Citation Nr: 1815101 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 02-06 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2003, the Board remanded the claim to the RO for development of additional evidence. In a March 2007 decision, the Board denied the claim. The Veteran appealed the March 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2008, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) and remanded the claim back to the Board, which was granted by the Court. The parties noted that VA had not fulfilled its duty to assist. In November 2009 and February 2016, the Board remanded the claim for further development. In July 2016, the Board denied the claim. In March 2017, the parties filed a JMR and remanded the claim back to the Board, which was granted by the Court. The parties found that the Board erred by relying on the March 2016 VA examination, which addressed only whether the Veteran's left hip disorder was related to his service-connected left knee disability, and not did not address any relationship to his other service-connected disabilities. The parties agreed that a remand was warranted for the Board to obtain an opinion as to whether the Veteran's left hip disability is related to his other service-connected disabilities. In September 2017, the Board remanded this matter to obtain such opinions. FINDINGS OF FACT The Veteran's left hip disorder did not have its onset in service, did not manifest within one year of separation from service, and is not otherwise shown to be etiologically related to a disease, injury, or event in service or as secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left hip disorder, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. Throughout the pendency of the appeal, VA has notified the Veteran of the information needed to substantiate and complete his claim. The Veteran has had ample opportunity to respond and supplement the record, and, at this time, has not alleged that notice was less than adequate. Upon review of the record, the Veterans service treatment records and pertinent post-service medical records have been associated with the record. The Veteran was afforded several VA examinations to assess his hip disorder. The Board finds that these VA examination reports are adequate for service connection purposes. The VA examinations were thorough and contained the findings needed to address the issue on appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record is adequate to decide this matter, and that no further development of the evidentiary record is necessary. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities (to include arthritis) are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Alternatively, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b) (2017). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a veteran can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). The Veteran's service treatment records do not show that the Veteran had any complaints, treatment, or diagnosis relating to the left hip during service. In a February 2002 VA Primary Care Note the Veteran complained of hip pain. In October 2002 the VA obtained x-rays of the Veteran's hips, which revealed no significant abnormalities. June 2010 private treatment records from W.H.N.C. indicated that the Veteran had impaired left hip strength, but his range of motion was within normal limits. August 2010 to October 2010 private treatment records from C.R.S. indicated that the Veteran complained of left hip pain. A June 2011 VA Primary Care Note opined that the Veteran's altered gait was giving him hip pain. A February 2015 VA x-ray showed degenerative changes in both of the Veteran's hips. At a March 2016 VA examination for the Veteran's left hip, the Veteran stated that his service-connected left knee disability caused him to have left hip pain. The examiner ultimately opined that the Veteran's left hip condition was caused by normal physiologic aging, and not caused by or aggravated by his service-connected left knee disability or his time in-service. Opinions as to whether the Veteran's left hip condition was caused by or aggravated by his other service-connected disabilities were not provided. An October 2016 VA examination for the Veteran's right hip (in regards to another benefits claim) indicated that radiological imagining established that the Veteran had symmetrical mild arthritis in both hips, and thus the arthritis in the right hip was not more severe than the left hip. The examiner explained that the symmetry of the arthritis indicated that there were no greater biomechanical stressors on one hip versus the other. She also noted that the Veteran had a small leg length discrepancy, but this would not cause biomechanical stressors resulting in arthritis of the hip. She elaborated that a 3-6 cm leg length difference would be needed to cause such biomechanical stressors, and the Veteran had only a 1 cm difference between his legs. The examiner ultimately concluded that based on the symmetry of the arthritis, the Veteran's arthritis of the right hip was most consistent biologic aging and morbid obesity. Medical records furnished by the Social Security Administration (SSA) in April 2017 contained copies of private treatment records already discussed. The SSA records were silent as to any etiology of the Veteran's left hip disorder, despite noting complaints of hip pain. A September 2017 VA examination for the Veteran's left hip was conducted per the Board's September 2017 remand. The examiner opined that the left hip disorder was not caused by or aggravated by the Veteran's service-connected right shoulder impingement syndrome with glenohumeral and acromioclavicular joint osteoarthritis. The examiner reasoned that the right shoulder is a totally separate unit (both anatomically and physiologically) from the left hip joint and what occurs for one joint does not affect the other and vice versa. Therefore, the examiner found the left hip disorder was not caused by the right shoulder disability. The September 2017 examiner further opined that the left hip disorder was not caused by or aggravated by the Veteran's service-connected left knee arthroplasty. The examiner noted that the February 2015 x-rays revealed early osteoarthritis. The examiner opined that the left hip joint is an anatomical and physiological separate unit from the left knee and what occurs in one joint does not affect the other and vice versa. The examiner did note that a leg length discrepancy of 3-6 cm or more affecting gait would impact the hip; however, the examiner stated, that the Veteran's leg length difference was 1 cm, and thus was within normal variance and would not affect the left hip. He went on to state that repeat leg measurement from the last examination were still consistent with these current findings. Consequently, the examiner concluded that the Veteran's left hip disorder was caused by normal physiologic aging and not caused by or aggravated by his service-connected left knee disability. The September 2017 examiner opined that the left hip disorder was not caused by or aggravated by neither the Veteran's service-connected right knee arthroplasty, nor his service-connected degenerative arthritis of the right or left ankle for the same reasons that the left knee arthroplasty did not cause the left hip disorder, as summarized above. He reaffirmed his opinion that the Veteran's left hip disorder was caused by normal physiologic aging. The September 2017 examiner further opined that the left hip disorder was not caused by or aggravated by a combination of the Veteran's service-connected disabilities. He explained that all these disabilities are separate physiologic and anatomic units not only compared to the left hip joint, but also to each other and what occurs in one joint does not affect other joints and vice versa. The examiner also pointed out that the Veteran's service treatment records were silent for any evaluation, treatment, or diagnosis of a left hip condition; and that the Veteran's left hip disorder was not caused by or aggravated by his time in military service. The Veteran's left hip disorder did not occur in service, within one year following service, and there were no continuity of left hip symptoms following service. First, service treatment record were silent as to any left hip problems or injuries occurring in service, and the September 2017 VA examination opined that the Veteran's left hip disorder was not caused by or aggravated by his time in military service due to it etiologically being caused by aging. Second, complaints of left hip pain and the subsequent diagnosis of left hip osteoarthritis occurred several decades after the Veteran's discharge in August 1984. See 38 U.S.C. § 1110, 1112, 1137 (2012); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2017); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Accordingly, the Board finds that the evidence does not support entitlement to service connection on either a direct or presumptive basis, or by a continuity of symptomatology after service. The Veteran's left hip disorder was not caused by nor aggravated by the Veteran's other service-connected disabilities. The September 2017 examiner opined that the left hip disorder is etiologically due to physiologic aging. His medical conclusion is corroborated by the opinion of the October 2016 examiner, who examined the right hip and found symmetrical mild arthritis in both hips, which she also attributed to aging. Similarly, the October 2016 examiner, like the September 2017 examiner, discounted leg length discrepancy as a possible etiological caused for the Veteran's arthritis in his hips. The Board notes that the June 2011 VA Primary Care Note opined that Veteran's altered gait was giving him hip pain, but it did not actually state that his altered gait resulted in arthritis of the left hip. Moreover, while the February 2018 Informal Hearing Presentation contends that the Veteran's VA examination for his left hip disorder was inadequate, the Board disagrees. To the contrary, based on the Board's thorough review of the file, the Board finds that the September 2017 examiner has conducted a thorough examination, has reviewed the pertinent evidence of record and considered the Veteran's reported history and assertions, and has provided an adequate rationale for his opinions. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The September 2017 VA examination and accompanying report sufficiently cited the pertinent medical history and clinical findings; and produced a definitive opinion supported by an adequate rationale that sufficiently addressed the issues set forth in the March 2017 JMR, and resulting September 2017 Board remand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the Veteran nor his representative have presented or identified any contrary medical opinion that supports the claim for service connection for a left hip disorder. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). As to Veteran's lay opinion that his service-connected disabilities caused his left hip disorder, the Board finds that the probative value of the Veteran's lay assertions are outweighed by the medical evidence of record. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Moreover, the Veteran has not shown that he has the requisite expertise or training to proffer an expert opinion on the etiology of his left hip disorder. See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of service connection for a left hip disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the Veteran's claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected disability, is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs