Citation Nr: 18157095 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 18-38 276A DATE: December 11, 2018 ORDER Entitlement to service connection for a right hip disability, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury is denied. FINDINGS OF FACT 1. A right hip disability is not currently manifest and did not manifest at any point during the appeal period. 2. A left hip disability diagnosed as left hip osteoarthritis did not manifest in service and is not attributable to service; osteoarthritis of the left hip did not manifest within one year of separation from service. 3. A left hip disability diagnosed as left hip osteoarthritis is not caused or aggravated by service-connected disease or injury. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. A right hip disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2017). 3. A left hip disability was not incurred or aggravated during service, nor may arthritis of the left hip be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. A left hip disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1949 to February 1953. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection The Veteran contends that he has right and left hip disabilities that are due to his service, to include an injury from playing football. He alternatively contends that he has current right and left hip disabilities that are secondary to his service-connected right and left knee bursitis. He has not contended, nor does the evidence   of record otherwise show, that he has right and left hip disabilities related to any remaining service-connected disabilities which consist of bilateral sensorineural hearing loss and tinnitus. Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish   chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 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 or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b).   For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). Right hip disability The evidence of record establishes that the Veteran does not have a current disability of the right hip. Notably, the Veteran was afforded a VA examination for his claimed right hip disability in July 2017. After examination of the Veteran and consideration of his medical history, the VA examiner declined to diagnose the Veteran with a right hip disability. He specifically reported a normal examination of the right hip. There are no medical findings contrary to the VA examination report. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a current disability of the right hip. In this regard, the Board finds it highly probative that the VA medical findings do not document any objective evidence of such and that such findings were based on a thorough examination. The Board has considered the Veteran’s statements that he has a right hip disability. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is a current disability of the right hip. The Veteran’s lay assertions are therefore afforded less probative weight, and less credibility than the VA medical findings. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a disability of the right hip due to service or service-connected disease or injury. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a right hip disability under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left hip disability Direct and presumptive service connection The Board notes that the Veteran has been diagnosed with a left hip disability, specifically osteoarthritis of the left hip. See, e.g., a VA examination report dated July 2017. To the extent that the Veteran contends that his left hip osteoarthritis is related to service, to include injury to the hip from playing football, the Board finds that the objective evidence outweighs this contention. Crucially, the Veteran’s service treatment records indicate no suggestion of treatment for or complaints of symptoms related to the left hip. Although his service treatment records document injury from playing football in February 1950, only the Veteran’s left knee is documented as injured. Additionally, his service examinations to include his separation examination indicated normal examination of the hips. Further, although the Veteran reported in correspondence dated October 2016 that he had hip pain since service, he reported during the July 2017 VA examination that he has had hip pain since 2016. Indeed, the earliest indication of a left hip disability dating back to service is in 2016 when the Veteran filed his claim for VA benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. This is more than 60 years after the Veteran’s discharge from service. The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran can competently testify about symptoms he experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s history of a left hip disability since service is outweighed by the objective evidence of record in light of the lack of any post service identification until 2016 as well as the available service treatment records which indicate normal findings with regard to the left hip. Therefore, to the extent that the Veteran contends that his left hip disability manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service and his denial of pertinent pathology. As such, the Veteran’s statements are lacking probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no credible evidence of an in-service manifestation of a left hip disability. To the extent that the Veteran asserts that his left hip disability is related to service, the Board finds that the Veteran’s statements regarding this disability being incurred in service is not credible given the objective evidence of record to include the service treatment records and the postservice medical records. The Board also notes that while the Veteran currently evidences osteoarthritis of the left hip, in as much as the service treatment records reveal normal orthopedic examinations, he did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). The Veteran has not contended otherwise. Secondary service connection As discussed above, the competent evidence establishes that the Veteran has osteoarthritis of the left hip. Additionally, the Veteran is currently service-connected for right and left knee bursitis. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current osteoarthritis of the left hip is due to or aggravated by his service-connected right and left knee bursitis and service connection is therefore not warranted on a secondary basis. Specifically, the Veteran was provided a VA examination for his left hip in July 2017. After examination of the Veteran and consideration of the Veteran’s medical history, the examiner diagnosed the Veteran with osteoarthritis of the left hip and concluded that it is less likely than not that the left hip disability is caused or aggravated by the Veteran’s service-connected right and left knee bursitis. The examiner’s rationale for his conclusion was based on his finding that the Veteran’s left hip osteoarthritis is due to normal aging. The July 2017 VA examination report was based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current left hip ostearthritis is not caused or aggravated by the service-connected right and left knee bursitis. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. The Board observes that the Veteran has indicated that he has a left hip disability secondary to his service-connected right and left knee bursitis. The Board notes that the Veteran is competent to report that he has been diagnosed with osteoarthritis of the left hip and bursitis of the right and left knees. However, to the extent the Veteran proffers this information as a positive nexus between his left hip osteoarthritis and right and left knee bursitis, the Board finds that such an opinion is outweighed by the evidence of record, in particular the July 2017 VA medical opinion which was based on thorough review of the Veteran’s pertinent medical history and medical condition and supported by an adequate rationale. Therefore, this lay evidence is accorded little probative value. Here, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury. The benefit sought on appeal is accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel