Citation Nr: 1807382	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  13-09 203A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for a right hip condition, as variously diagnosed to include avascular necrosis and residual thereof, to include as secondary to service-connected bilateral pes cavus.


REPRESENTATION

Veteran represented by:	Noah Yanich, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Elizabeth Jamison, Associate Counsel


INTRODUCTION

The Veteran had active military service in the United States Army from July 1969 to February 1971.

This matter comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in relevant part, denied entitlement to service connection for a right hip condition.  A notice of disagreement (NOD) was received in March 2010, a statement of the case (SOC) was issued in February 2013, and a substantive appeal was submitted later in February 2013.

In October 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a travel Board hearing; a transcript of the proceeding is of record.

Additional medical evidence has been associated with the Veteran's claims file since the issuance of the February 2013 SOC.  However, there is no prejudice to the Veteran in the Board proceeding with adjudication at this time in light of the favorable decision herein to grant the right hip claim. 

The issue of entitlement to service connection for a low back condition has been raised in the Veteran's Applications for Compensation and/or Pension submitted in January 2008 and January 2009.  However, the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  As such, this discrete issue is referred to the AOJ for appropriate action in accordance with the filing of claims and will not be addressed as a part of the current appeal.  38 C.F.R. §§ 3.150, 3.155, 19.9(b) (2017). 



FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, the evidence establishes that his right hip condition, as variously diagnosed to include avascular necrosis and residuals thereof, s etiologically related to his service, to include as secondary to his service-connected bilateral pes cavus. 


CONCLUSION OF LAW

The criteria for service connection for a right hip condition, as variously diagnosed to include avascular necrosis and residuals thereof, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  Given the favorable disposition herein with respect to the Veteran's claim of entitlement to service connection for a right hip condition, the Board need not assess VA's compliance with the VCAA with respect to these claims.  See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).


II.  Service Connection

Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  In addition, a disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury.  38 C.F.R. §  3.310; see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends service connection is warranted for a right hip condition.  For the reasons that follow, the Board concurs and finds that the criteria are met for entitlement to service connection for a right hip disability.

As an initial matter, the Board notes that the Veteran has been diagnosed with right side trochanteric bursitis (June 2005 private treatment records), right side sacroiliac joint hypermobility with sacral torsion (October 2005 private treatment records); torn right hip rotator cuff muscle (June 2006 Social Security Administration records), thoracic hypomobility anterior fial rotation sacroiliac join dyskinesia (September 2006 private treatment record) and osteoarthritis of the right hip (February 2008 private treatment record).  Upon VA examination in August 2012, the examiner failed to respond to the question as to whether the Veteran had ever been diagnosed with a hip condition.  However, a note in the examination report states that the examiner's review of the Veteran's medical records indicated hip replacements as a result of bilateral hip avascular necrosis.  Accordingly, the Board finds that the current diagnosis element has been fulfilled.

The Veteran contends that polio pre-existed service and the rigors of military service accelerated his post-polio syndrome, resulting in his current hip condition.  He alleges that the additional strain on his right leg (the non-polio leg) caused by military service culminated in the right hip condition.  Alternatively, the Veteran has put forth a theory of entitlement based upon aggravation of his hip condition by his service-connected bilateral pes cavus.

It is undisputed that the Veteran suffered from polio at a young age.  Service treatment records reflect a November 1965 letter from a physician diagnosing him with bilateral pes cavus with the suggestion that the Veteran be reviewed by an orthopedic surgeon to determine the appropriate type of military service, as prolonged walking and running would aggravate his condition.  A Report of Medical History dated May 1969 noted polio at age five.  The Veteran reported cramps in his legs, foot trouble, and paralysis.  An accompanying Report of Medical Examination found all systems to be normal, with the exception of his feet.  Upon medical examination prior to separation in February 1974, no abnormalities were noted.  

In a private opinion received in March 2017, a private care provider, Dr. P., provided multiple statements linking the Veteran's right hip condition to his service.  Firstly, Dr. P. opined that it is more likely than not that the Veteran's military assignment and the increased rigors of military service caused the right hip and sacroiliac joint pain.  Additionally, he stated that it is more likely than not that the right hip and sacroiliac joint pain is not solely due to the left lower extremity leg length discrepancy.  Instead, he opined that the right hip condition can in great extent be attributed to the Veteran's service-connected pes cavus foot deformity, which causes an altered, abnormal gait.  This compensatory gait results in accelerated overuse, and wear and tear on the right hip, sacroiliac joint and lower back.  Dr. P. opined that it is more likely than not that the compensation for the left lower extremity pathology caused unnecessary accelerated wear and tear of the right hip, sacroiliac joint, and lower back, resulting in debilitating, intractable pain.

The Board notes the opinion contained in the August 2012 VA examination report that the Veteran's right hip condition was not caused or aggravated by his bilateral pes cavus.  The VA examiner failed to provide a rationale for this opinion or an opinion as to direct service connection.  Therefore, in this case, the Board finds the March 2017 private examiner's opinion to be of more probative value, as it addressed multiple nexus theories and supported the opinion with a rationale.  

Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  Given the evidence of record in this case, the Board resolves doubt in the Veteran's favor and finds that the evidence supports a finding of service connection for a right hip condition.  The private examiner's opinion clearly relates the Veteran's current right hip condition to his service, including as secondary to his service-connected pes cavus.  Resolving reasonable doubt in the Veteran's favor, the claim of entitlement to service connection for a right hip condition variously diagnosed is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303(b), 3.310. 


ORDER

Entitlement to service connection for a right hip condition, as variously diagnosed to include avascular necrosis and residuals thereof, is granted.




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs