Citation Nr: 18152476 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-19 944 DATE: November 27, 2018 ORDER A request to reconsider service connection for a left hip disability is granted and the claim will be reconsidered. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a low back disability, claimed as due to a left hip disability, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a psychiatric disability is denied. FINDINGS OF FACT 1. A July 2012 rating decision denied service connection for a left hip disability and the Veteran did not appeal that decision. 2. New evidence associated with the claims file since the July 2012 denial of the claim for service connection for a left hip disability includes relevant official service medical records not previously considered. 3. The Veteran claimed left hip disability both pre-existed service and was clearly and unmistakably not aggravated by service. 4. As the Veteran's left hip disability both pre-existed service and was not aggravated by service, the low back disability, claimed solely as due to the claimed left hip disability, is not related to a service-connected disability and a low back disability is not otherwise shown to be related to service. 5. The Veteran’s hypertension did not manifest to a compensable degree within one year of service; continuity of symptomatology since discharge is not established; and the record does not contain any current diagnosis of a psychiatric disability. 6. The Veteran’s claimed psychiatric disability did not manifest to a compensable degree within one year of service; continuity of symptomatology since discharge is not established; and the claimed disability was not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. As evidence received since the July 2012 denial includes relevant official service medical records not previously considered, the criteria for reconsideration of the claim for service connection for a left hip disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria for entitlement to service connection for a low back disability, to include as due to a left hip disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for entitlement to service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 7, 1973, to October 29, 1973. 1. Whether a previously denied a claim for service connection for a left hip disability should be reconsidered. To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA denied the Veteran's claim for service connection for a left hip disability in a July 2012 rating decision. At the time of the issuance of the July 2012 rating decision, the record of evidence did not contain any copies of the Veteran’s service medical records. The record indicates that the VA Agency of Original Jurisdiction (AOJ) attempted to find the service medical records in accordance with federal procedures. Having failed to procure any records despite the required attempts, a May 2012 Formal Finding of Unavailability was issued regarding those records. The July 2012 decision denying service connection for a left hip disability indicated that the record of evidence did not contain sufficient evidence showing that the Veteran had any left hip disability symptomatology during service. The Veteran did not appeal the July 2012 rating decision in a timely manner. 38 C.F.R. §§ 20.200, 20.201 (2016). Typically, the Veteran's failure to file a timely appeal to a rating decision would make the decision final as to the evidence then of record and not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under such circumstances, VA could only reopen and review such a claim if new and material evidence were to be submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). In this case, service medical records, previously unavailable and not of record, were associated with the claims file in August 2014. Those records indicate treatment during service for left hip disability symptomatology. As those records date back to the Veteran's period of service, the records existed at the time of the July 2012 rating decision, but were not associated with the claims file or considered at that time of the previous final denial. The additional service records received require reconsideration of the claim for service connection for a left hip disability. That makes the prior denial non-final. The claim will be reconsidered. 2. Entitlement to service connection for a left hip disability. In most instances, the Veteran is entitled to a presumption that he was physically sound as to all disabilities not listed on the service entrance examination report. 38 U.S.C.§ 1111. The Veteran’s service medical records do not contain a service entrance examination report and, therefore, the presumption of soundness does not apply as no entrance examination is not record. In cases where a disease or injury at issue is not noted on a service entrance examination, a two-pronged test usually is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, a threshold requirement for the applicability of the presumption of soundness is that the Veteran must have served on active duty for a continuous period of 90 days or more. 38 U.S.C.§ 1111. In this case, the Veteran served for less than two months and, therefore, is not shown to have served 90 days on active duty. Therefore, the Veteran's service is not entitled to potential application of the presumption of soundness. Grose v. Brown, 4 Vet. App. 144 (1993). Reviewing the evidence, the service personnel records indicate that the Veteran entered service on September 7, 1973. In a September 14, 1973, medical board examination report, a service medical board noted that the Veteran had abnormalities of the lower extremities, specifically status post intertrochanteric fracture of the left femur, status post open reduction and internal fixation of the femur, and limitation of motion of the left hip secondary to the femur abnormalities. In a September 18, 1973, service medical board report, the examiner noted that the Veteran was a 17-year-old who had a history of multiple gunshot wounds in September 1972. The examiner stated that one wound involved the intertrochanteric region of the left femur causing a fracture and necessitating an open reduction with internal fixation surgical procedure. The examiner indicated that the Veteran was in his first week of basic training and was experiencing severe pain localized in the left hip. On examination, the examiner noted a healed incision over the surgical site, and decreased muscle mass in the gluteal and thigh region. The examiner diagnosed disabilities that existed prior to service, specifically status post intertrochanteric fracture of the left femur, status post open reduction and internal fixation of the femur, and limitation of motion of the left hip secondary to the femur abnormalities. The examiner stated that the Veteran was unfit for induction into service and medically cleared him for separation. In an October 5, 1973, report of service medical board proceedings, the medical board determined both that the left hip disabilities mentioned in the previous medical board documents both preexisted service and were not aggravated by active duty. On an October 17, 1973, application for expeditious discharge, the Veteran requested a discharge for a physical disability. In the application, the Veteran stated that he had been informed that, based on the medical board’s findings and recommendations, he was considered unfit for retention in service by reason of a physical disability that had been found to have both existed prior to service, and which was neither incident to nor aggravated by service. The Veteran acknowledged that, if his application for a discharge were approved, he would be separated from service by reason of the physical disability that existed prior to service. The Veteran has made lay statements indicating that he experienced a left hip injury during service. For example, in a March 2011 application for benefits, the Veteran wrote that he experienced a left hip injury during service, resulting in severe pain and suffering. In a July 2014 statement, the Veteran wrote that he experienced a hip injury during basic training. Post-service treatment records from 2013 to the present indicate treatment for a left hip disability, characterized by pain. The evidence indicates that the Veteran has a left hip disability, characterized by pain. A current disability is demonstrated. Although the Veteran has made statements suggesting that he initially injured his left hip during basic training, the evidence clearly and unmistakably demonstrates that the Veteran had preexisting left hip disabilities upon entrance into service. Thus, the Board must determine whether the shows that any left hip disability was aggravated beyond its natural progression in service. The Board finds that the evidence is clearly and unmistakably against the Veteran's claim for service connection. Despite the Veteran's statements, the Board notes that the medical evidence, specifically the findings of the service medical board, weigh against a finding that the Veteran's left hip disabilities were aggravated by service. The service medical records indicate that the medical board examined the Veteran one week after his service entrance, soon after his report of hip pain during basic training. After examining the Veteran, the medical board wrote that the Veteran had left hip disabilities that preexisted service, as evidenced by incisional scars and decreased muscle mass related to treatment for those disabilities. After their examinations, the medical board found that the Veteran's disabilities both preexisted service and were not aggravated during service. After the medical board had written a report, in his October 1973 application for expeditious discharge, the Veteran indicated that he understood the medical board’s findings. The Board, therefore, finds that the Veteran had preexisting left hip disabilities that were not worsened by service. The evidence is clear and unmistakable that the Veteran’s preexisting left hip disability was not aggravated during the approximately one week of service prior to initiation of separation proceedings, or during his brief period of active service. In his claims for service connection, the Veteran reported experiencing a current left hip disability that he claimed was caused by an in-service injury incurred during basic training. While the Veteran may speak to whether he experienced pain during service, he does not have the medical expertise to determine whether a condition began or was medically worsened by his service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). In his statements, the Veteran completely ignored the presence of preexisting left hip disabilities, noted in his service medical records, which he acknowledged at his separation from service. The Board finds the Veteran's statements suggesting in-service incursion of a left hip disability to be less credible than the opinions of the service medical Board and, as such, they are afforded less probative weight. In addition, because those statements do not discuss the preexisting left hip disability, the credibility of those statements is seriously lessened. In sum, the evidence demonstrates that the Veteran does not have a left hip disability related to service, to include due to an in-service aggravation of a preexisting left hip disability, and service connection must be denied. There is clear and unmistakable evidence that a left hip disability preexisted service and was not aggravated during service 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a low back disability, claimed as due to a left hip disability. Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a nonservice-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. On a July 2014 claim for VA benefits, the Veteran wrote that he had a “back condition derived” from a claimed left hip disability. The Veteran has made no other statements regarding the claimed low back disability. As the Veteran is claiming service connection for a low back disability caused by his left hip disability and the Board has denied service connection for a left hip disability, service connection for the low back disability must also be denied. Secondary service connection cannot be established where the primary disability is not service-connected. In addition, no objective evidence of record shows that any current low back disability is related to service or any incident of service, and the Veteran has not alleged any such connection. Therefore the claim for service connection for a back disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for hypertension. To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran is seeking entitlement to service connection for hypertension. The Veteran's service medical records are negative for a diagnosis of hypertension and there is no evidence of a diagnosis within a year of separation from active service. Although the Veteran filed a claim for service connection for “high blood pressure,” the Veteran did not make any statement indicating why he believed the disability began during service. The post-service treatment records do not report a diagnosis of hypertension prior to 2013, many decades after the Veteran's separation from service. The Veteran has not submitted any competent evidence relating hypertension to service, or submitted any statement relating hypertension to service. An examination is not warranted because an event, injury, or disease in service is not shown to which hypertension is claimed related. 38 C.F.R. § 3.159(c)(4). As the probative evidence of record fails to show that the Veteran's hypertension had onset in service or within one year of service, or that it is otherwise related to service, entitlement to service connection must be denied. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for a psychiatric disability. To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran is seeking entitlement to service connection for a psychiatric disability, specifically depression. The Veteran's service medical records are negative for a diagnosis of any psychiatric disability and there is no evidence of a diagnosis of a psychosis within a year of separation from active duty service. Moreover, the post-service treatment records, to specifically include those created during the pendency of the appeal, do not contain any notation indicating diagnosis or treatment for a psychiatric disability. Of note, in a November 2013 VA homeless program note, the Veteran specifically denied having any current mental health issues. Subsequent treatment records contain no indication that the Veteran sought treatment for any psychiatric disabilities. While the Veteran might believe that he has depression, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent the presence of any diagnosed psychiatric disability, to specifically include any related to service, during the pendency of the appeal, service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds that the preponderance of the evidence is against the claim for a psychiatric disability and service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel