Citation Nr: 19186627 Decision Date: 11/19/19 Archive Date: 11/18/19 DOCKET NO. 16-24 082 DATE: November 19, 2019 ORDER Entitlement to service connection for left hip condition is granted. Entitlement to service connection for right hip condition is granted. Entitlement to service connection for right knee condition is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, his bilateral hip and right knee conditions are a result of his service-connected right foot condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip condition have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2018). 2. The criteria for service connection for a right hip condition have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2018). 3. The criteria for service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active duty from December 1979 to December 1982. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The law also provides a disability may be service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to Service Connection for Left and Right Hips The Veteran alleges that his left and right hip conditions are related to active service to include his service-connected right foot stress fracture. Specifically, the Veteran has asserted that during service he jumped 40 feet out of a helicopter into water and lost consciousness. When he came to, he experienced pain all over his body. He also maintains he went on 5 to 7 mile runs two to three times a week carrying a total of 70 pounds to include his rucksack and weapon. The Veteran also injured his right foot during service, for which he is currently service-connected, and he asserts his bilateral hip conditions are the result of this right condition. The Veteran’s hips were most recently examined by VA in March 2018 and the VA examiner diagnosed him with bilateral hip joint replacement, bilateral arthritis and bilateral inflammatory condition. The Board notes that the not all of the Veteran’s service treatment records (STRs) could be located. See August 5, 2013 Email Correspondence. When service records are missing through no fault of the claimant, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing her claim, and to explain its decision. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The available STRs of record are silent for any complaints of hip pain or injury. However, the Veteran testified before the undersigned in a July 2019 videoconference Board hearing that he experienced pain in his hips after a helicopter jump in service. See July 2019 Hearing Transcript at page 7. The Veteran also testified that he lost consciousness upon impact with the water during the helicopter jump and when he came to his fellow servicemen went to his aid. He stated they told him that he “skipped like a rock” across the water. Id. at 7. The Veteran confirmed that he did not complain to anyone about the pain he experienced after the jump in service because he did not want to appear inadequate, so he went forward with the exercise and continued through the pain. Id. at 9. He further testified to carrying 70 pounds of weight during runs two to three times a week, which included his rucksack and an M60 weapon. Id. at page 8. The Veteran’s DD214 confirms receipt of an expert badge in handling the M60 machine gun. The Veteran has met the first and second elements of service connection in that he has established a current disability, an event in service and he is currently service-connected for a right foot condition which he asserts is a cause for his current bilateral hip conditions. The question remaining is whether the Veteran’s active service, to include his service-connected right foot condition, is connected to his current bilateral hip conditions. The first medical notation for pain associated with the hips post separation is in December 2004 when the Veteran reported to a private treatment provider that he fell on his right side and was experiencing pain in his right hip. See December 27, 2004 Private Treatment Record. In October 2005, the Veteran complained to his private treatment provider that he was experiencing pain on his right side to include his hip. The private treatment provider noted the Veteran reported falling a couple of weeks earlier and had another injury in which he twisted to the side and is experiencing right side pain. See October 24, 2005 Private Treatment Record. In March 2011 the Veteran reported to his private examiner that he had sustained an injury to his right hip in 2007 while engaged in his duties as a firefighter. The examiner noted, “He has never had right hip issues or problems but subsequent to that injury in 2007 he had continuing pain and limitations.” See March 18, 2011 Private Treatment Record. The Veteran also reported being in a motorcycle accident in August of 2009 in which his hip issues were aggravated. Id. The private treatment examiner also noted the Veteran’s left hip pain was work related. In June 2011 a private treatment examiner noted the Veteran began experiencing pain in his left hip after a fall in 2010. See June 3, 2011 Private Treatment Record. In March 2018, the Veteran had a VA hip examination and the VA examiner provided several unfavorable opinions. The VA examiner opined the Veteran’s left and right hip issues were less likely than not related to active service. The examiner did not have the benefit of the Veteran’s July 2019 hearing testimony and reasoned that without in-service complaints of left and/or right hip pain or injury it would be difficult to link the Veteran’s bilateral hip conditions to service. Additionally, the examiner stated the Veteran’s left and/or right hip conditions are consistent with his history of work-related falls. As the March 2018 VA opinion as to direct service connection fails to consider the Veteran’s lay statements as to in-service events and injuries, the opinions are considered less probative. The March 2018 VA examiner also opined that the Veteran’s left and/or right hip conditions are less likely than not proximately due to or the result of his service-connected right foot condition. The Courts have observed that when VA is deciding such a case on the basis of “aggravation,” language “not due to,” “not caused by,” or “not related to” a service-connected disability is insufficient. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Instead, the opinion must be responsive to the question of whether or not a service-connected disorder worsened a disorder for which the Veteran is seeking service connection. Herein, the VA examiner reasoned that the Veteran’s left hip condition was first noted in 2010 after a fall relating to work and that his left hip condition is more consistent with a history of work injuries than it is the service-connected right foot condition. The rationale offered by the VA examiner is not responsive to the question as to whether the Veteran’s service-connected right foot disorder worsened the left hip condition, it is only responsive as to whether the Veteran’s left hip condition is related to his post service work as a firefighter. Similarly, the VA examiner’s rationale for the Veteran’s regarding the right hip did not address the question of aggravation or worsening. The VA examiner noted an inability to find any medical provider who noted the Veteran’s service-connected right foot as the etiology of the Veteran’s right hip condition. As the March 2018 opinions for secondary service connection failed to consider the issue of worsening or aggravation, the Board finds the opinions less probative. In July 2019, the Veteran submitted a nexus letter from his private examiner Dr. J.J.T. The private examiner noted the Veteran was under his care for treatment of his bilateral hips. The examiner opined that the Veteran fractured his right foot in service “which resulted in a significant gait abnormality that eventually led to him having right knee degeneration with meniscal tear and bilateral hip degeneration with labral tears and low back pain.” See July 11, 2019 Nexus Letter from Dr. J.J.T. The examiner further noted, “I can say with a high degree of medical certainty that his injuries and current need for treatment are approximately [50 to 75 percent] causally related to his service in the military.” Id. In a September 2019 nexus letter from the same private treatment provider, the private physician addressed the intervening work-related accidents with respect to the Veteran’s bilateral hip conditions being secondary to his service-connected right foot. “Walking with an antalgic gate for a lengthy period of time contributed to the early degeneration of his knee, hips and lower back. After being discharged from the military [the Veteran] became a [firefighter] where he sustained many bumps, bruises and injuries which contributed to and exacerbated his pre-existing degenerative issues.” See September 5, 2019 Nexus Letter from Dr. J.J.T. The Board finds the July and September 2019 opinions from the Veteran’s private orthopedic specialist quite probative. Dr. J.J.T. is a specialist and has been treating the Veteran for several years. Dr. J.J.T. has considered the Veteran’s medical history and lay statements regarding his time in service and his rationale was very responsive to the worsening of the Veteran’s bilateral hip conditions. As the July 2019 and September 2019 private nexus opinions are the only adequate medical opinions of record, the totality of the probative evidence of record therefore shows the Veteran’s left and right hip conditions secondary to his service-connected right foot condition and must be granted. 2. Entitlement to Service Connection for Right Knee Condition. The Veteran alleges that his right knee condition is related to active service to include his service-connected right foot stress fracture. As recently as March 2018, the Veteran was diagnosed with a right knee meniscal tear and right knee osteoarthritis. See March 2018 VA Knee Examination. As noted above, the Veteran is service-connected for a right foot condition, the question remaining is whether the Veteran’s right knee condition is the result of or caused by active service, to include his service-connected right foot stress fracture. The Veteran first reported right knee pain in December 2004 when he complained to his private treatment provider that he fell on his right side and was experiencing pain in his right knee. See December 27, 2004 Private Treatment Record. In January 2005 the Veteran complained again of right knee pain after having fallen down some stairs working as a firefighter. A meniscal tear was noted in the knee in February 2005. See February 7, 2005 Private Treatment Record. In October 2005, the Veteran complained to his private treatment provider that he was experiencing pain on his right side to include his knee. The private treatment provider noted the Veteran reported falling a couple of weeks earlier and had another injury in which he twisted to the side and experienced right-side pain. See October 24, 2005 Private Treatment Record. In March 2011 the Veteran reported to his private examiner that he had sustained an injury to his right knee in 2007 while engaged in his duties as a firefighter. The examiner noted, “He also had continuing issues with his right knee, which had been an issue and problem prior to that.” See March 18, 2011 Private Treatment Record. The Veteran also reported being in a motorcycle accident in August of 2009 in which his right knee issues were aggravated. Id. The Veteran’s private orthopedic specialist examined his knees in September 2015 and noted in the examination that the cause of the Veteran’s right knee problems due to an abnormal gait caused by his right foot fracture, which lead to the meniscal tear and arthritis in his right knee. See September 2015 Private Knee DBQ. The Veteran’s right knee was also examined by VA in March 2018 and the VA examiner opined the Veteran’s right knee conditions were less likely than not incurred in service as well as less likely than not proximately due to or caused by his service-connected right foot condition. The examiner reasoned that STRs were silent for in-service right knee complaints or injuries and right knee pain was not noted until after separation. The VA examiner also noted the Veteran had several work-related injuries and a motorcycle accident occurring post service. The examiner stated that the Veteran’s right knee condition was more consistent with history of work-related falls and not his service-connected right condition or jumping from a helicopter. The VA examiner failed to reason as to whether the Veteran’s right foot worsened his right knee condition, therefore the opinion is found to be less probative. In July 2019, the Veteran submitted a nexus letter from his private examiner Dr. J.J.T. The private examiner noted the Veteran was under his care for treatment of his right knee conditions. The examiner opined that the Veteran fractured his right foot in service “which resulted in a significant gait abnormality that eventually led to him having right knee degeneration with meniscal tear and bilateral hip degeneration with labral tears and low back pain.” See July 11, 2019 Nexus Letter from Dr. J.J.T. The examiner further noted, “I can say with a high degree of medical certainty that his injuries and current need for treatment are approximately [50 to 75 percent] causally related to his service in the military.” Id. In a September 2019 nexus letter from the same private treatment provider, the private physician addressed the intervening work-related accidents with respect to the Veteran’s bilateral hip conditions being secondary to his service-connected right foot. “Walking with an antalgic gate for a lengthy period of time contributed to the early degeneration of his knee, hips and lower back. After being discharged from the military [the Veteran] became a [firefighter] where he sustained many bumps, bruises and injuries which contributed to and exacerbated his pre-existing degenerative issues.” See September 5, 2019 Nexus Letter from Dr. J.J.T. The Board finds the July and September 2019 opinions from the Veteran’s private orthopedic specialist quite probative. Dr. J.J.T. is a specialist and has been treating the Veteran for several years. Dr. J.J.T. has conducted a physical examination of the Veteran’s right knee, as well as considered the Veteran’s medical history and lay statements regarding his time in service. The examiner’s rationale was very responsive to the worsening of the Veteran’s right knee conditions.   As the July 2019 and September 2019 private nexus opinions are the only adequate medical opinions of record, the totality of the probative evidence of record therefore shows the Veteran’s left and right hip conditions secondary to his service-connected right foot condition and must be granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.