Citation Nr: 1804625	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-14 059	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for a right hip disability, including as secondary to a service connected right ankle disability.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Kutrolli, Associate Counsel

INTRODUCTION

The Veteran served honorably in the United States Army from August 2007 to March 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined service connection for a bilateral hip disability.  Jurisdiction has since transferred to the RO in Portland, Oregon.  

In July 2016, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development.  The record reflects substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In March 2017, the Veteran was granted service connection for a left hip disability.  That issue is not before the Board.

FINDING OF FACT

There is insufficient evidence of a current right hip disability.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Service Connection for a Right Hip Disability

In this case, the Veteran seeks entitlement to service connection for a right hip disability, including as secondary to a service connected right ankle disability.  To establish service connection a Veteran must show: (1) the existence of a present 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.  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Additionally, a disability that is proximately due to, or the result of, a service connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  Whether these requirements are met is based on analysis of all the evidence of record and the evaluation of its credibility and probative weight.  38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999).  However, in the absence of current disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).   

Here, the claim fails on a direct and secondary basis because there is insufficient evidence of a current right hip disability.  See Brammer, 3 Vet. App. at 225.  The Veteran's in-service medical records are silent for any treatment or diagnosis of a right hip disability.  After filing her claim, she was afforded a VA Joints examination in February 2010 and three VA Hip and Thigh examinations-in August 2012, March 2013, and November 2016-to help substantiate her claim.  All were negative for a right hip diagnosis, and all were negative for objective evidence of painful motion during range of motion testing.  Tellingly, the Veteran denied any pain or problems with her right hip during the February 2010 exam.  Although the record indicates that the Veteran has a left hip disability, two examiners have determined that the same does not hold true for the right hip.  To the extent she has had pain in her right hip, pain alone, without an underlying disability, is not subject to service connection.  E.g., Sanchez-Benitez v. Brown, 13 Vet. App. 282, 285 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (finding that an appellant is not competent to testify to matters that require medical knowledge, training, or expertise). 

For these reasons, the preponderance of the evidence is against the finding of a current right hip disability.  Brammer, 3 Vet. App. at 225.  As a result, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Therefore, service connection on a direct or secondary basis is denied. 

II. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  In this case, the appellant has not raised any issues with the duty to notify or duty to assist.  When an appellant fails to raise procedural arguments, the Board is not required to search the record and address them.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

ORDER

Entitlement to service connection for a right hip disability, including as secondary to a right ankle disability, is denied. 


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs