Citation Nr: 1759902 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-14 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a left hip disability. ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel INTRODUCTION The Veteran had active service with the United States Army from October 1966 to October 1969, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In December 2014, the Board remanded the issue of entitlement to service connection for a left hip and leg disability for further development. In July 2009, the Veteran requested that the agency of original jurisdiction (AOJ) re-open his service connection claim for a "back condition." Review of the record demonstrates that the AOJ never developed this claim. As the AOJ has not yet had the opportunity to complete adjudication of the Veteran's back condition claim and therefore the Board does not have jurisdiction, this matter is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT The only medical opinion evidence shows that complaints of left hip pain is not etiologically related to the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that the VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA has satisfied the duty to notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. The Veteran was provided required notice in August 2002, September 2003, and December 2009. The VA has satisfied the duty to assist. The claims folder includes service treatment records, military personnel records, and VA treatment records. The record is silent as to the existence of any private medical treatment records. The Veteran was also provided recent a VA examination in December 2015. The Veteran was afforded an opportunity for a hearing, but declined this option. At this time, the Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. II. Service Connection Claim The Veteran seeks service connection for a left hip disability, which has predominately manifested itself by pain. The Veteran contends that his left hip pain was the result of his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). To establish a right to compensation for a direct service connection disability, the Veteran must show: (1) the existence of a current 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)). Service treatment records are negative for any complaints, findings or diagnosis of a left hip or left leg injury. A July 1969 separation examination report reflects that the Veteran's lower extremities and skin were evaluated as clinically normal. Only a scar on the right forearm was noted. On contemporaneous self-report of medical history the Veteran denied any cramps in his legs, arthritis, or any, bone, joint or other deformities. A November 1969 VA examination report reflects that the Veteran reported he sustained a severe contusion of his left hip and left thigh when he was bounced into a machine gun rack on a jeep in November 1967 while in sought Vietnam. The Veteran complained of occasional pain in the anterior compartment of his distal left thigh. Examination revealed no scars from lacerations. The diagnosis was residuals of injury to the left thigh and hip were not found. In October 2009, the Veteran submitted a request to reopen his claim for service connection asserting that he injured the sciatic nerve in the left leg/hip when a jeep he was riding in drove over a land mine. The Veteran underwent a VA examination in December 2015 in which the examiner reviewed the claims file and considered the Veteran's assertions. The VA examiner concluded that "the 'hip' condition [the Veteran] describes today is a Left Radiculopathy, from DDD [i.e., degenerative disc disease] L-S spine, [and] not a true hip condition." The examiner opined that his findings were confirmed by a back examination and x-rays. The examiner reasoned that the Veteran's claimed condition was not related to military service, but rather due to the Veteran's nonservice connected low back degenerative disc disease. The examiner is shown to have conducted a thorough examination, to have reviewed the pertinent evidence of record and considered the Veteran's reported history and assertions, and to have provided an adequate rationale for the opinions. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for a left hip disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). To the extent that Veteran's lay statements asserting an in-service injury to his hip and repeated reporting that his current hip pain is due to an incident in Vietnam, the Board finds that the probative value of the Veteran's lay assertions are outweighed by the medical evidence of record which does not show any pathology, disease, residuals of injury, or hip disability that incurred in service or after discharge. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also 1969 VA Examination (finding no left hip disability). The Board finds that the December 2015 VA examination is entitled to more probative value than the Veteran's lay statements, because the opinion in the December 2015 VA examination is consistent with the objective medical testing and x-ray evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board notes that the Veteran is competent and credible to report left hip pain, and has been reporting left hip pain for almost fifty years. Nonetheless, the Veteran is not competent to determine whether his left hip pain relates to his active duty; in other words the Veteran is not competent to opine on the etiology of his left hip pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding claimant was competent to testify as to factual matters such as experiencing pain in his right hip). Whether the Veteran's current left hip pain was caused by his active duty service requires a medical determination that cannot be made based on lay observation alone given the complexity of determining what is causing the manifestation of pain. See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Instead, such a determination must be made by a medical professional with the appropriate expertise. See supra. Because the Veteran lacks medical training and experience, his assertion that his left hip pain relates to service is not competent evidence and is therefore outweighed by the December 2015 VA examination, which was rendered by a medical professional and supported by objective medical evidence that definitely ruled out the Veteran's hip pain was related to service, and instead objectively showed that it was caused by a nonservice-connected degenerative disc disease of the lumber spine. The Board further notes that the Veteran's contentions as to the accident in service causing the claimed injury causing the claimed left hip disability has been inconsistent, in 1969 it was claimed to have been caused from when he was bounced into a machine gun rack on a jeep, but in October 2009, the injury was claimed to have resulted from when his jeep drove over a land mine. Further, at the time of the Veteran's separation examination a scar on the right forearm was noted, but there is absolutely no mention of any laceration to the left hip, thigh or leg area. Thus, the Board finds that the Veteran's general lay statements as to etiology are inconsistent and lack credibility, and furthermore are outweighed by, the objective medical opinion finding no nexus between claimed disability and service. Accordingly, the Board finds that the preponderance of the evidence that is of record weighs against the Veteran's claim of service connection for a left hip disability. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. 3.102 (2017). ORDER Service connection for a left hip disability is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs