Citation Nr: 1802953 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-31 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral Cormet femoral resurfacing as secondary to service-connected lumbar spondylosis and degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to November 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 and February 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript of this hearing has been obtained and associated with the record. In October 2016, the Board remanded the issue for further development. The appeal has been returned to the Board for further adjudication. FINDING OF FACT The Veteran's bilateral Cormet femoral resurfacing was not caused by or aggravated by the service-connected low back disability. CONCLUSION OF LAW The criteria for secondary service connection for bilateral Cormet femoral resurfacing as secondary to the service-connected low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA provided the Veteran with 38 U.S.C.A. § 5103(a)-compliant notice in January 2009 and June 2009. VA also fulfilled its assistance obligations to the Veteran, including with respect to affording him VA examinations in June 2009, February 2010, and November 2016. Service Connection Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his bilateral Cormet femoral resurfacing is secondary to his service-connected lumbar spine disability with radiculopathy. In support of his contention, the Veteran submitted a statement from Dr. C., the Veteran's orthopedic surgeon. Dr. C. stated that causation is a very difficult thing to ascertain especially in the setting of a non-traumatic event, but that wear and tear could be considered forthcoming from the level of activity that was required of the Veteran during his military stent as degenerative arthritis can also occur just as a natural consequence of an individual's lifestyle and activities is very difficult sometimes to be absolutely specific as to causation. The opinion from Dr. C. appears to be very cautious and speculative regarding causation. It also seems to speak to direct service connection as opposed to secondary service connection. There is no evidence of a hip condition during service and the Veteran's claim has been predicated on the theory of secondary service connection. For these reasons the statement from Dr. C. is not probative as to the issue of secondary service connection. The Veteran was afforded a VA spine examination in June 2009. The Veteran reported chronic low back pain that was constant but varied in severity. He reported the pain radiated to both legs and ankles. The examiner provided a negative opinion on whether the Veteran's left hip degenerative joint disease (DJD) and resulting Cormet resurfacing were caused by his service-connected lumbar spine disability. The examiner stated the left hip DJD was age related and left hip DJD with resultant need for the total hip replacement was not due to or caused by his service-connected lumbar disc disability. No opinion was provided on whether the Veteran's left hip condition was aggravated by his service-connected lumbar spine disability. A February 2010 VA opinion states the Veteran's right hip degenerative joint disease with resulting Cormet resurfacing was not due to or caused by his service-connected lumbar spine disability. The rationale provided was that a review of the medical evidence indicated that the Veteran underwent a right hip replacement secondary to DJD of the right hip. The examiner went on to state there is no medical support for an association between degenerative disc disease of the lumbar spine and the development of degenerative joint disease of the hips. The examiner stated that the Veteran's right hip with resultant need for hip replacement was not due to or caused by his service-connected lumbar disc disease. Again, no opinion was provided on whether the Veteran's right hip condition was aggravated by his service-connected lumbar spine disability. During a July 2016 Board hearing, the Veteran testified that he began having pain in his hips while he was in service and received treatment for hip pain in service. According to the Veteran's service treatment records (STR's), while there are several complaints of and treatment for low back pain, there is no indication of any complaints of hip pain or a diagnosis of a hip disability in service. The Veteran also stated that he was told that the radiating the pain in his hips was due to his lumbar degenerative disc disease; however, there is no evidence in the claims file or statement from a medical professional that supports that contention. The record was held open pending the Veteran's submission of additional medical evidence to support his claim; however, no positive medical opinions have been received. In an October 2016 Board remand, the June 2009 and February 2010 opinions were found to be inadequate for rating purposes as the issue of whether the Veteran's bilateral hip condition was aggravated by his service-connected lumbar spine disability had not yet been addressed. The issue was remanded for a VA opinion on aggravation. In a November 2016 addendum opinion, after a review of the record, the VA examiner opined that it is less likely than not that the Veteran's degenerative hip disease was aggravated by his service-connected lumbar spondylosis and degenerative disc disease. The rationale provided was that aggravation means the condition permanently worsened, not just caused temporary pain increase or symptom increase. The examiner noted a July 2008 EMG that showed changes at L4-5 and radiculopathy associated with mild loss of motor axons which would not be inclusive of the muscles of the hips. The examiner also noted a November 2014 treatment note that indicated the Veteran was doing well after a left total hip revision, and was doing fine after a resurfacing arthroplasty on the right hip except for some mild pain, and had a normal neurologic examination of the lower extremities. The examiner also stated that biomechanically, joint forces in the lower extremity are proportional to the gait velocity. Without a severe lumbar condition, including a severe alteration in mechanics and neurologic changes to affect the hip, the changes from the alterations of any gait or mechanics would not be significant enough to affect the change at the hips. The examiner stated that with the Veteran's lumbar spondylosis and hip arthritis, the alteration in mechanics would have involved shorter strides, decreased gait velocity, and a decrease in the force transmissions. While the Board acknowledges the current diagnosis of a bilateral hip disability, and the Veteran's claim that it is secondary to his service-connected lumbar spondylosis and degenerative disc disease, the preponderance of the evidence does not support the claim. The Veteran's contention that his bilateral hip condition was caused or aggravated by his service-connected lumbar spine disability has been considered by the Board. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of arthritis in the hips, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is not shown to have medical expertise or experience in this area. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. The Board finds the June 2009, February 2010, and November 2016 VA opinions to be persuasive evidence as they were based on a review of the record, accompanied by a clear rationale, and have not been refuted by any other competent evidence. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for secondary service connection for bilateral Cormet femoral resurfacing must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for bilateral Cormet femoral resurfacing as secondary to service-connected lumbar spondylosis and degenerative disc disease is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs