Citation Nr: 20077565 Decision Date: 12/08/20 Archive Date: 12/08/20 DOCKET NO. 14-25 075 DATE: December 8, 2020 ORDER Service connection for a right hip disability, to include secondary to the service-connected bilateral knee disability, is denied. Service connection for a left hip disability, to include secondary to the service-connected bilateral knee disability, is denied. FINDINGS OF FACT 1. The Veteran’s right hip disability did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to the Veteran’s service, to include secondary to his service-connected bilateral knee disability. 2. The Veteran’s left hip disability did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to the Veteran’s service, to include secondary to his service-connected bilateral knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for left hip disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1987 to May 1988. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the March 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for the right and left hip conditions. The Veteran’s Notice of Disagreement (NOD) was received in May 2014. The Statement of the Case was issued in June 2014, and the Veteran’s VA Form 9, substantive appeal to the Board was received in July 2014. In April 2018, the Board remanded the claims for further development and adjudication. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease was manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or, if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Entitlement to service connection for the right hip disability, to include secondary to the service-connected bilateral knee disability. 2. Entitlement to service connection for the left hip disability, to include secondary to the service-connected bilateral hip disability. The Veteran seeks service connection for the right and left hip disabilities and contends that they are secondary to his service-connected bilateral knee disability. The Veteran is service connected for patellofemoral arthralgia and limitation of flexion, for both the right and the left knee. The Veteran’s service treatment records (STRs) do not contain complaints, treatments, or diagnosis for a hip disability. In October 2013, the Veteran underwent a VA examination for his claim. The Veteran reported pain in both hips which started approximately 1 year ago and indicated that he was seen by his private care provider and prescribed medication for it. The Veteran also reported not undergoing any treatment for his hip pain and denied a history of trauma. The Veteran reported his knee pain affected the way that he walks. He also reported experiencing pain in his hips weekly with a duration of a few days. Imaging studies of the hips were performed, and there was no evidence of degenerative or traumatic arthritis and no other significant diagnostic test findings. The VA examiner concluded that the Veteran’s right and left hip disabilities are less likely than not related to his service, to include his service-connected bilateral knee disability. The VA examiner concluded that there is insufficient clinical evidence to warrant a diagnosis of an acute or chronic left or right hip disorder. Pursuant to the April 2018 Board remand, the October 2013 VA examination was not adequate as the private treatment records referenced by the Veteran were not available for review when the VA examiner was formulating their conclusions. A January 2015 VA treatment note indicates that the Veteran has chronic pain in knee, hips, and back, with a diagnosis of DJD of the hips and knees, and also references the Veteran’s October 2013 hip x-rays which were negative. A May 2018 VA treatment note indicates that upon examination, the Veteran’s station and gait are normal, and there are no joint deformities. He was noted to have DJD of hips and knees and declined physical therapy. It was noted that he continued to take methocarbamol and monic. In a November 2018 RO correspondence, the Veteran was provided with the VA Form 21-4138, Statement in Support of the Claim, and the VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs. The same correspondence states that the RO needs additional evidence from the Veteran and requests that he complete and return the VA Form 21-4142 so that the RO can obtain the authorization to request treatment records from the Veteran’s private medical sources. The November 2018 correspondence also indicates that the RO is seeking to obtain all outstanding private and VA treatment records for the Veteran’s hip disabilities, to include those reference in the October 2013 VA examination. Finally, the November 2018 correspondence states that it is ultimately the Veteran’s responsibility to submit relevant evidence for consideration in support of his claim, and that the VA has a duty to make reasonable efforts to assist the Veteran in obtaining this evidence. To date, the Veteran has not responded to the November 2018 correspondence from the RO and has not provided the necessary authorization to obtain the private treatment records referenced in the October 2013 VA examination report. Of note, in November 2019, the Veteran submitted a VA Form 21-4138 along with an October 2019 right knee MRI, indicating that he wished to submit the record in support of his right knee claim. Indeed, the Veteran has not submitted any private treatment records pertaining to his bilateral hip disabilities and has not provided the necessary authorization to the RO to obtain those records. In July 2019, the Veteran underwent another VA examination for his claim. He was diagnosed with bilateral osteoarthritis of the hips. The Veteran reported his hips bothering him more steadily over the years. He also reported that his hips hurt when his knees hurt and that it feels like the pain is in the socket, with one bone rubbing another. The Veteran indicated that his neither his private care provider nor his VA doctor are treating him for his pain. The Veteran also indicated that he takes over the counter Tylenol and Ibuprofen for the pain and sleeps on a heated bed. The Veteran reported weekly flare ups when his knees start hurting and pop. Imaging studies were performed. For the right hip, there was evidence of arthritis, with minimal osteophytic changes along the lateral margin of the femoral head (noted to be common for the Veteran’s age group) and no other acute findings. For the left hip, there were no definite acute findings, with a minimal bony irregularity, which was noted to be probable hamstring enthesopathy. The VA examiner concluded that the Veteran’s right and left hip disabilities are not proximately due to or the result of his service-connected disability. The VA examiner indicated that the available records do not show a diagnosed bilateral hip disability that his currently being treated. X-rays that were conducted illustrated right hip osteoarthritis and bone spurs seen with aging. The VA examiner also referred to the x-ray report stating that the bone spurs are seen along the lateral border of the right femoral head and are common in the Veteran’s age group. For the Veteran’s left hip, the VA examiner stated that he has enthesopathy of the left hip deep in the buttock. Left hip x-rays showed irregularity along the ischial tuberosity (bones in the buttocks that involve sitting), and the report stated that this is probably hamstrings enthesopathy. The VA examiner indicated that enthesopathy is a condition where there is an insertion of ligaments or tendons or fascia to the bone, and in this case where the hamstring tendons insert into the ischial tuberosity. The VA examiner went to state that this can become inflamed and cause pain with movement. Finally, the VA examiner indicated that search of reputable medical literature shows no evidence to support the theory that patellofemoral arthralgia causes ipsilateral or contralateral arthritis, or leads to enthesopathy of the same or opposite side hip, nor is there evidence that his patellofemoral arthralgias aggravate his hip conditions. An October 2020 informal hearing presentation (IHP) from the Veteran’s representative indicates that the remand order has been followed in this case. At the outset, the record shows that the RO satisfied its duty to assist the Veteran in obtaining his private treatment records when the November 2018 correspondence with necessary forms was sent to the Veteran. While the VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on a review of the entire record, the preponderance of the evidence supports the finding that the Veteran’s right and left hip disabilities did not have their onset in service, did not manifest as arthritis to a compensable degree within one year of discharge, and are not otherwise causally related to the Veteran’s service, to include his service-connected bilateral knee disability. The Veteran’s STRs, his VA treatment records, and the July 2019 VA examination report all indicate that the Veteran’s right and left hip disabilities did not have their onset in service and did not manifest to a compensable degree within one year of service. Indeed, the Veteran has not contended otherwise. With respect to nexus, in this case the Veteran has alleged that his right and left hip disabilities are caused or related to his service-connected bilateral knee disabilities. However, the July 2019 VA examination report and medical opinion indicate that that the Veteran has DJD of the right hip and probable left hip enthesopathy and those disabilities are likely related to his age. The July 2019 VA examination report also indicates that medical literature does not support a finding that these disabilities are etiologically related to the Veteran’s bilateral knee disability. Because the July 2019 VA examiner provided a sound rationale for the conclusions reached, the opinion is assigned probative value. Accordingly, the weight of the most probative medical evidence is against the finding that Veteran’s right and left hip disabilities are related to service, including his service-connected knee disabilities. Lay persons are competent to provide opinions on some medical issues, and there is no reason to doubt the Veteran’s reports of hip pain. However, with respect diagnosis and nexus, the Veteran is not competent to provide a medical nexus opinion as to any relationship between his current hip disabilities and his bilateral knee disability; or, any other disease or injury in service. This requires medical knowledge and falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In this regard, any actual diagnosis of a hip disability, and causation between knee disabilities and hip disabilities, require objective testing and medical expertise to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran believes that his hip disabilities were caused by service and his service-connected knee disabilities, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran is not deemed competent to know the cause of his hip pain, as this is an internal physiological process that requires medical expertise. Accordingly, the Veteran’s opinion as to the nexus in this case is not competent evidence. Id. (Continued on the next page)   In sum, the preponderance of the medical evidence is against a finding that the Veteran’s right and left hip disabilities had their onset in service, manifested to a compensable degree within one year of discharge, or were otherwise causally related to service, to include service-connected bilateral knee disability. Accordingly, the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application, and service connection is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.