Citation Nr: 1813167 Decision Date: 03/01/18 Archive Date: 03/13/18 DOCKET NO. 16-63 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded for further development in October 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's right hip disability initially manifested in service or is otherwise etiologically related to active military service; manifested to a compensable degree within one year after service; or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In a January 2018 informal hearing presentation, the Veteran's representative challenged the expertise of the VA medical providers that examined the Veteran throughout the appeal period, specifically the October 2015 VA examiner. The representative stated that the examiner is listed as a physician's assistant but has no license on file. Further, the representative also challenged the credentials of two other VA medical providers, but did not make clear how they were connected to the Veteran. Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Id. Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). In this case, the representative asserts that the VA examiner who conducted the October 2015 VA examination had no known license and no known VA clinical privileges. In support of the argument, the Veteran's representative included a copy of the October 2015 VA examiner's professional information from the National Provider Identifier (NPI) public search website provided by the U. S. Centers for Medicare and Medicaid Services. It is unclear why the Veteran's representative argued that this provider does not have a license or privileges to practice at VA. The information, identified as being from the NPI reflects that the provider is a licensed physician's assistant in active status. His primary practice address is a VA medical center (VAMC). As the evidence provided by the Veteran's representative appears to corroborate that the October 2015 VA provider is a licensed medical professional and does practice at a VAMC, there is no evidence of record to suggest otherwise. Thus, the Board has no reason to conclude that the October 2015 VA examiner is not competent to provide an adequate examination and opinion. With regard to the other medical professionals the Veteran's representative argued are not competent to provide examinations or opinions, the representative did not identify their connection to the Veteran. The Board observes that the other November 2017 VA examination and opinion relied upon by the Board in this decision was not conducted by either identified examiner. As such the Board will not address this argument further. The Veteran's representative also argued that the November 2017 VA examiner's opinion is inadequate because the examiner did not conduct a "gait analysis" and because the examiner did not explicitly address medical findings from a May 1991 VA examination for the Veteran's back disability. There is no requirement that a "gait analysis" must be conducted. Moreover, the examiner did address the Veteran's leg length discrepancy and how it affects the Veteran's claimed right hip disability. The examiner clearly explained the basis for his conclusion that the Veteran's leg length discrepancy was not causing or aggravating his right hip, as he specifically referenced an x-ray that objectively confirmed the difference in leg lengths and that it was "minimal." Therefore, the Board finds that a new examination is not warranted to conduct any additional testing. Further, although the examiner did not explicitly address the May 1991 medical opinion, the examiner indicated that she reviewed the Veteran's claims file which included the May 1991 medical opinion. There is no requirement that the VA examiner specifically list each piece of evidence in the file that was reviewed. Moreover, there is no indication that the examiner did not base her opinion on a thorough review of the relevant evidence of record. Thus, the Board finds the November 2017 VA examination adequate. The Board concludes that the October 2015 and November 2017 VA examinations, when considered together, are adequate upon which to base a determination as they are based on a review of the relevant evidence in the claims file and consider the Veteran's arguments. Accordingly, the Board may rely on these examinations and opinions. The Veteran and his representative have not raised any additional issues with the duty to notify or duty to assist with regard to the claim for entitlement to service connection for a right hip disability. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Entitlement to Service Connection Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered, or disease contracted, in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within a year after separation from active service. See 38 U.S.C. §§ 1101(3), 1112(a)(1), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (stating that when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition). Additionally, service connection may be established by the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469 (providing that "competency" is a "legal concept determining whether testimony may be heard and considered by the trier or fact" and that "credibility" is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Legal Analysis The Veteran essentially asserts that his service-connected disabilities, in particular his right tibia and fibula, right knee, and lumbar spine disabilities, have caused or aggravated his right hip disability. See May 2015 Fully Developed Claim; November 2015 Notice of Disagreement. The Veteran has a current diagnosis of degenerative arthritis in the right hip. See November 2017 VA Examination. While the Shedden element of a current disability has been met, when considering the pertinent evidence in light of the above-noted legal authority, the Board finds that service connection is not warranted for the Veteran's current right hip disability, as the weight of the evidence is against a finding that his disability was caused by, or is otherwise etiologically related to, his active military service, to include a service-connected disability. As an initial matter, the Board observes that degenerative hip arthritis was not manifested during service or has otherwise been shown to be directly etiologically related to the Veteran's service. There are no service treatment records documenting any hip-related issues, nor has the Veteran related any specific in-service hip-related injuries or symptoms during this period. As such, there is no evidence of record suggesting there might be a relationship between his current condition and his active duty service sufficient to establish service connection. See Shedden, 381 F.3d at 1167; McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006). As noted, the record does not reflect, and the Veteran does not assert, that his right hip condition had its onset in service. Rather, the Veteran maintains that his right hip condition is secondary to a service-connected disability. The Board notes that the Veteran does not report continuous right hip pain or a continuous right hip condition since service. The Veteran was first treated for hip pain in November 2010 and first diagnosed with arthritis in January 2017. See December 2010 Medical Treatment Record; January 2017 Medical Treatment Record. As such, the Veteran's arthritis has not been shown to have manifested to a degree of 10 percent or more within a year after separation from active service. Therefore, the only remaining question is whether there is a nexus between the service-connected right leg disability and a service-connected disability. The Veteran was afforded a VA examination in October 2015. The examiner noted that the Veteran had a right hip strain but opined that the Veteran did not have a current diagnosis associated with the claimed condition. The Veteran reported right hip pain that began two to three years earlier, with episodic severe pain every six weeks. The Veteran reported difficulty with prolonged sitting, standing, and walking. Upon examination, the examiner noted that the Veteran had a leg length discrepancy of 2cm (right leg 98 cm and left leg 100 cm), with the right leg being shorter than the left. The examiner opined that the Veteran's right hip disability was less likely than not incurred in or caused by the Veteran's service, to include his service-connected right leg disability. The examiner stated that the Veteran's right hip strain is not a disorder than can be caused by or related to a distal tibia fracture, despite the mild to moderate leg length discrepancy post fracture. The examiner indicated that the Veteran had an adequate shoe lift to reduce his limp and that there was no indication of any disorder other than a groin strain. The Board found the October 2015 VA examiner's opinion did not contain sufficient information to adjudicate the claim as the VA examiner did not address whether the right leg condition aggravated the Veteran's right hip condition beyond its natural progression. In a January 2017 private medical treatment record, it was noted that the Veteran showed arthritic changes in his right hip. The physician noted that the Veteran had limited motion of his right hip and a three inch leg length discrepancy on the right with a corrected build-up. The physician indicated that the nature of the Veteran's leg fracture 30 years earlier is probably contributing to some of the pain and discomfort in the Veteran's knee, lower extremity and hip. The examiner stated that he would be glad to opine on the effects of the Veteran's old leg fracture and the residuals affecting his right leg, hip, and spine, but no further explanation was provided. Pursuant to an October 2017 Board remand, the Veteran was afforded a VA examination in November 2017. The examiner was asked to consider the January 2017 private medical record, described above. The examiner noted that the Veteran was diagnosed with degenerative arthritis in the right hip from x-rays conducted in January 2017 and noted a diagnosis of a right hip strain from 2015. The examiner noted that the Veteran reported pain in the right hip/groin when he walks, that he had a right tibia/fibula fracture while in service, and that he reported that his right leg is shorter than the left leg. The Veteran did not report flare-ups or functional loss. Upon examination, the examiner noted that there was a 1.5 cm leg discrepancy with the right leg shorter than the left. Specifically, it was noted that, when measuring from the anterior superior iliac spine to the internal malleolus on the tibia, the right leg was 98 cm and the left leg was 99.5 cm. X-ray results reflected mild degenerative changes in the hip, slight dysplastic cortical prominence at the right lateral femoral head neck region possibly degenerative, and cam type femoral acetabular impingement should be excluded. It was also noted that via x-ray there was a slight leg length discrepancy(approximately 1.3 cm) with the left leg longer than the right. The examiner opined that the Veteran's right hip disability is less likely than not caused by the Veteran's service as medical records are negative for a right hip condition until 2010. The examiner also opined that the Veteran's right hip condition is less likely than not proximately due to or the result of the Veteran's service-connected right tibia and fibula, right knee, or lumbar spine disabilities. The examiner considered the January 2017 private medical opinion but stated that the physician indicated that the Veteran had a 3 inch leg discrepancy corrected with a shoe insert, whereas objective x-ray evidence shows a 1.3 cm difference, which is less than 1 inch. The examiner stated that because the leg discrepancy is minor it is less likely than not that the Veteran's right hip disability was due to or caused by the Veteran's right tibia and fibula, right knee, or lumbar spine disabilities. Further, the examiner concluded that it was less likely than not that a service-connected disability aggravated the right hip, because there is very little leg discrepancy. The Board finds the November 2017 VA examination report to be highly probative, as it was based on a thorough review of the Veteran's medical records, evaluation of the Veteran, and cites to relevant medical principles. Most importantly, the opinion is supported by objective medical testing, i.e. x-rays that document the difference in the Veteran's leg lengths. Despite observing the Veteran's complaints of right hip pain and minor leg discrepancy and considering the January 2017 private medical opinion, the examiner was unable to find an etiological link between the conditions. The Board has considered the January 2017 private medical opinion but affords it less weight of probative value, as it appears that the private physician based his opinion on an inaccurate factual premise. As reflected above, the objective evidence of record documents a 1.3 cm leg length discrepancy, while the private provider based his opinion on the conclusion that the Veteran's legs differed in length by 3 inches. As the physician did not provide support for arriving at the three inch leg length disparity, and there is objective evidence that it was actually 1.3 cm, the Board affords the January 2017 provider's opinion less probative value. The Board has also considered the lay statements of the Veteran asserting his service-connected disabilities caused his right hip condition. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a relationship between a service-connected disability and a right hip condition, is outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, there is no other competent evidence that the Veteran's right hip is caused or aggravated by any additional service-connected disability. In summary, the competent medical evidence of record weighs against a finding that a nexus exists between the Veteran's right hip disability and his active military service, to include his service-connected disabilities. Additionally, presumptive service connection for arthritis is not warranted, as there is no evidence of arthritis within one year of the Veteran's active service. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and the Veteran's claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the Veteran's right hip disability is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs