Citation Nr: 18156180 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-16 202 DATE: December 7, 2018 ORDER Service connection for a right hip condition is granted. FINDING OF FACT The medical evidence is in relative equipoise regarding whether the Veteran’s current right hip condition was incurred in service. CONCLUSION OF LAW The criteria for service connection for right hip condition have been satisfied. 38 U.S.C. §§ 1110, 1131, 1132, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1954 to August 1956. Entitlement to service connection for a right hip condition Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the majority of the Veteran’s service medical records are unavailable. In March 2016, the National Personnel Records Center (NPRC) notified the VA that none of the Veteran’s service treatment records (STRs) were recovered from the July 1973 fire. As such, the Board has a heightened duty to assist the Veteran in the development of his claim and to carefully consider the so-called “benefit of the doubt” rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran’s July 1956 report of medical examination at discharge indicates a clinically normal lower extremity evaluation. However, the Veteran contends that as a parachute tester with over 100 jumps during service, the Veteran injured his right hip during service. He reported falling and being dragged during landings, and that in June 1956 he injured his back and bilateral hips when his parachute collapsed. He reported he was assigned to the 82nd Airborne at the time of the injury and that he received treatment at a field hospital. The Veteran’s DD-214 indicates the Veteran received a parachute badge, and the Veteran’s report is credible of experiences of a parachute tester. Since the Veteran’s evidence is consistent with the places, types, and circumstances of his service, his injury is recognized. See 38 U.S.C. § 1154 (a). VA treatment records indicates complaints of right hip pain. At the September 2016 VA medical examination, the examiner did not review any medical records nor the Veteran’s claims file, and did not conduct any imaging. The examiner noted no current diagnosis of a right hip disability. At the March 2017 VA medical examination, the Veteran reported chronic bilateral hip pain. The examiner reviewed the Veteran’s VA treatment records and conducted imaging to confirm a diagnosis of bilateral hip osteoarthritis. She opined that given the Veteran’s multiple parachute jumps and one particular injury, it was more likely than not that the Veteran’s hip pain was related to his time in service. The medical evidence is in relative equipoise regarding whether the Veteran’s current right hip condition was incurred in service. The Board will afford the Veteran the benefit of the doubt and grant the service connection claim. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel