Citation Nr: 20022443 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 09-09 591 DATE: March 31, 2020 ORDER Service connection for a left hip disability is denied. Service connection for a right hip disability, claimed as secondary to a left hip disability is denied. Service connection for pelvic girdle muscle weakness, claimed as secondary to a left hip disability is denied. Service connection for a low back disability, claimed as secondary to a left hip disability is denied. Service connection for a left knee disability, claimed as secondary to a left hip disability is denied. Service connection for an acquired psychiatric disorder, claimed as secondary to a left hip disability is denied. FINDINGS OF FACT 1. The Veteran’s preexisting left hip disability is not shown to have undergone an increase in severity beyond natural progression by an injury sustained during a period of active service. 2. The Veteran’s right hip disability was not caused by or permanently made worse by a service-connected disability. 3. The Veteran’s pelvic girdle muscle weakness was not caused by or permanently made worse by a service-connected disability. 4. The Veteran’s low back disability was not caused by or permanently made worse by a service-connected disability. 5. The Veteran’s left knee disability was not caused by or permanently made worse by a service-connected disability. 6. The Veteran’s acquired psychiatric disorder was not caused by or permanently made worse by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria to establish service connection for a right hip disability have not been met. 38 C.F.R. § 3.310. 3. The criteria to establish service connection for pelvic girdle muscle weakness have not been met. 38 C.F.R. § 3.310. 4. The criteria to establish service connection for a low back disability have not been met. 38 C.F.R. § 3.310. 5. The criteria to establish service connection for a left knee disability have not been met. 38 C.F.R. § 3.310. 6. The criteria to establish service connection for an acquired psychiatric disorder have not been met. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to March 1968. These matters were before the Board of Veterans’ Appeals (Board) on appeal from October 1974 and July 2008 rating decisions issued by the RO. The Board remanded these claims on appeal in July 2010, February 2016 and April 2017 for further development of the record. In April 2017, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain translations of treatment records that were recorded in Spanish; obtain outstanding records of treatment; attempt to obtain records considered in awarding the Veteran Social Security Administration (SSA) benefits; and, obtain an addendum opinion regarding the etiology of the claimed left hip disability. The requested development has been completed and the case has been returned to the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 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). 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 also 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); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a left hip disability Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C. § 1111. The term “noted” denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all the other evidence in question as to the commencement of the disease or disability. Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The October 1965 pre-induction report of medical history reflects the Veteran’s report that he fractured his left leg before service. The October 1965 pre-induction examination documents that the Veteran had a history of osteochondritis of the left lower extremity. A September 1966 service treatment record documents the Veteran’s complaint of pain in his left hip. X-ray results showed an old deformity, characterized as questionable Legg Perthes disease. The examiner noted the Veteran’s records were “flagged” (a military slang for suspension of change of status actions) because of dysplasia or congenital dislocation of the left hip. Subsequent September 1966 treatment records and x-ray reports document that the Veteran hurt his left hip and experienced tenderness over the hip joint. X-ray findings showed flattening of the left femoral head and some deformity of the left acetabulum. An old congenital hip dysplasia was favored as the etiology. An October 1966 service treatment record documents that the Veteran had old Perthes disease of the left hip. The October 1966 medical condition/physical profile record also reflects that the Veteran had an old hip disease. The Veteran was restricted from running or marching for six months and it was recommended that his military occupational specialty (MOS) be changed. The March 1968 report of medical history documents that the Veteran had disease in his left hip. The physician explained that the Veteran had Legg Perthes disease of the left hip when he was 11 years old; however, he had no then-current problems. The corresponding March 1968 report of separation examination reflects that clinical evaluation of the lower extremities and other musculoskeletal systems was normal. The Veteran was qualified for separation from service. At his separation, the Veteran was assigned a “1” rating assessing his lower extremity fitness under the PULHES profile system, indicating that the Veteran was then in a high level of fitness. See Odiorne v. Principi, 3 Vet.App. 456, 457 (1992); ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H “); eyes (“E”) and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The July 1974 report of VA examination reflects the Veteran’s complaint that he fell several times in 1966 while on active duty. He stated that he had a sesamoid bone in the left hip that gives him difficulty with forward walking. He reported that his hips would lock, and he would fall. On examination of the left hip, there was some tenderness over the lateral aspect of the left hip with mild limitation of hip flexion and abduction because of pain. X-ray findings showed “a deformed right acetabulum. The head of the femur was also deformed. There seemed to be a shortening of the right femoral shaft with associated valvus deformity.” The diagnosis was history of trauma to the left hip (sesamoid bone). A November 1992 treatment record reflects that the Veteran was status post hip surgery and that he also had arthritis. X-ray findings showed degenerative joint disease (DJD) status post (s/p) avascular necrosis of the left femoral head. An October 1993 VA treatment record reflects that the Veteran had undergone total left hip replacement. A July 1994 report of VA examination reflects the Veteran’s complaint that he experienced left hip pain after he fell while on active duty. He developed avascular necrosis of the femoral nerve. The Veteran developed severe pain and was unable to walk until 1992 when he underwent hip replacement. The Veteran complained of back pain ongoing for several years. He experienced recurrent low back pain and was unable to engage in prolonged sitting. He reported that he had mild improvement of pain and induration of the left thigh. He complained of leg numbness. On examination, the diagnoses were paravertebral myositis, secondary to left leg length discrepancy; residual pelvic girdle muscle weakness, secondary to hip replacement; left hip replacement; and, spondylosis. The April 2016 report of VA hip and thigh conditions examination documents diagnosis of left hip joint replacement. The Veteran claimed that he began to have left hip pain during military service jungle training. He reported that during this training, he stepped in a hole and fell to the ground, injuring his left hip. He claimed that he reported to sick call for aid. After the incident he was placed on physical profile and his MOS was changed from infantryman to cook. Given the physical profile, he reported that his hip pain decreased. He stated that he experienced some soreness but no extreme pain. After service he denied having any falls or accidents involving the left hip. Around 1991 his hip pain intensified and he was forced to stop working because he could no longer stand or walk. He underwent total hip replacement in 1992 and reported at present his hip pain was approximately 4 on a pain scale of 0 to 10. The hip pain radiated to his back and at times during flare ups, he was unable to stand from a sitting position. The physician opined that the left hip disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The physician noted that the pre-induction examination showed that the Veteran fractured his left leg prior to induction into military service. The physician documented extensive review and findings of the service treatment records and explained no other hip complaints were recorded after the September 1966 incident and October 1966 profile record when it was recommended that the Veteran have his MOS changed. Significantly as it evidences a lack of a worsening in service, the physician reported that the Veteran remained in the military for an additional 18 months without evidence of further medical complications or problems of the left hip. Further, there was no documentation of medical problems within a year of his separation from service. The physician noted the July 1974 VA examination report and explained there was a transcription error in the x-ray findings (report indicated findings of the right hip, but the physician believed this was a transcription error and they were findings of the left hip). The physician explained that the July 1974 x-ray findings were like the findings of x-rays in service which showed deformity of the acetabulum with deformity of the femur. The physician concluded that the Veteran’s left hip disability pre-existed his period of military service and no aggravation of the left hip disability was shown during his period of service. The October 2017 VA examination addendum reflects the physician’s extensive review of the service treatment records. The physician reported that the Veteran’s disorder was at least as likely as not Legg-Perthes deformity of the left hip. The physician explained that the hip disorder at least as likely as not developed during trauma sustained to his left hip when the Veteran was a pre-adolescent, as he had stated in his pre-induction report of medical history. The physician explained that Legg-Calve -Perthes disease was a syndrome of idiopathic avascular necrosis of the hip that occurred in children between the ages of 3 and 12 years old. The physician noted that the Veteran could have at least as likely as not had a limp remnant and no residual pain. It was not known if he also had limitation in range of motion in his hip since range of motion findings were not documented on the pre-induction examination. However, the physician determined that the fall in service did not have any clinical significance other than causing attention to be shown to the left hip including having x-rays taken which showed a disorder that pre-dated military service. The physician noted that there was no further or more extensive damage to the left hip documented during the Veteran’s period of military service or within a year following his discharge from service. The physician concluded that the Veteran’s left hip disorder existed prior to service and there was no further evidence of him having more hip pain or complications in his left hip after the fall. The physician noted that the Veteran separated from service without lower extremity complications and he denied experiencing swollen or painful joints. The physician also noted that there was no evidence in the service treatment records of a separate disability of the hip as a result of the claimed in-service fall, which the Veteran alleged was in a training environment. The physician noted that the Veteran appeared to have suffered a contusion that resolved with treatment and rest. Finally, the physician explained that the Veteran’s left total hip replacement was the result of the pre-existing left hip disability running its natural course. The physician concluded that the Veteran’s pre-existing left hip disability was not permanently worsened by service or the in-service fall. The preponderance of the evidence is against a finding of increase in severity of the left hip disability as result of injury sustained during a period of active service. Rather, the evidence shows that the Veteran’s left hip disability pre-existed his entrance into service and no aggravation of the left hip disability was shown during his period. (See April 2016 VA examination). In the October 2017 addendum, the physician explained that the Veteran’s pre-existing disability was Legg-Perthes deformity of the left hip that at least as likely as not developed during trauma sustained to his left hip when the Veteran was a pre-adolescent, as documented in his pre-induction report of medical history. The physician noted that Legg-Calve -Perthes disease was a syndrome of idiopathic avascular necrosis of the hip that occurred in children between the ages of 3 and 12 years old. The physician determined that the fall in service did not have any clinical significance other than causing attention to be shown to the left hip including having x-rays taken which showed a disorder that pre-dated military service. The physician noted that there was no further or more extensive damage to the left hip documented during the Veteran’s period of military service or within a year following his discharge from service. The physician found that the Veteran’s left hip disorder existed prior to service and there was no further evidence of him having more hip pain or complications in his left hip after the fall. The physician also explained that the Veteran’s left total hip replacement was the result of the pre-existing left hip disability running its natural course and concluded that the Veteran’s pre-existing left hip disability was not permanently worsened by service or the in-service fall. This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examinations. There is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current left hip disability and injury sustained during a period of the Veteran’s service. The Veteran is not competent to link his pre-existing left hip disability to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is competent to state that he sustained an in-service fall injury. However, he is a lay person and is not competent to establish that his pre-existing left hip disability was aggravated as a result of any in-service fall. The Veteran is not competent to offer an opinion as to etiology of any current left hip disability. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a left hip disability must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a right hip disability; pelvic girdle muscle weakness; low back disability; left knee disability; and, acquired psychiatric disorder, claimed secondary to a left hip disability The Veteran asserts the claimed right hip disability, pelvic girdle muscle weakness, low back disability, left knee disability and acquired psychiatric disorder onset secondary to the left hip disability. As service connection is not in effect for the left hip disability, service connection for a right hip disability, pelvic girdle muscle weakness, low back disability, left knee disability and acquired psychiatric disorder claimed as secondary to a left hip disability is not warranted. 38 C.F.R. § 3.310. The Veteran is not competent to diagnose or opine as to the etiology of any current right hip disability, pelvic girdle muscle weakness, low back disability, left knee disability and acquired psychiatric disorder. The question regarding the diagnoses and etiologies of such disabilities is a complex medical issue that cannot to be addressed by a layperson. In that regard, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. Accordingly, these claims must be denied. The preponderance of the evidence is against these claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.