Citation Nr: 19107343 Decision Date: 01/30/19 Archive Date: 01/30/19 DOCKET NO. 17-14 599 DATE: January 30, 2019 ORDER Entitlement to service connection for a left hip disability claimed as secondary to the right hip is denied. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. A left hip disability was not manifest in service, arthritis was not compensably disabling within a year of separation from active duty and it is not otherwise attributable to active service nor is it related to a service-connected disability. 2. A right hip disability was not manifest in service, arthritis was not compensably disabling within a year of separation from active duty and it is not otherwise attributable to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1966 to December 1968. As a procedural matter, the Board notes that the Veteran has reported that he was told that his service treatment records (STRs) were destroyed in a fire. A review of the record, however, discloses that STRs have been associated with the file. The record is also devoid of any formal findings of unavailable service treatment records. To the extent that there may be missing STRs, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are destroyed/lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As such, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran appeals the denial of service connection for a left and right hip disability. After review of the record, the Board finds against the claim. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as “a substitute way of showing in-service incurrence and medical nexus.”) The Board, having reviewed the record, finds by a preponderance of the evidence that the Veteran has not manifested chronic, persistent and/or a recurrent left and/or right hip disability which began during service. In this respect, STRs are negative for any complaints, diagnoses and/or treatment for the hips. The September 1968 separation examination disclosed normal findings for the lower extremities. The Veteran also denied a history of broken bones and bone or joint deformity at that time. The Board has reviewed the medical records of file. These records do not include any competent opinion linking the Veteran’s current disabilities to service or any incident therein. There is no competent evidence or opinion that the Veteran’s disabilities are related to his military service and neither the Veteran nor his representative has presented any such opinion. The record is significant for a December 1968 application for VA benefits wherein the Veteran described “[s]harp pains in left leg from knee joint down.” Notably, STRs do disclose an evaluation for left knee pain in service, which found a bony prominence of the left knee/tibial condyle which was deemed a normal variant. At a VA examination in February 1969, the Veteran described bilateral knee pain. There was no lay or medical reference pertaining to either hip. Although the Veteran has described a hip injury which began in service, his more recent statements are inconsistent with his specific denials during service. As noted, the Veteran denied a history of broken bones and bone or joint deformity at separation. In his November 2015 claim for compensation the Veteran submitted a claim for service connection for a right hip disability and a left hip disability secondary to the right hip. He also submitted a claim for a dental disability which he claimed was secondary to the “right hip falls.” In his August 2016 notice of disagreement, however, the Veteran stated that he had a hip injury during service and that his left hip showed a hairline crack. He noted that his injury was not reported to the infirmary. He claimed that a 1995 X ray showed that he had a left hip hairline crack from an old injury and that the hairline crack caused the hip to shatter during surgery. The Veteran reported in his March 2017 VA Form 9 that he had a broken rib while serving on active duty which caused his right middle lobe to deflate and that his right hip had a hairline crack in it for the same reason which caused the right hip to “destroy” during surgery. He claimed that he complained to the army doctors and they advised him not to worry. After a review of the entirety of the record, the Board finds the most credible recollection by the Veteran consists of his separation statements that he did not break any bones – either the left or right hip and a rib. In addition to STRs which do not disclose such claimed injuries, the Veteran specifically denied breaking any bones at service discharge. The Board places greater probative weight to the Veteran’s statements contemporaneous in time to service discharge as they bear the indicia of reliability as being made in the context of obtaining appropriate medical treatment and/or diagnosis. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). On the other hand, the Veteran’s current recollections are inconsistent as to whether he had fractured the right or left hip, and are inconsistent as to whether he actually sought treatment for the alleged injury during basic training. As demonstrated in his claim for compensation, notice of disagreement and VA Form 9, the Veteran has been inconsistent in his description of events. In some statements he claims to have sustained a right hip injury in service, however, in other statements he claims that he had a left hip injury during service. Furthermore, in August 2016 he reported that did not report the injury to the infirmary but then in March 2017 he appeared to state that he did report the injury but was advised not to worry about it. His inconsistent statements render him an unreliable historian. Additionally, after basic training, there is no reference in the STRs for the remaining service reflecting any impairment of ability to perform military duties due to an injured right or left hip. Additionally, an examination immediately after service involving both knees did not reference any complaint of hip pain. Overall, the current recollections are not consistent with a finding of chronic right or left hip disability since service. As such, the Board finds that the Veteran’s most credible recollection consists of his denial of symptoms at separation which is more consistent with the entire evidentiary record. Therefore, the Board finds that service connection for a chronic hip disorder is not warranted based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or as first being manifest to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a). For the reasons detailed above, the Board must find against the Veteran’s claim for service connection. In making this determination, the Board is mindful that the Veteran has not been afforded a VA examination in relation to his claim for service connection. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As noted, however, the most credible evidence shows that there have not been recurrent/persistent symptoms of disability since service. While the Veteran has reported an injury to his hip during service, his statements have been inconsistent and are not credible. As such, the Board finds that the low threshold for obtaining a medical examination and/or opinion has not been met for this claim. The more probative evidence does not indicate that the Veteran has a right and/or left hip disability that is related to service such as to require an examination, even under the low threshold of McLendon. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a conclusory generalized statement that a service illness caused his present medical problems was insufficient to trigger duty to provide medical examination as this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case). To the extent that the Veteran argues that his left hip disability is secondary to his right hip disability, the Board notes that service connection has been denied for a right hip disability. Accordingly, the claim of entitlement to service connection under this theory of entitlement is meritless and must also be denied. In sum, the most probative evidence of record preponderates against the Veteran’s claim for service connection for a right and left hip disability. The Board has considered the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. Therefore, the claim is denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie