Citation Nr: 20008342 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 19-18 457 DATE: January 31, 2020 ORDER Service connection for right hip arthralgia and osteoarthritis (claimed a right upper thigh condition) is denied. FINDING OF FACT The Veteran’s right hip arthralgia and osteoarthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right hip arthralgia and osteoarthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, including arthritis, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant 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. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for right hip arthralgia and osteoarthritis (claimed a right upper thigh condition) The Veteran contends that his right hip arthralgia and osteoarthritis are due to an injury from service in 1966. Specifically, he cut his upper right thigh with a skill saw while cutting a piece of plywood. He was stitched and he asserts that he had right hip pain since that time. The Veteran has a current diagnosis of right hip arthralgia and osteoarthritis as evidenced by a March 2018 VA examination and an October 2018 x-ray. Arthritis is an enumerated chronic condition under 38 C.F.R. § 3.309(a). However, the Board finds that the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records show that the Veteran lacerated his right thigh with a power saw and the wound was sutured in November 1966. His March 1968 separation examination documented normal lower extremities and a scar on his upper right thigh. A medical treatment record from May 2014 notes that the Veteran had over 100 stiches in 1967 and that he also had right leg surgery in 1974. In August 2017, he indicated that he had constant pain in his right thigh since his injury in service. In July 2018, the Veteran complained of right knee pain that radiated to his hip that started six years. He was noted to have a limp. In October 2018, he was found to have advanced osteoarthritis and it was noted that he had previously had a repair of a right femur fracture. The Veteran was afforded a VA examination in March 2018. He was diagnosed with right hip arthralgia that the examiner indicated was likely associated with degeneration related to the aging process. It was noted that his November 1966 right thigh laceration healed over the following four weeks. He denied a history of failure to heal, hemorrhage, infection, or penetration into the bone. Service treatment records did not show any evidence of complications from his right thigh wound. The Veteran reported his right hip pain was provoked by walking and sleeping on it too much. The pain began about ten years ago and is intermittent. He was also involved in a motorcycle accident in about 1971 or 1972 and fracture his right femur. This was treated by open reduction internal fixation surgery. He denied any residuals, other than the ones mentioned. The examiner determined that it was less likely as not that the Veteran’s right hip arthralgia and osteoarthritis was incurred in service or caused by, or a result of, the thigh laceration in service. It was noted that the acute pain associated with the penetrating wound to the right thigh in service completely resolved within four weeks during 1966 and, based on review of the service treatment records, the wound healed and there were no complications. The examiner observed that he was involved in a serious motorcycle accident and fractured his right femur, which required open reduction and internal fixation. The Veteran’s acute pain in 1966 was localized to the soft tissue of the proximal anterolateral thigh and resolved. His current intermittent pain is localized to the right hip. There is insufficient evidence that the 1966 penetrating wound to the Veteran’s right thigh is a nexus to his likely degenerative condition of his right hip. Upon review of the foregoing evidence, the Board concludes that the evidence of record is against a finding that the Veteran’s currently diagnosed right hip arthralgia and osteoarthritis is related to his military service or is of service origin. The Board finds the VA opinion of record to be highly persuasive and worthy of weight regarding the issue of whether the Veteran’s current right hip arthralgia and osteoarthritis is related to service. The March 2018 VA examiner generally opined that the Veteran’s current right hip arthralgia and osteoarthritis was less likely as not due to the in-service right upper thigh injury and more likely due to other factors, such as aging. The Board places great probative weight on the VA opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture, to include consideration of relevant facts such as the details in the service treatment records regarding the accident, the separation examination report, and the post-service accident. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). There are no contrary medical opinions of record. The Board acknowledges the Veteran’s assertions that his current right hip arthralgia and osteoarthritis are related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of right hip osteoarthritis falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed right hip arthralgia and osteoarthritis is related to his military service requires medical expertise of the arthritic process that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran’s assertions that his current right hip arthralgia and osteoarthritis is related to his in-service right thigh injury as he is not competent to do so. The Board also acknowledges the Veteran’s assertions that he has suffered from right hip pain since service. The Veteran is certainly competent to report symptoms such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the issue is medically complex, as it requires knowledge of internal medical processes that extend beyond immediately observable cause-and-effect relationships that are of the type that the courts have found to be beyond the competence of lay witnesses. He is competent to report that he has symptoms of pain, however, arthritis is not a medical condition a lay person is competent to diagnose as specialized training, to likely include reading of diagnostic tests, is needed. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives no weight to the Veteran’s statements regarding a diagnosis or as to etiology as they are not competent. Thus, the lay statements as to a disability in this case cannot serve to enable an award of service connection here and are outweighed by the competent medical and other evidence of record. Additionally, in the present case, the Board finds that the Veteran’s statements regarding onset and continuity of his symptoms regarding his right hip, while competent, are not fully credible. In this regard, the Veteran has made inconsistent and contradictory statements regarding the onset of his current symptoms. Specifically, in statements during a 2018 medical appointment and the 2018 VA examination, the Veteran reported that his hip pain began about ten years ago. However, when the Veteran first filed his claim in 2017, a medical appointment in 2017, and a 2019 affidavit, he reported upper thigh/hip pain since service. As such, the Veteran’s contentions that he has suffered from continuous upper thigh/hip pain symptoms since service are inconsistent with other evidence of record. As detailed above, the first medical evidence of any right upper thigh/hip chronic symptoms after active service was in 2017, almost 50 years after the Veteran’s discharge. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous right upper thigh/hip symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). It is important to point out that the Board does not find that the Veteran’s lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Rather, the current lay statements are found to lack credibility because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran’s own statements, showing that the Veteran did not experience chronic right upper thigh/hip symptoms until many years after service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). With regard to presumptive service connection, there is no probative evidence of record that the Veteran’s right hip osteoarthritis manifested to a compensable degree within one year of the Veteran’s discharge from service in 1968. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until 2017, almost 50 years after service. Moreover, as noted above, the Board finds that the Veteran has not provided credible testimony that symptoms of arthritis have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.   Service connection for right hip osteoarthritis 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 right hip osteoarthritis 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. The March 2018 VA examiner opined that the Veteran’s right hip arthralgia and osteoarthritis is not at least as likely as not related to an in-service injury, event, or disease, including the laceration of his right thigh in 1966. As describe above, the rationale noted that the acute pain associated with the penetrating wound to the right thigh in service completely resolved within four weeks during 1966 and, based on review of the service treatment records, the wound healed and there were no complications. The examiner indicated his right hip disability was likely associated with degeneration related to the aging process. Based on this, the Board finds that the rationale is reasonably support and deserves weight. In sum, service connection for right hip arthralgia and osteoarthritis are not warranted on any basis. As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, Associate Counsel 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.