Citation Nr: 1757763 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-17 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to increases in the staged [50 percent prior to May 3, 2016, and 70% from that date] ratings assigned for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) (psychiatric disability). 2. Entitlement to service connection for a right hip disability. [The matter of entitlement to service connection for a left hip disability will be addressed in a separate decision.] REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1987 to September 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO), that declined to reopen a claim of service connection for right hip degenerative joint disease (DJD), and from an August 2013 rating decision by the Huntington RO that granted service connection for PTSD and MDD, rated 50 percent, effective November 18, 2010. In August 2013, an informal conference was held before a Decision Review Officer (DRO) at the RO; a summary is in the record. In July 2015, a Travel Board hearing was held before the undersigned; a transcript is in the Veteran's record. A December 2015 Board decision reopened the claim of service connection for a right hip disability and remanded both matters for additional development. [It also remanded the issue of service connection for a left hip disability for the AOJ to issue a statement of the case (SOC) in the matter. See Manlincon v. West, 12 Vet. App. 238 (1999).] An interim (January 2017) rating decision increased the rating for the psychiatric disability to 70 percent, effective May 3, 2016. [In June 2017, VA received the Veteran's application for a total rating based on individual unemployability due to service-connected disabilities (TDIU). A review of the record found that that issue is in the process of being developed, but has not yet been adjudicated or certified to the Board, by the RO. Accordingly, the issue is not before the Board at this time.] [Following a hearing in the matter that was requested a separate Board decision (by the Veterans Law Judge who conducts the hearing) will address the claim of service connection for a left hip disability.] FINDINGS OF FACT 1. Prior to January 5, 2012, the Veteran's psychiatric disability was manifested by symptoms no more severe than productive of occupational and social impairment with reduced reliability and productivity, and occupational and social impairment with deficiencies in most areas was not shown; from that date symptoms of the psychiatric disability are reasonably shown to have been productive of occupational and social impairment with deficiencies in most areas, but total occupational and social impairment is not shown. 2. A chronic right hip disability was not manifested in service; arthritis of the right hip was not manifested in the first postservice year; and any current right hip disability is not shown to be etiologically related to the Veteran's service. CONCLUSIONS OF LAW 1. A 70 percent rating is warranted for the Veteran's psychiatric disability from [the earlier effective date of] January 5, 2012. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.126, 4.130, Diagnostic Code (Code) 9411 (2017). 2. Ratings for the psychiatric disability in excess of 50 percent prior to January 5, 2012, and/or in excess of 70 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.126, 4.130, Code 9411 (2017). 3. Service connection for a right hip disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in December 2010 and July 2014. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. As the appeal seeking increased ratings for a psychiatric disability is from the rating decision that granted service connection for such disability and assigned an initial rating and effective date for the award, statutory notice had served its purpose and is no longer necessary. A statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. In December 2015, the Board remanded these claims for additional development, including additional medical examinations. The Veteran was notified by letter of December 2016 VA examinations scheduled to assess his psychiatric and right hip disabilities, but failed to report (without good cause). As he has failed without presenting good cause to report for an examination scheduled in conjunction with original compensation claims, the Board must proceed with adjudication of these matters based on the evidence in the record. See 38 C.F.R. § 3.655(b). The Veteran has not identified any pertinent evidence that remains outstanding, and he and his representative have not raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Ratings for Psychiatric Disability Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's psychiatric disorder has been assigned staged ratings of 50 percent prior to May 3, 2016, and 70 percent from that date under the General Rating Formula for Mental Disorders (General Rating Formula). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9400. Ratings for psychiatric disability are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from an anxiety disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in Code 9400 (and the General Rating Formula for Mental Disorders). Instead, VA must consider all symptoms of a claimant's condition that affect occupational and social function. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994 (DSM-IV)) at 32. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). [Under a revision to the governing criteria during the evaluation period, use of DSM-IV has been superseded by the new DSM-V, which does not incorporate use of the GAF scale to reflect severity of disability. As the Veteran's claim arose when the prior criteria were in effect, GAF scores may be considered as evidence bearing on the severity of the disability. 38 C.F.R. § 4.126(a).] On November 4, 2010 private psychiatric examination, the Veteran reported that he began VA treatment for anxiety and depression approximately two years prior. He denied ever undergoing a formal evaluation for PTSD. He was alert and oriented, and his memory was noted as broadly intact (although somewhat spotty for intermediate and remote events). He reported that he was married for 13 years, divorced for 5 years, and then remarried the same woman. They have two adult children. He described the marriage as "going fairly well now." He had worked in the mining industry for about 18 months before being terminated for not showing up to work; he denied having interpersonal problems on that job. As to symptoms of PTSD, the examiner noted that the Veteran was "sort of vague in his responses," had some intrusive recollections ("but not all the time"), and had nightmares; he denied flashbacks. He reported sleep problems, concentration difficulties, anger, irritability, and constant hypervigilance. He reported depression on a weekly basis. He denied any prior attempts at hurting or killing himself, and denied any current intent to do so. He reported obsessive thoughts of cleanliness. He denied hallucinations, but when asked about disturbing thoughts or impulses said, "go kill the neighbor." He described avoidance of thoughts, but denied avoidance of activities or places. He reported flat line emotions at times, but denied derealization, depersonalization, or dissociative reactions. The examiner found the Veteran's presentation "somewhat distant," speech pattern sparse and hesitant, and affect flat and diminished. The examiner diagnosed chronic PTSD and recurrent, severe MDD with (insipient) psychotic features. He reported a GAF score of "48 - Serious to Major 0Impairment (sic) Current and Past Year." On March 2011 VA psychiatric examination, the Veteran was alert, oriented, and casually dressed. His thought processes were coherent and he showed no delusions or auditory/visual hallucinations. He reported treatment at the VA mental health clinic for the last couple of years; he denied counseling any prior inpatient hospitalization at a psychiatric facility. He reported feeling depressed and disinterested in many activities, but denied suicidal ideation. He rated his depression as 6/10 (with 1 feeling very depressed and 10 feeling very happy). He rated his anxiety as 6-7/10 (with 1 feeling very calm and 10 feeling high anxiety). He reported that he angers easily and has flashbacks of the past. He reported difficulty falling asleep, waking during the night, anxiety, nervousness around others, and panic attacks; he reported staying home and denied socializing or going to church. He denied hypervigilance. Regarding his work history, the Veteran reported that he "did okay with people, getting along" but worked mostly by himself. On examination, immediate memory recall was 0/3 after 5 minutes; the Veteran also reported some short-term memory problems. Suicidal or homicidal thoughts were not shown. He showed "fairly intact insight and judgment" and "concrete thinking." The diagnoses were PTSD and MDD. The examiner noted a GAF score of 50 for his PTSD and 60 for MDD. On January 5, 2012, the Veteran presented to the emergency room with chronic pain, symptoms of PTSD, and suicidal ideation after several nights without sleep. He reported a plan to walk out into the woods near his home and shoot himself with a shotgun; however, he did not want to abandon his son and girlfriend. He reported irritability and difficulty sleeping due to anxiety. On examination, he was alert and oriented; his mood was depressed and anxious. He described feeling frustrated, useless, and hopeless. He had isolated himself from others due to his anger, irritability, and frequent anxiety attacks. He was agreeable to inpatient psychiatric intervention. The assessment was chronic PTSD with a GAF score of 40. On discharge eight days later, his GAF score was 55. A December 2012 VA mental health record notes symptoms of depression and anxiety, and past possible drug-seeking behavior. The Veteran reported that his anxiety and depression come and go, and acknowledged missing many VA appointments because he does not like to be around people. When asked about suicidal ideation, he denied intent or plan. The examiner noted that he was alert, oriented, and cooperative. Hallucination/delusions were not evidenced. A March 2013 mental health medication record notes the Veteran was confrontational after being denied a prescription for Xanax. He was oriented to all parameters and was casually dressed with adequate hygiene and grooming. He maintained eye contact and answered questions appropriately. There was no evidence of delusions or psychoses; he denied hallucinations and suicidal/homicidal ideation. The assessment was PTSD, depression, and anxiety. A GAF score of 50 was noted. A December 2013 Social Security Administration (SSA) determination report notes a primary diagnosis of osteoarthrosis and allied disorders, and a secondary diagnosis of anxiety disorders. A November 2013 Mental Residual Functional Capacity Assessment report notes that the Veteran is moderately limited in understanding and remembering detailed instructions, and moderately limited in social interactions with the general public and coworkers/peers. The examiner noted that he has "moderate cognitive and social limitations related to his depression and PTSD related to his military service. He should nevertheless be capable of sustaining work like activities that require minimal interaction with co-workers, supervisors, and the general public. He would also need to avoid work like activities which are fast paced or place heavy demands upon his short term memory." On May 9, 2014, the Veteran was hospitalized due to thoughts of hanging himself because of chronic severe hip pain. On examination, he was alert, oriented, and exhibited good dress, grooming, and hygiene. He did not exhibit significant psychomotor abnormality. His affect was euthymic, his described his mood as "all right." There was no evidence of hallucinations or delusions; he denied suicidal/homicidal ideation. He reported that sleep is somewhat improved with quetiapine, although often still interrupted. He also reported continued nightmares. The assessment was unspecified bipolar disorder vs. MDD, alcohol use disorder, cannabis use disorder. He was discharged on May 21, 2014. In November 2014, the Veteran cancelled his scheduled VA PTSD examination. A February 11, 2015 mental health record notes the Veteran's report of thinking about "suicide a lot," but denied any intent or plan. He was alert, oriented, and well groomed; he did not exhibit significant psychomotor abnormality. His speech rate, tone, and content were within normal limits. His thoughts were goal-oriented and there was no evidence of hallucinations/delusions. Insight was partial, judgment was good. The assessment was PTSD, unspecified bipolar disorder, and unspecified anxiety disorder. Mirtazapine was prescribed to better address symptoms of anxiety, depression, and insomnia. At the July 2015 Board hearing, the Veteran testified that he has anxiety and panic attacks "all the time." He testified that his wife threatened to leave him due to his psychiatric disability. He testified that he has difficulty sleeping and is irritable; the undersigned noted that he was apparently showing some signs of memory loss based on his testimony. In December 2015, the Board remanded this matter for additional development, to include obtaining an examination to ascertain the severity of his psychiatric disability. A May 2016 clinical record notes that the Veteran was hospitalized for two days due to suicidal ideation. The diagnoses were recurrent, severe MDD, panic disorder, alcohol use disorder, cannabis use disorder, and chronic pain. In December 2016, he failed to show for a scheduled VA psychiatric examination. A January 2017 rating decision increased the rating for the psychiatric disability to 70 percent from May 3, 2016. In a February 2017 statement, the Veteran expressed disagreement with the effective date of the assignment of the 70 percent rating. Considering the symptoms that manifested throughout the period on appeal, the Board finds that since January 5, 2012 (the admission date of his first psychiatric hospitalization), the Veteran's psychiatric disability has presented a disability picture consistent with a characterization of occupational and social impairment with deficiencies in most areas. Initially, the Board notes evidence showing three periods of inpatient psychiatric hospitalization for suicidal ideation, including from January 5 to January 13, 2012 (with suicide plan), May 9 to May 21, 2014, and May 3 to May 5, 2016. Additional symptoms have included: near-continuous depression, inability to establish new relationships, anxiety, irritability, anger, feelings of uselessness/hopelessness, difficulty sleeping, nightmares, and some short-term memory loss. GAF scores were noted to be 40 upon January 2012 hospitalization, and 50 on March 2013 clinical examination, indicating serious symptoms or serious social, occupational or school functioning impairment. While the GAF scores, of themselves, without explanation, are not dispositive, considered in light of the actual symptoms presented, the GAF scores support the assignment of a 70 percent rating (as they reflect serious symptoms for the most part). The Board has considered whether the evidence shows a disability picture consistent with total occupational and social impairment since January 5, 2012, but finds that it does not. The Board notes that the Veteran often prefers to be alone and displays avoidant and isolating behavior. However, it is also noteworthy that he is married and reports caring for his adult son. He is able to independently perform his activities of daily living, including maintenance of personal hygiene. There has been no gross impairment in thought processes or communication, persistent danger of hurting others, hallucinations or delusions, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or other symptoms of such nature and severity. Notably, the Veteran failed to report for (or cancelled) VA psychiatric examinations scheduled in November 2014 and December 2016, and further development of critical medical evidence is therefore not possible. The evidence of record simply does not show total occupational and social impairment, and a schedular 100 percent rating is not warranted. The analysis turns to whether a rating in excess of 50 percent is warranted for any period of time prior to January 5, 2012. Considering the symptoms manifested during that period, the Veteran's psychiatric disability presented a disability picture most consistent with a characterization of occupational and social impairment with reduced reliability and productivity, as contemplated by the 50 percent rating assigned. He reported his marriage was "going fairly well now," and reported symptoms of sleep problems, nightmares, concentration difficulties, some intrusive recollections ("but not all the time"), anger, irritability, panic attacks, depression on a weekly basis, and conflicting reports of hypervigilance. He rated his depression as 6/10 (with 10 feeling very happy) and his anxiety as 6-7/10 (with 10 feeling high anxiety). He denied suicidal ideation, homicidal ideation, hallucinations, and delusions. He provided conflicting reports regarding avoidance of activities/places. The evidence did not show impaired impulse control, spatial disorientation, neglect of personal hygiene, near-continuous depression, or the inability to maintain effective relationships. On March 2011 VA examination, he reported that he "did okay with people, getting along" at his former workplace, and showed "fairly intact insight and judgment" (but concrete thinking). The disability picture presented simply does not reflect occupational and social impairment in most areas. Accordingly, a rating in excess of 50 percent is not warranted for the period prior to January 5, 2012. The Board has considered the benefit-of-the-doubt rule, applying it in the Veteran's favor when such doubt regarding degree of disability presented. See 38 C.F.R. § 4.3. Service Connection for a Right Hip Disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A February 23, 1988 service treatment record (STR) notes complaints of right hip pain for five days. The Veteran reported that he injured his right hip during a Physical Fitness Test (PFT) and that it felt better over the weekend. On examination, there was no edema, ecchymosis, erythema, or tenderness to palpation. He had full extension and full flexion (with discomfort in the right gluteal region). The assessment was right hip contusion. On February 26, 1988 follow-up, the Veteran reported that his hip felt better, although a little stiff at times. His gait was normal; flexion and extension were full; there was no tenderness to palpation of the gluteal muscle. He was returned to duty. A December 1991 periodic report of medical history notes the Veteran's report of a previous broken bone (a fractured collar bone); he denied arthritis, rheumatism, bursitis, and bone/joint deformity. The corresponding medical examination found normal lower extremities, a normal spine, and a normal musculoskeletal system. September, November, and December 2005 clinical records note complaints of bilateral hip pain. The November 2005 record notes the Veteran's report that the pain has existed for months. February 2006 x-rays of the right hip were normal. A May 2006 VA clinical record notes complaints of right hip pain for years. A February 2011 emergency department record notes complaints of bilateral groin pain and difficulty lifting his legs for the past month and a half. The assessment was thigh tendonitis. On May 16, 2011, the Veteran failed to report for a VA joints examination. In June 2011, he requested that the examination be rescheduled. He again failed to report to a VA examination scheduled on June 20, 2011. A January 2012 VA clinical record notes a complaint of hip pain for several years due to arthritis. A December 2012 private clinical record notes an assessment of moderate right hip arthritis. In August 2013, a DRO conference was held. The Veteran asserted that his right hip disability is due to training and/or parachute jumps in service. A December 2013 Social Security Administration (SSA) determination report notes a primary diagnosis of osteoarthrosis and allied disorders, and a secondary diagnosis of anxiety disorders. SSA records also contain copies of private treatment records pertaining to the right hip from Dr. Branson in 2012 and 2013, but such records do not contain an opinion regarding etiology. On January 2014 VA hip examination, the Veteran reported that he sustained a right hip contusion during a parachute landing fall in service. He stated he was unable to train for three weeks, but subsequently returned to jumping and was not seen for his hips again in service, completing a total of seven jumps. He reported in a wheelchair; his wife stated that he cannot ambulate without a walker. The diagnosis was right hip DJD. Following examination and interview of the Veteran, as well as review of his claims file, the examiner opined that his right hip disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that his STRs show only one incident of right hip pain in service. She explained: "Contusions are self-limiting injuries which is further supported by the fact the veteran was not seen again for hip pain while in service. The veteran did a total of 7 jumps. 6 of these were made after the contusion to the right hip. The first records of complaints of hip pain are in 2011 at Beckley VAMC. This would have been more than 20 years after the original injury. Medical records also show that the veteran was involved in an ATV accident in 2005. With this information, it is my professional opinion that the veteran's bilateral hip condition is less likely as not caused by his military service." A May 8, 2014 CT scan of the pelvis showed severe bone-on-bone superior right hip joint space narrowing with subchondral cyst formation and marginal osteophyte spurring. The assessment was right hip severe osteoarthritis. At the July 2015 Board hearing, the Veteran testified he was injured in a training jump when he landed and fell backwards on right hip. He denied it being bruised, scraped, or bleeding, but testified that it was "just really painful inside." He testified that he rested for approximately one week, before resuming training. When asked by his representative if his hip still bothered him during subsequent training, he responded, "I can't remember.....I don't - I really don't know." He later testified that it was bothering him in 1991 when he left service and has "always bothered [him]." When asked if subsequent jumps made his right hip hurt more, the Veteran said, "You know, I can't remember. It's been too long." He reported being seen for his right hip at the VA sometime in the late 1990s or early 2000s. He testified that he fractured his left ankle in a 2005 ATV accident. In December 2015, the Board remanded this matter for additional development, to include obtaining an adequate medical advisory opinion which considered the Veteran's lay statements and medical evidence showing right hip treatment in 2005, rather than 2011. In December 2016, he failed to show for such examination. It is not in dispute that the Veteran now has a right hip disability. What remains to be established is whether such disability is related to an injury in service. As noted above, he asserts his right hip disability is due to training and/or parachute jumping in service. The Veteran's STRs show a February 1988 diagnosis of a right hip contusion. Three days later, he reported that his hip felt better, although still a little stiff at times. His gait was normal, flexion and extension were full, and there was no tenderness to palpation; he was returned to duty. He testified that he subsequently completed six additional jumps and could not remember if the subsequent jumps bothered his right hip. See July 2015 Board hearing transcript. On December 1991 periodic examination (three months after separation from active duty service), his lower extremities and musculoskeletal system were normal; he denied arthritis, rheumatism, bursitis, and bone/joint deformity. Although the Veteran testified that he began VA treatment for his right hip in the late 1990s or early 2000s, the earliest postservice clinical record noting complaints of right hip pain is from 2005 (and the Board observes that he appears to be a poor historian, apparently due in part to memory lapses). February 2006 x-rays of the right hip were normal. As a chronic right hip disability (including arthritis) was not shown to have been manifested to a compensable degree within a year following the Veteran's separation from service, and postservice continuity is not shown, service connection for the a right hip disability on the basis that it became manifest in service and persisted thereafter, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. The Board turns to the question of whether service connection may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). The Board acknowledges that lay evidence of symptoms during and after service may be competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran's accounts of continuous symptoms since service are inconsistent with contemporaneous clinical findings and given his noted memory lapses may not be accepted at face value. For example, in November 2005, he reported that his hip pain had existed for months; in May 2006, he reported that it existed for years; in January 2012, he reported that it existed for several years; and, at the July 2015 Board hearing, he testified that he could not remember if his right hip hurt on subsequent jumps in service, but later testified that his hip has "always bothered [him]" since he left service in 1991 (i.e., the accounts appear to be tailored to support the claim). There is no competent (medical opinion) evidence of record that relates the Veteran's right hip disability to his service. To the extent that he asserts his right hip disability is directly related to service, the Board notes that in the absence of evidence of onset in service and continuity thereafter, the etiology of a hip disability first noted approximately 14 years postservice is a medical question. Because he is a layperson, the Veteran lacks the expertise to offer a probative opinion in this matter. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has not submitted any medical opinion or medical literature in support of his claim. The only competent (medical) evidence in the record regarding the etiology of the Veteran's right hip disability is the January 2014 VA examiner's opinion that such disability is less likely than not related directly to the Veteran's military service and injuries therein, to specifically include the February 1988 contusion. The Board notes that that opinion did not consider the Veteran's lay reports of continuity of symptomatology or evidence showing complaints of right hip pain were first documented in 2005 (rather than 2011), and that the matter was remanded for an examination to secure an opinion that encompasses such information. However, the Veteran failed (without good cause) to report for the scheduled examination, and therefore such opinion was not obtained). Notably, the Board has found the Veteran's reports of continuity of symptoms less than credible, and onset in 2005 still places documented onset of complaints some 14 years following discharge from active duty. In summary, a chronic right hip disability is not shown to have been manifested in service; arthritis of the right hip was not manifested in the first postservice year; and the Veteran's reports of continuity of symptomatology since service have been inconsistent, and are not credible. The only competent (albeit not optimal due to the Veteran's failure to co-operate) evidence in the record regarding the etiology of the his right hip disability is against his claim. The preponderance of the evidence is against the claim. Accordingly, the benefit of the doubt rule does not apply; the appeal in the matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER An earlier effective date of January 5, 2012 is granted for the award of a 70 percent rating for the Veteran's psychiatric disability, subject to the regulations governing payment of monetary awards. Ratings for the psychiatric disability in excess of 50 percent prior to January 5, 2012, and/or in excess of 70 percent from that date, are denied. Service connection for a right hip disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs