Citation Nr: 1807244 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-18 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to right and left knee disorders. 2. Entitlement to service connection for a left hip disorder, to include as secondary to right and left knee disorders. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1974 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) from December 2011 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a July 2017 phone call, the Veteran informed the RO that she wished to withdraw her request for a hearing. See July 2017 statement in support of claim. In an August 2012 decision, the RO denied the Veteran's claims for increased ratings for right and left knee disorders and service connection for right and left hip disorders. The Veteran timely filed a notice of disagreement. All four issues were addressed in a March 2014 statement of the case. The Veteran's April 2014 VA Form 9 only lists the claims of entitlement to service connection for right and left hip disorders. As the claims of entitlement for increased ratings for right and left knee disorders were not listed on the April 2014 VA Form 9, the Board does not have jurisdiction over these claims. FINDINGS OF FACT 1. The weight of the evidence is against a nexus between the Veteran's right hip disorder and the Veteran's right and left knee disorders. 2. The weight of the evidence is against a nexus between the Veteran's left hip disorder and the Veteran's right and left knee disorders. 3. There is clear and unmistakable evidence the Veteran's right hip disorder preexisted service and clear and unmistakable evidence that the disorder was not aggravated beyond its natural progression during service. 4. There is clear and unmistakable evidence the Veteran's left hip disorder preexisted service and clear and unmistakable evidence that the disorder was not aggravated beyond its natural progression during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip disorder as secondary to right and left knee disorders have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for left hip disorder as secondary to right and left knee disorders have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. A chronic right hip disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). 4. A chronic left hip disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran offers two bases for entitlement to service connection for right and left hip disorders. The first is that the Veteran's right and left hip disorders were proximately due to or aggravated by the Veteran's service-connected right and left knee disorders. The second is that pre-existing right and left degenerative hip disorders were aggravated by service. Service connection may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id at 447-48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998). The Veteran has degenerative arthritis of both knees, which constitutes a current disability. Unfortunately, secondary service connection must be denied because the weight of the evidence is against a nexus between a current hip disorder and the Veteran's service-connected right and left knee disorders. A September 2013 VA examiner opines that the Veteran's right and left hip disorders are less likely than not proximately due to or the result of the Veteran's service-connected right and left knee disorders. Part of the rationale is that the examiner could find nothing in the medical literature supporting chondromalacial patellae of the knees as a factor in developing hip degeneration. Furthermore, there is no evidence of an in-service physiological insult that could have triggered hip degeneration. Also, the Veteran's complaints of hip pain did not start until 20 years after service. For these reasons, the September 2013 VA examiner opines that the Veteran's right and left hip disorders are less likely than not related to her service-connected right and left knee disorders. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Consistent with this, a March 2014 VA medical examiner also opines that the Veteran's right and left hip disorders are less likely than not proximately due to or the result of the Veteran's service-connected right and left knee disorders. This is based on x-ray evidence and medical guidelines. Also, the examiner cites to a July 2011 orthopedic consult, in which the Veteran states that she began having bilateral hip pain in 1995, following a "motor vehicle accident in which she had foot fractures requiring extended rehab." Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). The March 2014 VA medical opinion is probative, in that it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301-02. The weight of the evidence as contained in the September 2013 and March 2014 VA medical opinions is against a nexus between the Veteran's current right and left hip disorders and her service-connected right and left knee disorders. Without nexus, service connection on a secondary basis must be denied. In reaching this conclusion, the Board has considered private medical opinions provided by the Veteran. A March 2012 private medical opinion by Dr. H. states: "More likely as not her hip problems were a secondary condition to her work duties in the US Navy Hospital Corps that caused her knees and hip problems leading to her recent hip surgeries." An April 2012 private medical opinion by Dr. W. states: "It is also possible that [the Veteran's] limping stems from degenerated knee joints that she is now up and walking more." An August 2013 private medical opinion by Dr. L. states: "From the history provided, within reasonable medical certainty and more likely than not, the patient's bilateral hip condition was aggravated by the condition for which she has received the disability award from the military." There are three problems with the private medical opinions. First, there is no indication that the examiners reviewed the Veteran's medical records. Rather, their opinions appear to be based entirely on the Veteran's current symptoms. The August 2013 medical opinion contains the prior dates of the Veteran's hip replacement surgeries, but otherwise appears to consist of the Veteran's oral history. The other medical opinions contain even less information. None of the opinions cite to specific medical records as the basis of their opinion. Second, even assuming that medical records were reviewed, there is no rationale supporting the conclusion that there is a nexus between the Veteran's right and left hip disorders and her service-connected right and left hip disorders. Third, no opinion addresses the Veteran's 1995 motor vehicle accident as the source of her bilateral hip pain. For these reasons, the private medical opinions are of minimum probative value and entitled to less weight than the VA medical opinions. The Veteran has argued that the private medical opinions from Dr. H. should be entitled to greater weight because he has "over 30 years of my medical history from being my doctor" and "has a more thorough history of my conditions to include my past military time." June 2013 notice of disagreement; see also November 2017 appellate brief. However, Dr. H.'s opinion begins as follows: "Patient [the Veteran] came to my office as a new patient . . . ." See March 2012 private medical opinion (emphasis added). Since he did not start treating the Veteran until March 2012, he does not have personal knowledge of the Veteran's hip disorders prior to March 2012, including her 1995 motor vehicle accident. Furthermore, even assuming that the doctors who wrote the private medical opinions have better personal knowledge of the Veteran's medical condition than the VA doctors, this would not change the outcome here. This is because the private medical opinions contain no rationale explaining why there is a nexus between the Veteran's hip disorders and knee disorders. By contrast, the VA medical opinions contain detailed rationales based on medical literature and the Veteran's treatment records. For these reasons, the Veteran's arguments by themselves do not affect the weight the Board is affording the VA medical opinions. There is also a May 2012 VA medical examination in which the examiner opines that "the claimed condition is less likely than not due to or a result of the service-connected condition." Like the private medical opinions, the May 2012 VA medical opinion contains no rationale. The May 2012 VA medical opinion is therefore entitled to less weight than the September 2013 and March 2014 VA medical opinions in assessing entitlement to service connection. The Veteran also argues that she is entitled to service connection because she had pre-existing, degenerative right and left hip disorders that were aggravated by service. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any 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). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is "cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable . . . ." Id. at 261. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (internal citations omitted). The Veteran's entrance examination does not mention a pre-existing hip disorder. Nevertheless, the March 2014 VA examination states that the Veteran's right and left hip disorders "clearly and unmistakably existed prior to service." This is based on an x-ray report dated March 2003 and a discharge summary dated September 2009, both of which indicate congenital hip dysplasia. This opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301-02. The March 2014 VA examination, then, constitutes clear and unmistakable evidence that the Veteran's right and left hip disorders existed prior to service. Having found that the evidence clearly and unmistakably shows that the Veteran's right and left hip disorders preexisted service, the Board must now consider whether the evidence clearly and unmistakably shows that the preexisting disorders were not aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The March 2014 VA examiner opines that the Veteran's "bilateral hip arthritis was secondary to natural progression of congenital hip dysplasia and not aggravated by her service-connected knee condition." This opinion is based in part on a September 2011 discharge summary that describes "right hip DJD secondary to congenital hip dysplasia." It is also based on a March 2008 x-ray report and July 2011 orthopedic consult. The orthopedic consult states that hip pain began in 1995, following a car crash. This opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301-02. This evidence clearly and unmistakably shows that the Veteran's right and left hip disorders were not worsened beyond the natural progress of the disease during service. Accordingly, the Board finds that the Veteran's right and left hip disorders clearly and unmistakably existed prior to the Veteran's active duty service and that the evidence clearly and unmistakably shows that these disabilities were not worsened beyond the natural progress of the diseases during service. Therefore, service connection for right and left hip disorders is not warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds that a discussion of whether the presumption of aggravation has been rebutted in this case under the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(b) is unnecessary. The Board has found by clear and unmistakable evidence that the Veteran's right and left hip disorders were not aggravated by service and that there was a preexisting disorder. VA's General Counsel has held that such a finding would necessarily be sufficient to rebut the presumption of aggravation. See VAOPGCPREC 03-2003 at ¶ 18 (July 16, 2003). Accordingly, the Board concludes that service connection for right and left hip disorders is not warranted. In reaching this conclusion, the Board has considered the three private medical opinions cited above. These opinions are stated in terms of "more likely [as/than] not." As already noted, this is a lower standard than "clear and unmistakable evidence." See Vanerson, 12 Vet. App. at 258. Even if the private opinions had a sufficient rationale and were based on a review of the Veteran's medical records, since the private opinions are not based on "clear and unmistakable evidence," they would nevertheless be inadequate in assessing whether the Veteran right and left hip disorders clearly and unmistakably worsened beyond the natural progress of the disease during service. In assessing both theories of entitlement to service connection, the Board has considered lay statements submitted by the Veteran and individuals who know her. In a March 2012 lay statement, the Veteran describes hip pain and other symptoms resulting from a 1996 motor vehicle accident. In an April 2012 lay statement, a former co-worker describes hip pain and mobility issues that the Veteran experienced in 2009. May 2012 statements from the Veteran's family members describe the Veteran's pain and mobility issues from her time in service to the present. The Veteran is competent to testify as to what she experienced and her friends and family are competent to testify as to what they observed because such symptoms are within the knowledge and personal observations of lay witnesses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no reason to question the credibility of these statements, particularly when they consistently indicate ongoing hip pain and mobility problems. Unfortunately, however, such statements from lay witnesses are not competent to satisfy a nexus or establish whether a right or left hip disorder clearly and unmistakably preexisted service and was not aggravated beyond the natural progress of the disorder during service. They are therefore entitled to less evidentiary weight with regard to nexus or aggravation and by themselves or in corroboration with other evidence of record, are inadequate to establish service connection by way of aggravation or on a secondary basis. ORDER Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a left hip disorder is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs