Citation Nr: 18100748 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-31 835A DATE: April 20, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER Entitlement to service connection for a left hip disability, to include as secondary to a service-connected right hip disability, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left hip disability due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to July 1991. The Veteran testified at a videoconference hearing before the undersigned Veteran’s Law Judge in December 2017. A transcript of the hearing was prepared and associated with the claims file. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. 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). Service Connection Entitlement to service connection for a left hip disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). In this case, the disorder at issue is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a Veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433–34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). The Veteran testified that he began experiencing pain in his groin in 1989 after he slipped and twisted his leg while in service. The Veteran testified that he continued to play soccer while in service and began to feel pain in both of his hips. The Veteran noted that he thought the pain in his hips was the same as the pain in his groin, and he described it as groin pain while he was in service. The Veteran further testified that he has pain in his left hip, and believes this pain is a continuation of his in-service injury. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has a left hip disability, diagnosed as osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Private treatment records indicate an MRI conducted in September 2005 showed mild degenerative changes in the Veteran’s left hip, approximately 14 years after his separation from service. While the Veteran is competent to report having experienced symptoms of a left hip and/or groin pain consistently since service he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative changes in the left hip. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n. 4 (Fed. Cir. 2007). The Board acknowledges the Veteran’s consistent complaints of groin pain since discharge from service. However, the Board gives more probative weight to competent medical evidence, which establishes that these symptoms were attributable to a soft tissue injury in service rather than the Veteran’s current osteoarthritis. The VA examiner, in August 2014 opined that the Veteran’s in-service soft-tissue injury, which was service-connected as a hernia, is not a likely cause of the Veteran’s current osteoarthritis of the left hip. The examiner cited medical evidence that does not support an association between soft tissue injuries—which are often the result of muscle strains or spasms associated with overuse, lifting heavy objects, and participation in sports or physically demanding activities—and skeletal structure disabilities—which contribute to the development of degenerative joint diseases such as osteoarthritis. The examiner further opined that as osteoarthritis occurs as a result of gradual wear and tear from daily use, and, as the Veteran’s service treatment records (STRs) did not indicate the Veteran had arthritis when he was discharged from service and he was not diagnosed with arthritis until many years after discharge from service, it is less likely than not that the Veteran’s current arthritis was present within the presumptive period. Service connection for osteoarthritis of the left hip may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s left hip disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As noted above, the Veteran contends that his current left hip disability is the result of in-service groin pain that occurred after slipping and falling as well as soccer injuries in service. The Veteran’s STRs do indicate recurrent groin pain beginning in 1989, and the Veteran has competently and credibly testified that he also had left groin pain at that time but the pain was not as intense as his right hip pain. However, as is also noted above, the August 2014 VA examiner competently opined that the Veteran’s current osteoarthritis of the left hip is not at least as likely as not related to an in-service injury, event, or disease as medical evidence does not support a soft tissue injury causing a skeletal disability such as osteoarthritis. Furthermore, at his discharge examination and report of medical history in April 1991, the Veteran did not report an ongoing issue with his hip or groin, and the clinical examination did not reveal any abnormalities to the Veteran’s left hip. The Board gives probative weight to the rationale provided by the August 2014 VA examiner, and as such, absent a nexus between the Veteran’s current disability and his active duty service, service connection for a left hip disability must be denied. The Veteran also contends that his left hip disability is caused or worsened by his right hip disability. The August 2014 VA examiner opined that it is less likely than not that the Veteran’s right hip disability caused or worsened his left hip disability as the clinical presentation does not support that the Veteran favoring his right hip would affect the opposite hip, nor would the Veteran’s right hip result in an anatomical shift of weight to the left hip to cause an extra weight burden. As the probative medical evidence does not support the Veteran’s contention that his left hip disability was caused or worsened by his service-connected right hip disability, service connection for the left hip on a secondary basis must also be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53–56 (1990). Thus, the claim must be denied. REMANDED ISSUE Entitlement to service connection for a right ankle disability is remanded for additional development The Veteran’s hearing testimony indicates that he believes that he first injured his ankle while playing soccer in service in 1989. The Veteran’s treatment records indicate he had reported soccer injuries to his ankle dating back to October 1993. The Veteran’s STRs indicate a right tabial taisal injury, suggesting an ankle injury in service, and treatment notes from November 2005 indicate that a January 2005 bone scan showed injuries that could have a post-traumatic etiology. Furthermore, at various points in the Veteran’s treatment records, he was diagnosed with various right ankle disabilities, including Paget’s disease. The Veteran was provided a VA examination in August 2014. However, the opinion provided did not address the Veteran’s lay statements or the medical treatment for his right ankle in 1993 or 2005. The opinion itself is inadequate as it only opines that the etiology of the Veteran’s diagnosed Paget’s disease is unknown and could be related to both genetic and environmental factors. The Board finds the August 2014 VA examination, as it relates to the Veteran’s right ankle, to be inadequate, and a new VA examination is necessary for a complete rationale as to the nature and etiology of the Veteran’s right ankle disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ankle disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran’s lay statements that he first began experiencing symptoms of an ankle disability after a series of soccer injuries, beginning in 1989. The examiner should also specifically consider the following evidence: (a.) Treatment notes form April 1991 that indicate the Veteran had “increased uptake . . . in the [right] tibio taisal point.” See Medical Treatment Record – Government Facility, received on August 23, 2013. (b.) January 2005 private treatment records indicating a bone scan of the Veteran’s right ankle, which noted a diagnosis of a fracture or tumor. See Medical Treatment Record – Non-Government Facility, received on May 20, 2013. (c.) November 2005 private treatment notes in which the treatment provider opined that the Veteran’s right ankle disability may have post-traumatic etiology. See Medical Treatment Record – Non-Government Facility, received on May 20, 2013. (d.) July 2013 private treatment records indicating an MRI of the Veteran’s right ankle showed mild degenerative changes and Paget’s disease. See Medical Treatment Record – Government Facility, received on August 23, 2013. (e.) September 2016 private treatment records indicating imaging consistent with Paget’s disease and mild osteoarthritis. See Medical Treatment Record – Non-Government Facility, received on December 19, 2017. (f.) July 2017 private treatment records indicating x-rays and an MRI showing a grossly abnormal talus consistent with Paget’s disease. See Medical Treatment Record – Non-Government Facility, received on December 19, 2017. (g.) September 2017 private treatment records noting that a right ankle CT showed deformity in the talus compatible with remote trauma. See Medical Treatment Record – Non-Government Facility, received on December 19, 2017. 2. Thereafter, the remanded claim should be readjudicated by the AOJ. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel