Citation Nr: 21000878 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-32 237 DATE: January 6, 2021 ORDER Entitlement to service connection for residuals of a stress fracture to the right proximal femur is granted. Entitlement to service connection for kidney stones is denied. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether the Veteran has current residuals of a documented injury to his right upper femur and hip area during service. 2. The record lacks evidence documenting the existence of a current kidney stone disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a stress fracture to the right proximal femur are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for kidney stones are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to January 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2011 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified in a hearing before a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript of the hearing has been included in the electronic record and has been reviewed. In April 2019, the Board remanded the claims on appeal for additional development. In November 2020, the Board offered the Veteran an opportunity to testify in a hearing before the undersigned VLJ. The Veteran did not respond the offer, however. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred upper right leg and right hip disability during service as the result of a stress fracture to the proximal femur, and then developed kidney stones as the result of treatment for the injury. Law and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). In all cases, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). “When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The “presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.” Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of service treatment records (STRs), private and VA treatment records, and VA examination reports dated in March 2011, February 2013, June 2013, and November 2019. The Board will address the claims separately below. Right leg and hip For the following reasons, a service connection finding is warranted for residuals of an injury to the upper right femur/hip area. First, the evidence shows that the Veteran has a disorder involving the upper right femur and hip area. Most recently, in the November 2020 VA report, the examiner diagnosed the Veteran with right trochanter bursitis. Second, the Veteran injured his right hip area during service. Several STRs document treatment for a stress fracture to the proximal right femur. A bone scan and x-ray in early 1991 revealed a healing stress fracture to the right proximal shaft in the upper leg at the point where the femur meets the pelvis to form the hip joint. Subsequent STRs document multiple complaints of right hip and upper leg pain and the use of crutches and a cane. Third, the evidence is divided with regard to whether the current trochanter bursitis is related to the bone fracture suffered to the trochanter during service. Certain evidence indicates that, notwithstanding the coincidence, the current trochanter bursitis is unrelated to the in-service trochanter fracture. Indeed, the VA reports contain opinions stating that the injury resolved and did not have any current residuals. The Board finds these opinions of limited probative value, however. None explains the glaring issue here – how can the in-service fracture not be at least partly related to the development of an inflammatory disorder in the same location. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Thus, the probative evidence before the Board consists of the well-documented injury during service, the documented lengthy recovery during service from the injury, and the current bursitis to the same area injured during service. Based on the foregoing evidence, the Board cannot find that a preponderance of the evidence is against the claim. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Kidney stones The Veteran asserts that treatment during service for the stress fracture caused kidney stones. He states that dietary supplements used to strengthen the bone affected by the stress fracture led to the stones. He also states that he was treated for the disorder at a private hospital in the early 1990s. (Continued on the next page)   While the Board has no reason to question the Veteran’s reported history, a service connection finding is nevertheless unwarranted here. That is because there has been no evidence of a kidney stone disorder dated during the appeal period – i.e., since the claim of entitlement to service connection for kidney stones filed in October 2010. As noted by the November 2020 VA examiner, the record does not contain evidence of the treatment of the claimed problem. The Veteran has merely claimed a history of the problem during service. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.... In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the claim of entitlement to service connection for kidney stones must be denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.