Citation Nr: 1804427 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-28 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for arthritis of the spine. REPRESENTATION Veteran is represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a videoconference hearing before a Veterans Law Judge in November 2016. However, he failed to appear for the hearing and has not shown good caused for his failure to appear. Accordingly, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2017). This matter was previously before the Board in February 2017, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Arthritis of the left hip was not shown in service or for many years thereafter, and the most probative evidence indicates that a current left hip disability is not related to service or a service-connected disability. 2. Arthritis of the spine was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's current arthritis of the spine is not related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for establishing entitlement to service connection arthritis of the spine have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Left Hip The Veteran seeks service connection for a left hip disability, which he asserts was caused by an in-service fall from a telephone pole, or alternatively, secondary to his service-connected thoracic spine injury. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current left hip disability is related to service or the Veteran's service-connected thoracic spine injury. A July 1953 service treatment record shows that the Veteran fell from a telephone pole and sustained lacerations to the scalp, nose, and upper lip and reported pain in the back, left hip, and left buttock. X-rays of the thoracic spine revealed minimal compression fractures of T-10, 11, and 12. X-rays of the pelvis and left hip were normal, and the diagnosis was a left hip sprain with contusion to the left buttock. The Veteran was treated with casting for about three months. Thereafter, service treatment records show no additional complaints of or treatment for a left hip disability. A March 1953 report of medical examination indicates that the Veteran's lower extremities were normal upon his discharge from active duty. The Veteran previously filed a service connection claim for a left hip disability in March 1955. X-rays of the left hip performed during an April 1955 VA examination were negative, and no left hip disability was diagnosed. The Veteran's claim was denied for a lack of a current disability. To the extent that the Veteran claims to have experienced continued left hip pain since service, his statements are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record). Despite seeking treatment for various conditions, VA and private treatment records show no complaints of or treatment for left hip pain until the Veteran filed his claim to reopen service connection April 2012. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran underwent VA examinations in September 2012 and June 2017, during which he reported intermittent left hip pain. X-rays revealed mild degenerative joint disease of both hips and sacroiliac (SI) joints. It was noted that the Veteran had severe osteoporosis of the thoracolumbar spine, which is a metabolic bone disease and unrelated to his in-service thoracic spine injury. The September 2012 VA examiner opined that the Veteran's left hip arthritis was less likely than not incurred in or caused by service because he had the same amount of arthritis in both hips. The examiner also opined that the Veteran's left hip arthritis was less likely than not caused by his service-connected dorsal spine injury alone because the Veteran has since developed much more pathology in the rest of his spine, including osteoporotic fractures of the lumbar spine and arthritis of the SI joints. The June 2017 VA examiner likewise opined that the Veteran's left hip arthritis was less likely than not caused or aggravated by his service-connected thoracic spine injury. The examiner explained that the Veteran's compression fractures healed during service, and x-rays of the left hip taken during service and after service were negative. Moreover, x-rays revealed mild degenerative changes in the left hip more than 55 years after the Veteran's in-service thoracic spine injury, and his left hip arthritis has not required any invasive treatment or physical therapy, which is suggestive of a non-exacerbated clinical course. There is no medical opinion to the contrary. Although the Veteran believes that a current left hip disability is related to service or his service-connected thoracic spine injury, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of hip disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current left hip disability is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a left hip disability is denied. See Gilbert, 1 Vet. App. at 53. Arthritis of the Spine The Veteran seeks service connection for arthritis of the spine, which he asserts was caused by the in-service fall from a telephone pole, or alternatively, secondary to his service-connected thoracic spine injury. As noted in the Board's February 2017 decision and remand, the Veteran's service-connected thoracic spine injury has been evaluated based on limitation of motion of the thoracolumbar spine under the General Rating Formula for Diseases and Injuries of the Spine, and the diagnosis assigned to the Veteran's service-connected back disability does not affect the rating assigned in this case. Nevertheless, the Veteran is seeking service connection for arthritis of the spine. Upon review of the record, the Board finds that the most probative evidence of record is against a finding that the Veteran's arthritis of the spine is related to service or his service-connected thoracic spine injury. As noted above, service treatment records show that the Veteran sustained minimal compression fractures of T-10, 11, and 12 in July 1953 after falling from a telephone pole. X-rays performed in December 1953 indicated that the compression fractures were well-healed. X-rays performed in April 1955 revealed slight wedging of the bodies of T-3 and T-5 due to previous minimal compression injuries, but there was no evidence of joint narrowing or arthritis. The Veteran underwent VA examinations in September 2012 and June 2017, and x-rays revealed degenerative arthritis of the spine and osteoporosis. The September 2012 VA examiner opined that the Veteran's arthritis was less likely than not incurred in or caused by the in-service fall because the Veteran had the same amount of hypertrophic spurring of osteoarthritis in the lumbar spine and SI joints as the thoracic spine. It was also noted that the Veteran had degenerative joint disease in every joint that was x-rayed and numerous compression fractures throughout the spine secondary to osteoporosis, which is a metabolic bone disease and unrelated to his in-service thoracic spine injury. The June 2017 VA examiner opined that the Veteran's arthritis of the spine was less likely than not caused or aggravated by his service-connected thoracic spine injury because his thoracic arthritis has not required any physical therapy or invasive treatment, which is suggestive of a non-exacerbated clinical course. There is no competent medical opinion to the contrary. Although the Veteran believes that his current arthritis of the spine is related to service or his service-connected thoracic spine injury, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and etiology of spine disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his current arthritis of the spine is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for arthritis of the spine is denied. See Gilbert, 1 Vet. App. at 53. ORDER Service connection for a left hip disability is denied. Service connection for arthritis of the spine is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs