Citation Nr: 21004294 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-07 323 DATE: January 26, 2021 ORDER Entitlement to service connection for a right hip disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran’s current residuals of a right hip replacement, with a prior diagnosis of osteoarthritis, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease and has not been shown to be proximate to, or aggravated beyond natural progression by, service-connected degenerative disc disease, lumbar spine with intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1964 to March 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2018, the Veteran presented testimony at a Board hearing before a Veterans Law Judge who has since retired. In November 2020 the Board sent a letter to the Veteran offering the opportunity for a new hearing. The Veteran did not respond and the appeal will be decided based on the evidence available including the transcript of the June 2018 hearing. In October 2020 the Board incorrectly sent a letter offering a virtual hearing and the Veteran did not respond. 1. Entitlement to service connection for a right hip disability The Veteran contends that he is entitled to service connection right hip disability. Specifically, in a statement received by VA in October 2008, the Veteran reported that his hip pain and weakness, as well as other disability, was incurred from an April 1, 1972 motorcycle accident as documented in an April 3, 1972 service treatment record. In the alternative, in a July 2011 statement, the Veteran reported that his hip replacement was not a direct result of the motorcycle accident in the Navy, but was due to steroids administered to him on many occasions to ease the chronic pain from the lumbar injury caused by the motorcycle accident and this was responsible for the deterioration of his hip over a two year period from 2001 to 2003. In June 2018 testimony, the Veteran reported during service, on April 8th, during a motorcycle outing, he landed badly and compressed his spine and hip. However, he also testified that he believed his right hip disability was due to his back disability, because he was given prednisone, which he believed disintegrated his right hip through aseptic necrosis and that basis for his belief was that his mother had the same issue as prednisone destroyed her hip as well. Also of record are statements, received by VA in December 2008, from the Veteran’s brother,T. M., a sister M. P., a brother in law, S. P., a sister S. H., and a brother in law,W. H., which generally indicated the Veteran injured his hip during his active service and that he had had chronic hip pain from service to the present. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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 service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic disease, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The question for the Board is whether the Veteran has a right hip disability, to include a qualifying right hip disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service for a qualifying disability, whether he has a right hip disability which is otherwise shown to be etiologically related to an in-service injury, event, or disease, or is secondary to service-connected degenerative disc disease, lumbar spine with IVDS. In this regard, a November 2009 VA examiner endorsed a diagnosis of right hip replacement, stable joint, which is consistent with the other evidence of record. Indeed, although not proximate to the current claim received by VA in October 2008, the Veteran’s medical records documented he underwent a right hip replacement in April 2004. Additionally, November 2003 private imaging provided an impression, in part, of marked arthritic changes involving with right hip and December 2003 private imaging provided an impression of advanced osteoarthritis of the right hip. Thus, the Veteran’s right hip disability is best characterized as residuals of a right hip replacement, with a prior diagnosis of osteoarthritis, and the issue before the Board become whether the Veteran’s right hip disability is as a result of his active service. The Board concludes that, while the Veteran had a prior diagnosis of osteoarthritis of the right hip, which is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a), it has not been shown to have manifested to a compensable degree within the presumptive period, nor has continuity of symptomatology since service been established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker, 708 F.3d at 1338; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In this regard, the weight of the evidence demonstrates the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran and his family members are competent to describe the extent of the Veteran’s observable symptomatology and the continuity of perceivable symptomatology from service onward, as related to his right hip disability. See Layno v. Brown, 6 Vet. App. 465 (1994). However, they have not been shown to be competent to provide a diagnosis in this case or to determine whether any right hip symptoms experienced by the Veteran were manifestations of osteoarthritis as they have not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, these assertions of continuity of symptomatology are largely not credible as they are undermined by the absence of any report of symptomatology, including right hip pain, until many years after separation from service, as well as objective evidence of record to the contrary. In this regard, consistent with the Veteran’s recollection of an in-service motorcycle accident, the record demonstrates an April 8, 1972 in-service complaint related to a motor cycle accident, specifically, that he had a back injury since Saturday when he was making motorcycle jumps and sustained several strong jarring’s to the spine, and at that time sharp low back pain onset. However, the April 8, 1972 service treatment record does not document any complaints or injury related to the right hip and the Veteran’s service treatment records do not reflect any subsequent persistent right hip complaints related to this visit for the remainder of his active duty, or any complaints at all related to his right hip. Moreover, a June 1975 in-service examination, conducted in conjunction with the Veteran’s separation from service, found his lower extremities, as relevant to a right hip disability, were clinically normal upon examination, which also weighs against a finding continuity of symptomatology. In this regard, Board finds that if the Veteran had experienced continuous right hip disability, injury or pain, while in service, it would have been reasonable for him to have reported, and sought treatment for it during service, especially as he sought treatment for other medical conditions. However, as discussed above the Veteran’s service treatment records do not reflect the existence of a chronic right hip disability. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Further, the Veteran has not consistently reported that he experienced continuous right hip disability since service. In this regard, the Board observes that in June 2018 testimony, the Veteran reported that he first noticed symptoms with regard to the right hip about six months before the surgery on April 12, 2004, which weighs against the claim on a presumptive basis. Further, the Veteran’s post service medical records do not reflect right hip complaints, or a diagnosis thereof, until many years after separation from service. Specifically, July 2000 private imaging documented mild narrowing of the right hip joint space, but did not provide a specific diagnosis. As discussed above, November 2003 private imaging provided an impression, in part, of marked arthritic changes involving with right hip and December 2003 private imaging provided an impression of advanced osteoarthritis of the right hip. As noted by an October 2019 examiner, which is consistent with the evidence of record, the Veteran’s first reported right hip complaint was more than 20 years after his release from active duty, and that his medical records of right hip treatment in 2004 showed a diagnosis of arthritis and radiology reports just months prior to his right hip arthroplasty noted arthritis. The record reflects Veteran was found to have a osteoarthritis of the right hip confirmed by x-ray performed in November 2003, which was over 28 years after separation from service. While not dispositive, the passage of so many years between discharge from active service and the initial demonstration of a diagnosis is a factor that weighs against a finding of service incurrence and continuity. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, in weighing the evidence, the Board finds the Veteran’s service medical records, which are contemporaneous to his active service, and his post service medical records, are more probative than the argument from the Veteran and his family members, that the Veteran experienced right hip pain during and since service, made many years after service for compensation purposes. See Curry v. Brown, 7 Vet 59 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991) (a pecuniary interest may affect the credibility of a claimant’s lay testimony). The Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as applicable precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one factor the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, to the extent the Veteran contends he had chronic symptoms of osteoarthritis of the right hip in service, or shortly after service, and ever since, the medical and lay evidence of record does not support this contention. For these reasons, the criteria for presumptive service connection based on chronic symptoms in service, continuous symptoms since service, or that osteoarthritis of the right hip manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation, have not been met. Service connection for a right hip disability may still be granted on a nonpresumptive direct-incurrence basis or secondary basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right hip disability and an in-service injury, event or disease, or with his service-connected degenerative disc disease, lumbar spine with IVDS. 38 U.S.C. §§ 1110, 1131; Shedden, 381 F.3d at 1166-67, Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.303 (a), (d), 38 C.F.R. § 3.310. In this regard, in September 2018, Board found the November 2009 VA examiner’s opinion to be inadequate, and thus, it need not be discussed further. Pursuant to the September 2018 Board remand, an October 2019 opinion was obtained. The October 2019 VA examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The October 2019 VA examiner also found the claimed condition was less likely than not proximately due to, or the result of, the Veteran’s service-connected condition. As a rationale, the October 2019 VA examiner explained the Veteran’s service treatment records showed no medical treatment or complaint of any right hip condition at the time of his motorcycle accident in April of 1972 through his release from active duty. The October 2019 VA examiner also noted the first reported right hip complaint was more than 20 years after the Veteran’s release from active duty, medical records of right hip treatment in 2004 showed a diagnosis of arthritis and radiology reports just months prior to his right hip arthroplasty noted arthritis, and there was no mention of avascular necrosis. The October 2019 VA examiner explained if the Veteran had been on long-term steroid treatment, he would potentially have an increased risk of developing avascular necrosis of his right hip but that medical records in and around the time of his right hip replacement surgery confirmed that this was not the case. The October 2019 VA examiner found review of this Veteran’s file showed no objective evidence supporting the premise that his right hip condition resulted from his in-service motorcycle accident or from steroid use for his low back condition. The October 2019 VA examiner also opined that degenerative disc disease of the lumbar spine with IVDS does not cause right hip arthritis in the vast majority of patients and review of the Veteran’s file shows no objective evidence supporting the premise that his right hip condition resulted from his service-connected degenerative disc disease of the lumbar spine with IVDS or from steroid use to treat his low back condition. In terms of aggravation, the October 2019 VA examiner also explained the medical record evidence in the Veteran’s file showed that, if anything, the right hip condition was reported to aggravate his low back. The October 2019 VA examiner’s opinions are probative, because they are based on an accurate medical history and provided explanations that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, consistent the October 2019 VA examiner’s findings, December 2003 private imaging provided an impression of advanced osteoarthritis of the right hip but also noted, in part, the pattern did not suggest antecedent osteonecrosis. Also of record is a July 2018 medical letter from Alan E. Hibberd, M. D., in which he states that steroids, especially those taken orally, could have a significant effect on the musculoskeletal system, and, more significantly, it could cause osteoporosis, increased risk of fractures, especially of the spine and tendon rupture, and could weaken the immune system, cause muscle weakness, and in particular, could cause a vascular necrosis, which was loss of blood supply to the femoral heads, other bones also could be involved. Dr. Hibberd noted that if this caused significant deterioration of the hip joint, it may lead to eventual need for a hip arthoplasty. However, notably, Dr. Hibberd did not, in fact, indicate that that was had happened in the Veteran’s case. Indeed, Dr. Hibberd discussed the effects of steroids in general terms and did not make any application to the Veteran’s case. Thus, Dr. Hibberd’s opinion lacks probative value and is not sufficient to establish a nexus on a secondary basis. The Veteran and his family members believe the Veteran’s right hip disability is related to an in-service injury, event, or disease, or is secondary to service-connected degenerative disc disease, lumbar spine with IVDS. However, as discussed above, the Veteran and his family members have not been shown to have the requisite medical knowledge or training to be deemed competent to provide a nexus opinion regarding these issues. These issues are medically complex, as they require knowledge of specialized medical education. Therefore, it is outside the competence of the Veteran and his family members in this case because the record does not show that they have the medical training or credentials to make these determinations. Jandreau, 492 F.3d at 1377; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to clinical evidence of record, including the October 2019 VA examiner’s findings and opinions. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, service connection is not warranted for a right hip disability. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. A March 2020 VA examiner diagnosed other specified trauma and stressor-related disorder and major depressive disorder. The March 2020 VA examiner found these were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness; however, the examiner erroneous relied on an in-service finding of depression and erroneously relied upon on unverified stressors. The March 2020 VA examiner also relied upon an August 2018 private opinion proffered by Lisa Trahan, Ph.D., who diagnosed the Veteran with PTSD based on in-service stressors. Specifically, in an August 2018 opinion, Lisa Trahan documented the Veteran described no fewer than 10 life threatening events experienced during his service due to airplane engine loss, malfunctioning landing gear defective airplane wings, a hole in airplane fuselage, and two ditch efforts in flight, and based on the Veteran’s report, he met the criteria for PTSD beginning in 1967 and reportedly experienced relief from his symptom in 1991 upon initial of psychotropic medication. In an October 2018 addendum opinion, Lisa Trahan clarified that the Veteran’s PTSD was directly related to his in-service stressors. However, none of the Veteran’s reported stressors have been verified. In this regard, pursuant to the September 2018 Board remand directive to verify the Veteran’s reported stressors, in April 2020, the Joint Services Records Research Center (JSRRC) was unable to verify the Veteran’s report of delivery of an aircraft to Naval Air Station (NAS) in Atsugi, Japan, in 1965. However, the Veteran also reported other stressors for which no development was completed as directed by the September 2018 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, during the March 2020 examination, the Veteran reported between 1967 and 1968 he was part of ferrying C 47’s to Vietnam, that they had to install a 500 gallon fuel tank in the cabin and when the plane took off, it was overweight, and could not get up high enough to get over the Oakland Bridge. He also reported, in part, around 1967, on a P3 Ferry flight, while 40 miles off the coast of California, the plane lost an engine, then two more engines were lost, and on landing, the plane lost the fourth and last engine. He also reported, in part, in 1968, flying from Iran to Turkey, the plane could barely make it over the 17,000 ft. mountains, lost an engine, slid down the back side of the mountains, and made an emergency landing. He also reported, that while in Guam, he experienced many near miss crashes, a fire aboard a submarine, and he also witnessed a plane coming in on approach that crashed and tumbled down the landing strip killing everyone on board. In June 2018 testimony, the Veteran described additional stressors, including related to an in-flight fire on an aircraft, that in 1965 while landing at Midway Island the landing gear did not come down, that in 1967 or 1968 when flying from Alaska to Tokyo, Japan, he worried about drifting into the Soviet territory, that once taking off from Guam the airplane began shake violently as if it were going to be destroyed midair, and also that in 1966, he was going back to the patrol squadron in Hawaii and the aircraft lost three engines and as the plane landed back in Almeda, the fourth engine was also lost. In an October 2019 statement, the Veteran also described from 1965 to October 1968, he was stationed as NAS Noris and he ferried C-47s fitted with two 500 gallon fuel tanks that had to climb while circling to gain enough altitude to fly over Oakland Bay Bridge, that he had to deliver C-119 from NAS North Island to NAS Atsugi, Japan, not knowing whether the plane was in Soviet airspace, and that months later, when ferrying same C-119 to Cherry Point, the plane experienced engine failure, and that on a P-3 ferry flight from NAS Alameda, the plane lost three engines and taxied just as lost fourth engine. He also described on takeoff in a VC-54 from Calcutta, India, the flight controls locked with a chain wrapped around the yoke and secured to the flight deck with a hook, and that in the same VC-54 several days later he departed Tehran for Istanbul and barely cleared the 17,000 ft. mountains, lost an engine, descended just above the backside of the range and made a cautionary landing at Ankara. He also described in Honolulu, he was in plane which almost collided with a 747, and in El Paso, he was in a plane which almost collided with a Navy A-1. In the October 2019 statement, the Veteran also described from June 1971 to October 1973, he was stationed at NAS Agana, Guam and that once an aircraft began to shake violently, that on December 9, 1972 he watched a C-130 crash, that once a cockpit filled with smoke, and when he was aboard the USS George Washington there was a fire. A review of the claims file does not reflect that the AOJ attempted to corroborate these reported stressors. Further, VA’s duty to assist is not bound by JSRRC’s 60-day requirement and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. Gagne v. McDonald, 27 Vet. App. 397 (2015). Based on holding in Gagne, VA must submit multiple 60-day inquiries to the JSRRC sufficient to address the period of time identified by Veteran for his reported stressors. Additionally, after the Veteran’s reported stressors are developed another examination is warranted due to the deficiencies in the March 2020 VA examiner’s findings, as discussed above. The matters are REMANDED for the following actions: 1. Submit sequential requests for service department verification of the Veteran’s reported PTSD stressors, including to the JSRRC, until the entire intervals during which stressors are alleged to have occurred are covered, pursuant to Gagne v. McDonald, 27 Vet. App. 397 (2015). These stressors include (a) between 1967 and 1968, the Veteran was part of ferrying C 47’s to Vietnam, that they had to install a 500 gallon fuel tank in the cabin and when the plane took off, it was overweight, and could not get up high enough to get over the Oakland Bridge; (b) around 1966 or 1967, on a P3 Ferry flight, while 40 miles off the coast of California on the way to Hawaii, the plane lost an engine and turned around, then two more engines were lost, and on landing, the plane lost the fourth and last engine; (c) in 1968, he was flying from Iran to Turkey and the plane could barely make it over the 17,000 ft. mountains, lost an engine and slid down the back side of the mountains, and made an emergency landing and/or a cautionary landing at Ankara, (d) while in Guam, he experienced many near miss crashes, a cockpit filled with smoke, a fire aboard a submarine (possibly the USS George Washington), and on December 9, 1972 he also witnessed a plane coming in on approach that crashed and tumbled down the landing strip killing everyone on board; (e) an in-flight fire on an aircraft; (f) that in 1965 while landing at Midway Island the landing gear did not come down; (g) that in 1967 or 1968 when flying from Alaska to Tokyo, Japan, and/or Atsugi, Japan, he worried about drifting into the Soviet territory, and when ferrying same C-119 to Cherry Point, the plane experienced engine failure; (h) that taking off from Guam the airplane began shake violently as if it were going to be destroyed midair; (i) on takeoff in a VC-54 from Calcutta, India, the flight controls locked with a chain wrapped around the yoke and secured to the flight deck with a hook; and (j) in Honolulu he was in plane which almost collided with a 747 and in El Paso he was in a plane which almost collided with a Navy A-1. If more details are needed, contact the Veteran and his representative to request the information. 2. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination with an examiner other than the March 2020 VA examiner to determine the nature and etiology of any acquired psychiatric disorder, including PTSD. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.