Citation Nr: 21062775 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-20 474A DATE: October 12, 2021 ORDER Service connection for a left hip disorder is denied. FINDING OF FACT A left hip disorder, diagnosed as Legg-Calves-Perthes disease, clearly and unmistakably pre-existed the Veteran's entrance to both periods of active duty and was not aggravated beyond the natural progression therein, and chronic avascular necrosis and degenerative joint disease of the left hip are a progression of, or secondary to, Legg-Calves-Perthes disease. CONCLUSION OF LAW The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from June 1962 to September 1966, and in the Army from February 1978 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office. In March 2018, the Veteran and his daughter testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2018, the Board remanded the issue on appeal for additional development and, in February 2020, denied service connection for a left hip disorder. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted the Veteran's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the Board's February 2020 decision for action consistent with the JMR. In May 2021, the Board remanded the appeal for additional development and, as there has been substantial compliance with such directives, the case now returns for further appellate review. D'Aries v. Peake, 22 Vet. App. 97 (2008). Entitlement to service connection for a left hip disorder. The Veteran contends that a left hip disorder is related to his military service, to include as a result of injury from frequently jumping off tanks and when he was attacked on a bus and someone kicked his leg. Consequently, he contends that service connection is warranted for a left hip disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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 into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111 ; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Thus, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; 38 C.F.R. § 3.304(b) ("[o]nly such conditions as are recorded in examination reports are considered as noted"). As noted, this presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn, 25 Vet. App. at 234. 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 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. 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. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). As an initial matter, the Board notes that the Veteran has a current disability of a left hip disorder, as shown by his diagnoses of Legg-Calves-Perthes disease with femoral head osteonecrosis, chronic avascular necrosis, and degenerative joint disease. See November 2010 VA Examination; December 2010 VA Treatment Record; July 2019 VA Medical Opinion. Turning to his active service, no abnormality of the left hip was noted on entry to either period of the Veteran's military service; however, his service treatment records (STRs) show treatment referable to the left hip, including an impression of healed Legg-Perthes disease based on X-ray findings in 1965. The same record also notes a developmental abnormality in the left hip, and a dislocation of the acetabulum and the head of the femur. However, such records are otherwise silent as to complaints, treatment, or diagnosis of the left hip, including on his final separation examination in July 1979. The Veteran's post-service VA treatment records contain an initial complaint of hip pain in August 2002, at which time he complained of pain in all his joints. In September 2002, he reported pain that started in his left hip then traveled across his low back. There was no further complaint in the record until a September 2006 note, at which time the Veteran complained of left hip pain for the past 5 years. An MRI showed chronic left hip pain consistent with disc protrusion on the L3 nerve, and findings of chronic avascular necrosis and questionable posterior labral tear in the left hip. A July 2010 X-ray showed the left hip with a chronic appearing deformity of the femoral head. A December 2010 note indicated the Veteran had degenerative joint disease of the left hip secondary to Legg-Calve-Perthes disease. A February 2012 X-ray was suggestive of old trauma to the left hip with possible hardware removal, and a February 2012 VA treatment record notes the Veteran has a congenital defect of "cathes-perthes" (Legg-Calve-Perthes), which was very painful/progressive. The Veteran underwent a VA examination in November 2010 to determine the nature and etiology of his claimed left hip disorder. At such time, the examiner diagnosed the Veteran with left femoral head osteonecrosis, Legg-Calves-Perthes disease by history, and opined that such is not caused by or a result of a hip condition or hip pain while on active service. The examiner supported her opinion by noting that Legg-Calve-Perthes does not occur after puberty, and imaging taken at the time of the in-service leg injury showed necrosis and stabilization of the femoral head had already occurred. Therefore, the Veteran's left hip disorder was not caused or a result of an injury to the left leg during his military service. However, as the foregoing opinion did not adequately address the nature and etiology of the Veteran's left hip disorder, the Board remanded the claim in June 2018 to secure an addendum opinion, which was obtained in July 2019. At such time, the VA examiner conducted a detailed review of the entire medical evidence of record, including the Veteran's STRs and his post-service treatment records, and considered the Veteran's contentions. She then opined that the Veteran's current left hip disorder was not incurred in service, nor was it related to an injury, event, or illness from service. In offering such opinion, the examiner noted that the Veteran's in-service left hip diagnosis was noted to be "Healed Legg-Prather, Left," and, although the official date of onset of the disorder was unknown, she indicated that it is a disease of childhood that occurs when the blood supply to the femoral head of the hip joint is temporarily interrupted, resulting in possible bone death. She further noted that the discovery of the disorder in service was incidental to imaging done for the spine, and there is a lack of sufficient objective evidence to establish an actual in-service left hip disorder manifesting to a compensable degree during service or within one year of separation. She also noted that the Veteran's Legg-Prather of the left hip was currently clinically asymptomatic. Per remand instructions, the examiner emphasized that the Veteran's Legg-Calve-Perthes disease is a developmental, but not congenital, in nature as it occurs at some point during childhood. She opined that, because such disorder is a diagnosis of childhood, it clearly and unmistakably pre-existed service. The examiner further opined that such disorder, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. She supported her opinion by again observing that there were no left hip complaints in service; rather, such was found incidentally and there was no treatment rendered. The examiner further noted it was asymptomatic during service, and there were no current manifestations of the disorder. Finally, she opined that the radiographic findings of avascular necrosis of the left hip noted on MRI dated 2006 are consistent with a remote vascular compromise, which is likely the natural progression of the Veteran's childhood injury consistent with his childhood Legg-Calve-Perthes disease. Based on the foregoing opinion, the Board denied service connection for a left hip disorder in the February 2020 decision. However, the parties to the January 2021 JMR found that such opinion was inadequate to decide the claim as the examiner did not address the Veteran's lay statements of having left hip pain during service and continuing thereafter; being attacked by someone who kicked him on the bottom of his left foot which pushed his leg up into his body; and the nature of his duties during service, to include climbing and jumping off from tanks, which the Veteran contends aggravated his left hip disorder. Thus, in May 2021, the Board remanded the claim in order to obtain an addendum opinion addressing such matters. Accordingly, in August 2021, the July 2019 VA examiner reviewed the record and again opined that the Veteran's Legg-Calve-Perthes was a development disease of childhood and was not a congenital condition as he was not born with it. She also noted etiology reviews affirmed that this was a condition that occurred sometime during childhood as a result of a transient occlusion of blood flow to the femoral head. Thus, she opined that the Veteran's Legg-Calve-Perthes disease clearly and unmistakably pre-existed military service as the pathophysiology and etiology of such disorder establishes that it was a condition of childhood. She also opined that such disease, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support thereof, she provided the same rationale as she did in July 2019. Additionally, she noted that the Veteran's lay statements, particularly those recorded at the March 2018 Board hearing, were considered in rendering her opinions. She also noted that the negative opinions were not the result of the lack of any corroborating evidence of injury or illness, but solely based upon the pathophysiology, etiology, and science of the known condition. In this regard, the examiner noted that, even if the Veteran experienced additional left hip injuries as a result of an assault and his in-service duties, there was no evidence that there was additional compromise of blood flow resulting in the acceleration of femoral neck and head disease that would be related to Legg-Calve-Perthes as in-service left hip examinations were normal, and there was no evidence of a symptomatic intrinsic left hip condition to date. Specifically, she explained that lumbar magnetic resonance imaging (MRI) findings coupled with the Veteran's subjective report symptoms establishes the etiology of his left hip disorder as a neurogenic claudication secondary to his non-service-connected lumbar stenosis and disc disease, with L2-L3 as the likely level resulting in his current hip pain. Thus, she concluded there was no evidence of any aggravation of the Legg-Calve-Perthes. Moreover, the Board notes that, while the examiner offered an opinion as to whether the Veteran's Legg-Calve-Perthes was subject to a superimposed disease or injury during service that resulted in additional disability, such opinion is irrelevant as she found that it was a developmental disease and not a congenital or developmental defect. The Board affords great probative weight to the August 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. Consequently, based on the August 2021 VA examiner's opinion, the Board finds that the Veteran's left hip disorder, diagnosed as Legg-Calves-Perthes disease, clearly and unmistakably pre-existed his entrance to both periods of active duty and was not aggravated beyond the natural progression therein. Furthermore, while the evidence of record also reflects diagnoses of chronic avascular necrosis and degenerative joint disease of the left hip, the July 2019 VA examiner and December 2010 VA clinician found that are a progression of, or secondary to, Legg-Calves-Perthes disease, respectively. Thus, service connection for a left hip disorder is not warranted. In reaching such determination, the Board acknowledges the Veteran's belief that his left hip disorder is related to his military service. However, while lay persons are competent to provide opinions on some medical issues, the etiology of Legg-Calve-Perthes, and its clinical course and natural progression, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the diagnosis of Legg-Calve-Perthes requires the administration and interpretation of specialized tests, to include imaging, and the etiology of such disease requires knowledge of an internal musculoskeletal process. Likewise, the natural progression of such disease, and any subsequent developments, require similar specialized knowledge. Accordingly, the Veteran's opinions as to the onset, etiology, and progression of his Legg-Calve-Perthes is not competent evidence and, consequently, is afforded no probative weight. Therefore, service connection for a left hip disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a left hip disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.