was granted service connection for multilevel degenerative disease of thoracolumbar spine and radiculopathy of the bilateral lower extremities. This represented a full grant of the back condition claim. The RO issued an October 2013 statement of the case on the remaining issued of service connection for a left hip condition and the Veteran perfected his appeal on this issue with a December 2013 VA form 9. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran does not have a left hip condition that is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a left hip condition have not all been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2014); 38 C.F.R. § 3.303(a) (2017). "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). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). A compensable (10 percent) degree of arthritis requires establishment of arthritis by x-ray findings and limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003. In this case, the record does not include any evidence showing that the Veteran had arthritis in his left hip manifesting within one year of separation from service. The record shows that the Veteran underwent surgery in July 1978 for a diagnosis of sepsis of the left hip. Sepsis is not a condition for which service connection may be presumed. This surgical record does not show a diagnosis of arthritis. Although the Veteran testified that the left hip infection necessitating the surgery was caused by arthritis, the contemporaneous medical record directly contradicts this testimony. A December 1979 x-ray report was negative. As such, the record does not show a diagnosis of left hip arthritis within one year of his separation from active duty service in June 1978 and service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307 (a)(3). In his testimony, the Veteran reported current left hip pain dating back to one year after he began his second period of service from November 1978 to June 1980. As noted in the Introduction, his discharge for that period of service was under other than honorable conditions. In a March 2011 Administrative Decision, the RO determined that the Veteran's bad conduct discharge for this second period was a bar to VA benefits. Specifically noting that benefits were not payable where the former service person was discharged or released by reason of the sentence of a general court-martial, as was the case here. The Veteran did not appeal that administrative decision. The Veteran has recently sought to change the character of that discharge, but to date the record does not reflect any such change. As such, the Board's discussion of direct service connection will be limited to his first, honorable period of service. In this case the Veteran is competent to provide lay evidence of current hip pain. He has not provided evidence of an in-service incurrence or aggravation of a disease or injury to which his current left hip condition can be linked. Instead he has argued that his sepsis was diagnosed and treated so soon after his separation from service that it should be service connected. No examination was provided with regard to this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). As sepsis is not a presumptive condition, direct service connection requires an identifiable in-service onset or injury to which a current condition can be linked. Here, the evidence does not establish left hip injury or disease during his honorable period of service. The service treatment records are silent for complaint of, treatment for, or a diagnosis of left hip disease during his active duty service. In his testimony, the Veteran reported that his left hip started hurting after his separation and escalated to the point of needing surgery within one month of that separation. Although barely legible, the surgical report appears to show a history of left hip pain beginning five or six days prior to the surgery, which confirms a post-separation onset of symptoms. There is no competent evidence establishing the requisite injury, disease, or event during service to which the claimed condition can be linked. As such, no examination is necessary. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a left hip condition and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left hip condition is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs