Citation Nr: 1802142 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-10 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left hip disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active duty for training from April 2008 to August 2008, and active duty from February 2009 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California (which denied the Veteran's claim based in part on his failure to appear for a VA examination), and an August 2011 rating decision of the VARO in Milwaukee, Wisconsin (which again denied the Veteran's claim after he appeared for a re-scheduled VA examination). In November 2016, a videoconference Board hearing was held before the undersigned Veterans Law Judge with the appellant's representative. The Veteran was scheduled to appear but could not be located at the time of the hearing. At the representative's request, a hearing was held in order for the Veteran's representative to provide oral argument. A transcript of that hearing is of record. The record was held open for an additional 60 days for the Veteran's representative to assist the Veteran in an attempt to develop a positive nexus opinion indicating a relationship between his current hip complaints and service; however, no such opinion was thereafter added to the record. FINDINGS OF FACT The most probative evidence of record is against a finding that the Veteran has a left hip disability causally related to, or aggravated by, active service. CONCLUSION OF LAW The criteria for service connection for a left hip disability have not been met. . 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist The Veteran has asserted that he is in possession of an in-service "line of duty" report for his left hip; however, he has failed to provide it to VA despite notification that VA has been unable to obtain it from another source. The Veteran's unit has stated that it does not have a report; therefore, further development in an attempt to obtain such a record would be futile. In March 2011, the Veteran stated that he would be providing the report (see March 2011 VA Form 21-4138), in April 2011, he again stated that he would be providing it (see April 2011 VA Form 21-0820), and in June 2011, he again stated that he would provide it (see June 2011 VA Form 21-0820). He has failed to do so. In June 2011, VA again notified the Veteran that he should submit the report. It has now been more than six years, and the Veteran has failed to provide it. The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that it does not have a further duty to assist the Veteran in substantiating his claim. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C.A. §§ 101 (24), 106, 1131. In other words, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101 (2)-(24). Presumptive periods do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he had a stress fracture of the left hip in basic training in service and that he has chronic residuals from such. The Board finds, based on the evidence as a whole, that service connection for a left hip disability is not warranted. The Veteran's service treatment records (STRs) are negative for an injury occurring to the left hip in service. The Veteran had ACDUTRA from April 2008 to August 2008. A December 2008 Medical report reflects that the Veteran reported to a provider that he had no medical concerns. His physical profile (PULHES) reflects that he had a "1" for the lower extremities. A "1" is indicative that the Veteran had a high level of medical fitness with no limitations. (See Army Regulation (AR) 40-501.) Thus, subsequent to basic training, he was not found to have any significant physical disabilities of the lower extremities. The Veteran had active duty from February 2009 to February 2010. A February 2009 pre-deployment health assessment form reflects that no referral was needed for any concerns. The only concern which was noted was that the Veteran had an allergy to bee stings. The final medical disposition was that the Veteran had no profiles, was deployable (medically ready), and that epi-pens would be ordered. A February 2009 Medical Record Supplemental Medical Data form reflects that the Veteran reported that in the past ten years, he had not had any hospitalizations or surgeries, or any physical therapy. With regard to a profile, he reported as follows: "was on profile for a small stress fracture I got in basic. - no longer on profile and it healed." He did not report the area of the stress fracture. The Veteran's February 2009 pre-deployment health assessment (DD Form 2795) reflects that he reported that his health was in general "very good", and he denied any current medical problem. No referral was indicated. The Veteran sought treatment in 2009 for mental health, a wound to his finger, and an anthrax immunization; there are no complaints of, or treatment for, his left hip. (see June, July, August, and September 2009 clinical records.) The Veteran's December 2009 post deployment health assessment (PDHA) reflects that he believed that his health was somewhat worse than before he deployed. He noted that he had trouble with breathing, trouble with concentration, memory problems, ringing in his ears, hearing trouble, and increased irritability. He specifically denied having been to sick call for swollen, stiff, or painful joints, having been on profile for such, or being bothered by such. The Veteran's January 19, 2010 post-deployment health assessment (PDHA) reflects that he believed that his health was somewhat worse than before he deployed. He again noted that he had trouble with breathing, trouble with concentration, memory problems, ringing in his ears, hearing trouble, and increased irritability. He again specifically denied having been to sick call for swollen, stiff, or painful joints, having been on profile for such, or being bothered by such. He also did not report any medical problem of the hip which developed during deployment. A January 19, 2010 STR (with regard to the Veteran's request for a medication refill for a non- orthopedic reason), reflects a history which included joint stiffness in the hip (it does not state which hip). Upon examination, the Veteran reported no generalized pain, and no swelling, stiffness, or symptoms of the hips limiting his ADLs. The report is negative for current left hip complaints and notes that the Veteran was not taking any over-the-counter medication. The Veteran's January 19, 2010 Report of Medical Assessment (DD Form 2697) reflects that since his last medical assessment/physical examination, he had been treated for psychiatric complaints, and a ruptured ear drum/ear infection; it is negative for complaints of the hip. The Veteran's June 2010 post-deployment health assessment (PDHA) reflects that the Veteran considered the following related to deployment: chest pain or pressure, diarrhea, vomiting or frequent indigestion/heartburn, and problems sleeping or still feeling tired after sleeping; he did not check the circle for swollen, stiff, or painful joints. With regard to physical symptoms, the only notation was a possible evaluation for GERD symptoms. An August 2010 VA primary care consult reflects that the Veteran sought to establish care. He reported a stress fracture of the right hip in basic training, and an incident in Iraq with a ruptured ear drum, and treatment for depression in 2009. He had "no current medical concerns" and reported that he would like to redeploy. Upon examination, he had a normal musculoskeletal system and no arthropathies. He was assessed as a "healthy young man". Several VA records in 2011 reflect that the Veteran played rugby, went rock-climbing, and played kickball. The records, which note an injury to the knee from being tackled in rugby, and an injury to the ankle from kickball and twice while rock-climbing, are negative for complaints of the left hip. (The Veteran actually denied "hip" pain when he was been evaluated for a right lower extremity injury.) A February 2011 record reflects that the Veteran reported a right hip stress fracture in service. In May 2011, he asserted that he had chronic recurring pain and painful motion of the left hip due to a 2008 stress fracture in basic training. May, August, and October 2011 DA Forms 3349 (physical profile) reflect that the Veteran was on a temporary physical profile for knee and ankle injuries; they are negative for complaints of the hip. The Veteran underwent a VA examination for his left hip in April 2011. At that time, he reported that he began having left hip pain, without injury, in basic training. He reported continued intermittent left hip pain since then which is exacerbated by walking long distances, and which is relieved by over-the counter medication. Upon examination, he had no pain on abduction, no pain on rotation, no pain on extension, and no pain on flexion. His flexion, which was painless, was to 110 degrees (full flexion would be 125 degrees). Radiology testing reflected that the Veteran's left hip imaging revealed a normal left hip. The examiner found that the Veteran had a chronic left hip strain which was less likely as not caused by service due to lack of specific trauma in service, unremarkable radiographic evidence, and physical examination findings. The Board finds that the opinion is adequate for purposes of adjudicating the Veteran's claim. In making such a finding, the Board notes that the examiner need not have considered that the Veteran had continuity of symptoms since service because the Board finds that any such allegation is less than credible. To the extent the Veteran is asserting continuity of symptomatology from basic training, to include his subsequent year of active service, such statements lack credibility as they are inconsistent with the contemporaneous evidence of record noted above in which he denied relevant symptomatology on several occasions. (Moreover, the Veteran has previously contended that it was his right hip which was fractured in service, and the present claim is for the left hip.) Importantly, in making such a credibility finding, the Board is not implying that the Veteran has any intent to deceive. Rather, the Veteran may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred years ago. Based on the foregoing, the Board finds that service connection for a left hip disability is not warranted. There is no probative evidence of record which supports a finding that the Veteran has a current left hip disability causally related to, or aggravated by, service. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the etiology of a hip disability. In sum, based on the STRs which lack treatment for the left hip, the STRs which reflect that the Veteran denied joint pain in service, the STR which notes that the Veteran reported that a prior hip injury had healed, the lack of clinical records noting complaints in the months after service, the lack of complaints of the left hip post service despite use (i.e. drills, rugby, rock-climbing, kickball), the normal post-service radiology findings for the left hip, and the VA examination report and negative nexus opinion, the Board finds that the evidence as a whole is against a finding that service connection for a left hip disability is warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a left hip disability is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs