Citation Nr: 20026085 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 19-20 387 DATE: April 15, 2020 ORDER Service connection for a right hip disability is denied. FINDINGS OF FACT 1. A right hip disability preexisted the Veteran’s service. 2. The Veteran’s right hip disability was not aggravated or worsened beyond normal progression during or as a result of his military service. CONCLUSION OF LAW The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1995 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the application to reopen the claim of entitlement to service connection for a right hip disability. In October 2019, the Board reopened the claim of entitlement to service connection for a right hip disability and remanded the underlying claim for additional development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection The Veteran contends that his right hip disability was aggravated during active service. Throughout the record, the Veteran has conceded that he had a pre-existing right hip disability before he entered service. He argues that he had no issues with his right hip until basic training where he exacerbated his hip injury. This resulted in loss of range of motion and severe pain and damage. The Veteran further argues that his placement on a permanent L3 profile suggests that his right hip disability was aggravated in basic training. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 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 examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In deciding whether a condition preexisted service the Board must consider the Veteran's medical history, accepted medical principles, evidence of the “basic character, origin and development” of the condition and “lay and medical evidence concerning the inception, development and manifestations” of the particular condition. 38 C.F.R. § 3.304(b)(1)-(2). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Service treatment records contain a June 1995 enlistment examination in which the Veteran was noted to have a scar in the lateral aspect of his right thigh and normal evaluation of the lower extremities. In his report of medical history, the Veteran denied any physical impairments, including of the joints and extremities. However, the Veteran did not enter service until October 4, 1995. At a November 1995 visit, the Veteran endorsed right hip pain for the past two weeks and a history of right hip surgery. The clinician determined that the Veteran had full range of motion of the hips and an antalgic gait. An x-ray examination the next day showed that the Veteran had right hip pinning but no fracture or dislocation of the hip. At another visit later that same month the Veteran had decreased range of motion of the right hip. At a December 1995 Entrance Physical Standards Board (EPSBD) Proceeding, the Veteran complained of right hip pain localized in the groin area that prevented him from training. He reported a past history of slipped cap femoral epiphysis treated with closed pinning in situ. X-ray findings showed hardware in place for pelvic surgery of the right hip with evidence of old slipped cap femoral epiphysis. The reviewing orthopedists determined that the Veteran’s condition would not improve with military training and recommended that the Veteran be separated as he did not meet medical fitness standards for enlistment. The orthopedists also found that the Veteran’s condition existed prior to service but was not aggravated by service. Post-service treatment records show that at a March 2001 office visit, the Veteran had limited internal rotation of the right hip that was not painful. He also reported a history of right hip surgery, internal fixation of a slipped capitofemoral epiphysis, in 1991. In a September 2004 letter, the Veteran’s chiropractor determined that based on the structural weakness of the Veteran’s lumbar region and right femoral neck (hip), he would have recurrent, intermittent symptoms of pain and numbness in the right leg. A July 2009 x-ray showed that the Veteran had possible acetabular fracture of the right hip. A December 2014 x-ray documented previous orthopedic procedure right femoral neck with a screw along the long axis and right femoral neck appears shorter than left and mild osteoarthritis of the right hip. A Social Security Administration Disability Report shows that the Veteran stated that “since having hip surgery in his teenage years his right leg has not been right.” Throughout the record, the Veteran has conceded that he had right hip surgery prior to service. In his February 2003 claim for a right leg disability, the Veteran reported that prior to entering service he had surgery on his right leg. In an October 2004 statement, the Veteran stated that prior to entering service, he had a screw placed in his right hip. The Veteran was afforded a VA examination in January 2020. The VA examiner diagnosed the Veteran with osteoarthritis of both hips. At the examination, the Veteran reported that he had hip surgery in high school due to a right hip fracture sustained while playing football. He passed the physical examination for entry into service but developed swelling of the right hip during basic training. He was given crutches and placed on a permanent profile. He reported that he worked at various jobs after service, including warehouse and forklift operator. The Veteran also stated that he has developed more pain in the right hip over time. The examiner opined that the Veteran’s right 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 examiner reasoned that the Veteran’s injury during basic training was acute and resolved, as no further problems of the right hip were endorsed until a 2009 x-ray showing possible acetabular fracture, while the Veteran was employed in another job. The examiner explained that the Veteran worked various jobs post-service jobs, including as a warehouse and forklift operator which consisted of lifting heavy boxes. The examiner concluded that the Veteran’s right hip disability was not aggravated beyond its natural progression during service, as the Veteran was able to be employed in jobs that required significant manual labor following his discharge from service. After review of the evidence of record, the Board finds that the Veteran’s right hip disability clearly and unmistakable existed prior to his entrance into service, and that it clearly and unmistakably was not aggravated during or as a result of service. As such, service connection for a right hip disability is not warranted. Turning first to the statements made by the Veteran, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of his right hip disability, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Hence, his lay assertions in this regard have no probative value. In addressing the competent evidence of record, the Board finds that the negative opinion of the January 2020 VA examiner, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes service treatment records indicating that the Veteran had temporary exacerbation of symptoms during service and EPSBD proceedings documenting two orthopedists’ findings that the Veteran’s right hip disability was not aggravated by service, post-service treatment records associating right hip pain with his various post-service jobs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. In addition, the above evidence reflects that osteoarthritis, a chronic disease, did not manifest and was not noted in service and did not manifest within the one-year presumptive period. The provisions of 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.307 with regard to chronic diseases are therefore not for application. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.