Citation Nr: 21001454 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-59 934 DATE: January 8, 2021 ORDER Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s left and right hip disability did not have its onset during service and is not the result of an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1154(b) 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1154(b) 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1966 to July 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran and a witness, H.M., testified at a hearing before the undersigned Veterans Law Judge; a transcript is of record. In December 2019, the Board remanded these matters for further development, which has since been completed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 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 may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left hip disability 2. Entitlement to service connection for a right hip disability The Veteran contends that contends that he injured his hips when he jumped from a guard tower in service. Specifically, he reports that while in a tower on guard duty, guarding an ammo dump, the tower was overrun by the North Vietnamese Army and he was told to jump out of the tower. He further reports that after jumping, he was limping and in pain. See October 2011 Statement in Support of Claim; September 2019 hearing transcript. Additionally, during the September 2019 hearing, the Veteran testified that a VA treating physician told him that his hips were related to the fall he had in service. He has also submitted articles generally indicating that arthritis is common in servicemen. The Veteran has a current diagnosis for osteoarthritis of the bilateral hip. See December 2019 VA contract X-ray report. There is a reported in-service event. Thus, the question before the Board is whether a causal link has been shown between the two. For the reasons stated below, the Board finds that a causal link has not been shown, and thus, service connection of a left and right hip disability is not warranted. Service treatment records do not note any complaints of findings related to the hips. While the clinical evaluation section of the July 1969 separation examination report was not marked, the Veteran was noted to qualify for separation. There was no clinical note regarding the hips on the separation report. The Veteran’s DD Form 214 does not reflect combat awards or medals. Service personnel records do not reflect combat or receipt of any combat awards or medals but do show participation in the Tet Counter Offensive and one other unnamed campaign. The Board notes that RO previously indicated that the Veteran’s unit was verified to have been stationed at Long Binh when an ammo dump explosion occurred. In January 1975, the Veteran underwent a VA examination for his claim for residuals of post-left tibia and fibula fractures. He was noted to have injured/broken his left leg in 1973, years after service discharge. The examiner at the time noted that he had no bone or joint problem referable to his military service, but did note a post-service, September 1973 hunting incident resulting in those left leg fractures. VA treatment records reflect that the Veteran first reported left hip pain in September 2006. More contemporary records reflect that he has chronic hip pain secondary to arthritis. A review of his 2007 Social Security Administration (SSA) disability records did not reflect complaints of bilateral hip pain or provide a nexus opinion. Pursuant to the Board’s remand, the Veteran underwent a VA contract examination of the hips in December 2019. He reported that in January 1968, he was instructed to jump from a guard tower where he was guarding ammunition. He had current hip pain and was being treated with therapy and medicine. After review of the claims file and the Veteran’s statements, the examiner opined that his left and right hip disability was less likely than not due to service. The examiner noted that his service treatment records were silent for a hip condition and there was no evidence present that the bilateral hip condition occurred within one year after discharge from service. She explained that the accompanying X-ray report noted he had mild to moderate osteoarthritis of the hips, which occurs from normal wear and tear and age. In a January 2020 VA-contracted medical opinion, a different examiner, after review of the claims file and the Veteran’s statements, again noted that his service treatment records were silent for a hip injury or incident; the first complaint of a hip condition was for his left hip in September 2006. While the examiner acknowledged the Veteran’s jump from the guard tower, she noted that there was almost 40 years without mention or documentation of hip pain since the January 1968 in-service event. As such, it was unlikely that osteoarthritis of the hips was the result of this one incident of this nature. The examiner explained that osteoarthritis develops over time and was the culmination of wear and tear usually over years of time. The medical imaging of both hips showed osteoarthritis as early as of November 2012, and that osteoarthritis of the hips was not an uncommon finding in a 64-year-old male. Given the above, the competent medical opinion evidence of record found no evidence of a current disability related to the reported in-service injury. The Board has considered the Veteran’s testimony, personal statements, and the submitted articles. The Veteran is competent to report hip pain, which is within the realm of his personal experience. However, he is not competent to offer an opinion as to the etiology of his claimed disability. Determining the etiology of arthritis of the hips in this case requires medical knowledge or training that the Veteran does not have and is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The left and right hip disability is therefore not found to have been incurred during service. There has been no medical opinion submitted to the contrary. With regard to the September 2019 hearing testimony that a VA treating physician told him that his hips were related to the fall he had in service, there are no VA treatment records containing such a statement of reflective of such an opinion. With regard to the articles submitted by the Veteran, the Board notes that they are of a general nature and do not contain any information or analysis specific to the Veteran. Therefore, they are of very limited probative value and are less probative than the VA-contracted medical opinions. The Board acknowledges that the evidence shows degenerative changes in the hips. To the extent the Veteran has osteoarthritis of the hips, the evidence does not show that the arthritis was manifest to a compensable degree within one year of separation of service. The Veteran has not otherwise indicated that he has had bilateral hip pain or symptoms since an injury in service, or since service discharge. Additionally, the evidence weighs against continuity of symptomatology given that there were no clinical notes at separation, and the January 1975 VA examiner noted that he had no bone or joint problem referable to his military service. Also, additional post-service evidence did not reflect hip complaints until September 2006, which was many years following service. Thus, service connection is not warranted under the provisions pertaining to presumptive service connection for chronic diseases. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. As the Veteran contends that he jumped out of a guard tower during combat-related events, and to the extent the RO has conceded combat exposure, the Board must accept the Veteran’s lay assertions of in-service incurrence of injuries or disease incurred or aggravated in combat, to the extent they are consistent with the circumstances, conditions or hardships of such service. See 38 U.S.C.A. § 1154 (b); 38 C.F.R § 3.304 (d). Regardless, the Veteran must still establish that a causal relationship exists between the present disability and the in-service injury or disease. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The competent and probative medical evidence does not support a causal relationship between the reported injury and event in service to the currently diagnosed bilateral conditions. Historically, a January 1975 VA examiner found the Veteran had no (left leg) bone or joint problem referable to his military service. The December 2019 and January 2020 VA-contracted medical nexus opinions obtained in connection with this appeal were based on a thorough review of the claims file and provided a sufficient rationale for the opinions when reviewed together. The January 2020 medical opinion was well-reasoned, detailed, consistent with the other evidence of record, and included consideration of the relevant history. Accordingly, these opinions are entitled to great probative weight. There are no competent and equally probative medical opinions to the contrary regarding causal nexus. Given the above, the preponderance of the evidence is against the claim of service connection. There is no doubt to be resolved; and service connection is not warranted for a left and right hip disability. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   REASONS FOR REMAND 3. Entitlement to a TDIU is remanded. The Veteran last completed a VA Form 21-8940 in October 2011. On this form, he asserted that he is unable to work due to various service-connected and nonservice-connected disabilities. At the hearing held before the undersigned in September 2019, the Veteran testified that he last worked full time about 10-15 years ago, in either 2002 or 2003. See Hearing Transcript, page 9. However, VA treatment records added to the file after the Board hearing show he reported additional employment to medical providers. This included working in the floral department at Walgreens and performing flower arrangement work at a plant shop during, at least, the years 2017 and 2018. Given this, he should be afforded an opportunity to clarify his work history since 2011. He should be asked to submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 with information regarding any and all employment and employers since October 2011. The matter is REMANDED for the following actions: Ask the Veteran to complete a new VA Form 21-8940, and VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, from all employers since October 2011. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.