Citation Nr: 1817196 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 08-32 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right hip disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty in the Oklahoma National Guard from November 1980 to November 1981. He had subsequent periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with various Army Reserve and National Guard units. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision, of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) in November 2010. A transcript of that proceeding has been associated with the claims file. The Board notes January 2018 correspondence to the Veteran incorrectly indicated that the AVLJ who presided over his November 2010 hearing was no longer employed by the Board. However, such correspondence was sent in error, as the AVLJ who presided over the Veteran's hearing is the undersigned. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDING OF FACT Right hip degenerative joint disease did not manifest in service, or within one year after service, and is not shown to be attributable to a period of ACDUTRA or INACDUTRA service. CONCLUSION OF LAW Right hip degenerative joint disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1117, 1131, 1137, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). During the hearing, the AVLJ clarified the issues, determined that there were potential outstanding records, and explained a service connection claim. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103. The Board notes that neither the Veteran nor his representative identified any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Compliance with Prior Remands Most recently the case was before the Board in April 2017. Previously the claim was remanded in September 2015, September 2014 and March 2011. In April 2017, the claim was remanded for additional development. Records from the Kansas National Guard were requested in April 2017 and a May 2017 response provided all available records. See May 10, 2017 Kansas National Guard Correspondence. A subsequent VA request for information in July 2017, and response noted that all available service, personnel and treatment records had previously been uploaded to VBMS. A Defense Finance and Accounting Service (DFAS) records request for the Veteran's leave and earning statements (LES) after 1992 was made in April 2017 and subsequent records from DFAS have been associated with the claims file. An October 2017 VA memorandum indicated that, based on the completed development, no additional periods of ACDUTRA or INACDUTRA service could be verified. The Veteran was not afforded an additional VA examination, as no additional periods of service, or new personnel or treatment records warranting a supplemental examination were associated with the claims file. A supplemental statement of the case (SSOC) was issued in December 2017. As such the Board finds there has been substantial compliance with the prior remand. III. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regarding National Guard service, service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA). With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated. 38 U.S.C. §§ 101(24), 106, 1110 (West 2012). To establish an aggravation claimed based on ACDUTRA and INACDUTRA, there must be evidence of both a worsening of the disability during the period of service and that the worsening was caused by the period of service. 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. Here, with respect to the current appeal, that list includes arthritis. 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 CFR 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. The Board notes that the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (b) (West 2012) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis The Veteran contends that he is entitled to service connection for right hip degenerative joint disease (DJD) as a result of his service. The Veteran reports experiencing ongoing hip pain and discomfort as a result of his Reserves service. The Veteran has reported that while serving as part of the heavy mortar platoon with the Oklahoma National Guard, he regularly maneuvered cannons weighing 675 pounds and the heavy ammunition for these weapons weighing over 30 pounds. Additionally, the Veteran has reported undergoing a hernia repair in February 1993 which resulted in his right hip disability. The Veteran has a diagnosis of right hip DJD. See December 2014 VA examination. The Veteran's service treatment records (STRs) have been associated with the claims file. On the report of medical examination at separation from active duty a clinical evaluation of the lower extremities and musculoskeletal system was normal. See October 15, 1981 report of medical examination. On the report of medical history in October 1981 at separation from active duty the Veteran denied arthritis, bone, joint or other deformities. See October 15, 1981 report of medical history. A June 1999 report of medical history indicates the Veteran's denial of arthritis, and the associated examination noted no abnormalities of the right hip. See June 11, 1999 report of medical history. A May 2001 Physical Profile noted the Veteran reported increased pain when running, walking and doing sit-ups. See May 5, 2001 STR. Examination indicated right hip arthritis. A June 2002 Military Physician's Statement of Soldiers Incapacitation/Fitness for Duty noted that the Veteran had right hip pain, was on a permanent profile for no running, and needed to follow-up with an orthopedist. See June 18, 2002 STR. The Veteran reported that his hip pain started in 1999, and the examiner noted that the injury was not incurred in the line of duty. Examination of the right hip noted no swelling or deformity with flexion to 60 degrees, extension to 60 degrees and abduction to 45 degrees, and pain with flexion, extension and abduction. Examination noted the Veteran most likely had DJD. Heat, ice, pain relievers and following-up with orthopedics was recommended. A March 2004 physical examination noted marked reduction of movement of the right hip, and August 2000 imaging noted bone on bone of the right hip, Follow-up was recommended with consideration for a hip replacement. In a March 2004 the Veteran noted that he was unable to kneel, walk long distances and lift greater than 35 pounds due to arthritis of his right hip. A March 2004 report of medical examination noted abnormal lower extremities with limited range of motion in the right hip and severe osteoarthritis. See March 8, 2004 report of medical examination. A September 2004 treatment note reported that right hip flexion was limited to 30 to 45 degrees and that the Veteran had full extension. Imaging noted moderately severe right hip DJD, and enlarged osteophyte formation along left femoral head and the femur and right hip. See September 20, 2004 STR. The Board notes the Veteran's statements regarding ongoing hip pain, and that his right hip pain began after a hernia injury and subsequent repair in 1993, due to his in-service duties overseeing heavy artillery and associated ammunition. However, there is no corroborating medical evidence that the onset of his right hip disability is a result of an injury during a period of ACDUTRA or INACDUTRA service. The Veteran was afforded a VA examination in January 2006. The examiner noted osteoarthritis in the Veteran's hip, which had existed for 10 years. See January 2006 VA examination. The examiner noted that the Veteran reported that his hip disability had gradually occurred over time, and that he had constant pain which awakened him from sleep. The Veteran endorsed difficulty standing and sitting for long periods, and instability when ambulating. He reported taking pain relievers regularly. Examination of the hip revealed range of motion testing with flexion to 30 degrees and extension to 10 degrees, with pain. The Veteran's right hip was additionally limited following repetitive use with pain, fatigue, weakness and lack of endurance. Imaging noted right hip DJD. The impression was right hip osteoarthritis with ongoing hip pain and limited range of motion. Then, the Veteran was afforded a VA examination in December 2014. The examiner noted the Veteran has a diagnosis of right hip DJD. See December 2014 VA examination. The examiner noted that the Veteran had a right hip bone spur in 2001, and was medically discharged from the National Guard in March 2005. Right hip range of motion testing noted flexion to 90 degrees, with painful motion and extension to greater than 5 degrees, with no objective evidence of painful motion. However, the examiner noted that the Veteran's range of motion testing was inconsistent, when supine the Veteran resisted hip flexion greater than 20 degrees, but when sitting on the exam table his hips were at 90 degrees, and as a result testing was not reliable. The Veteran was able to perform repetitive use testing, without additional loss of range of motion. Functional loss including less movement than normal and pain on movement was noted, with pain and tenderness on palpation. Muscle strength testing was 5/5, and no ankylosis of the hip joint was noted. Imaging documented arthritis. The examiner noted the Veteran's hip disability impacts his ability to work, in that he can only perform sedentary work. The examiner concluded that it was less likely than not that the Veteran's right hip disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran's reported events in-service and found that the Veteran's right hip disability was due to age and events not in service. The examiner noted that there was no objective medical data to show a direct cause or aggravation from an event in National Guard service. A supplemental opinion was obtained in September 2016. The examiner noted that the Veteran's claims file and the prior examinations and opinions were reviewed, and found that the Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. See September 2016 VA opinion. The examiner attributed the Veteran's right hip disability to age and events not in service, noting no that there was objective medical evidence to show a direct cause or permanent aggravation from events in National Guard service. The Board finds the December 2014 VA examination and September 2016 VA opinion are entitled to significant probative weight, as the examiner's examination and opinions were based on a thorough examination and review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA, DoD and private treatment records have been associated with the claims file. An April 2002 treatment record noted ongoing right hip pain, and a history of osteoarthritis. Examination of the Veteran's right hip noted no gross abnormalities, no crepitus, and imaging noted moderate DJD in the right hip with a bone spur inferiorly. See April 30, 2002 treatment record. April 2003 VA treatment records note a long history of hip pain, since his 1993 hernia surgery. Examination noted right hip flexion to be to 45 degrees and external rotation to 45 degrees, imaging noted severe degenerative joint disease of the right hip. See April 3, 2003 VA treatment record. VA treatment records in December 2004 note follow-up for osteoarthritis of the hip. The Veteran reported nightly pain, difficulty sleeping, limited motion and use of a cane and anti-inflammatories without any relief. See December 16, 2004 VA treatment record. After consideration of all the evidence of record, the Board concludes that the preponderance of the evidence is against finding that entitlement to service connection for a right hip disability is warranted. The Veteran has reported that his right hip injury is a result of his inguinal hernia and his ongoing National Guard service working with heavy artillery. The Board notes the Veteran is competent to report his observations and symptoms and that his statements in this regard are entitled to some probative weight. However, the Veteran's statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's statements as to whether his right hip disability is related to a period of ACDUTRA or INACDUTRA service are outweighed by the other evidence of record. The Board finds that the medical evidence is more probative and more credible than the lay statements of record. Specifically the Board finds the December 2014 VA examination and September 2016 VA opinions to be more probative and more credible than the lay statements of record. The December 2014 VA examiner found that it was less likely than not that the Veteran's right hip disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran's reported events in-service and found that the Veteran's right hip disability is due to age and events not in service. The examiner noted that there was no objective medical data to show a direct cause or aggravation from an event in-service. Additionally, the September 2016 VA supplemental opinion found that the Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. See September 2016 VA opinion. The examiner attributed the Veteran's right hip disability to age and events not in service, noting no objective medical evidence to show a direct cause or permanent aggravation from and in-service event. Further, the Board notes at various times during the Veteran's National Guard and Reserves service the Veteran reported experiencing ongoing right hip pain. However, there is no indication that this ongoing right hip pain is related to service or an injury, event or illness in-service or such was aggravated during a period of ACDUTRA or INACDUTRA. As such, the Board finds the December 2014 and the September 2016 VA examination and opinions are of high probative value as to direct service connection and the Veteran's statements are outweighed, as these credible probative opinions are entitled to significant weight and weighs against the claim. As such direct service connection is not warranted. VA, DoD and private treatment records associated with the claims file do not contradict the VA examination and opinions and are absent indications of a relationship between the Veteran's reported symptoms and periods of service including ACDUTRA and INACDUTRA. As such service connection is not warranted. In addition, DJD of the right hip was not "noted" during service or within one year of separation of active service. See Walker, 708 F.3d 1331. The Veteran's service treatment records reflect no finding, or diagnosis with arthritis at separation from active duty. The report of medical examination in October 1981 noted a normal clinical evaluation of the lower extremities and musculoskeletal system. See October 15, 1981 report of medical examination. On the report of medical history in October 1981 the Veteran denied arthritis, bone, joint or other deformities. See October 15, 1981report of medical history. The VA examiners in December 2014 and September 2016 found that the Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner attributed the Veteran's right hip disability to age and events not in service, noting no objective medical evidence to show a direct cause or permanent aggravation from an in-service event. Based on the most probative evidence of record, the Board finds that the Veteran's right hip DJD did not manifest within the one year period after active service, and that service connection is not warranted on a presumptive basis. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. Further, the Board notes that the Veteran has consistently reported that his right hip disability is a result of an injury during National Guard service and development of a hernia and subsequent hernia repair in 1993. Previously a claim for entitlement to service connection for residuals of an inguinal hernia was denied in a September 2015 Board decision. As the Veteran is not currently service connected for residuals of a hernia repair, consideration of secondary service connection is not warranted. Although the Veteran has established a current disability the preponderance of the evidence weights against finding that the Veteran's current disability is related to his service including ACDUTRA and INACDUTRA service and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. CONTINUED ON NEXT PAGE ORDER Entitlement to service connection for a right hip disability is denied ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs