Citation Nr: 21063828 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-40 067 DATE: October 18, 2021 ORDER Entitlement to service connection for left hip status post labral repair, to include as secondary to service-connected left ankle disability is granted. FINDING OF FACT The Veteran's left hip disability, claimed as status post labral repair, is proximately due to his service-connected left ankle disability. CONCLUSION OF LAW The criteria for service connection for left hip disability, claimed as status post labral repair, as secondary to service-connected left ankle disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from September 1990 to July 1997. This matter was last before the Board of Veterans' Appeals (Board) in March 2019 when it was remanded to obtain an addendum medical opinion. As the opinion has been obtained, the appeal is ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for left hip status post labral repair, to include as secondary to service-connected left ankle disability The Veteran asserts that his left hip disability is a result of his service-connected left ankle disability. See Substantive Appeal, Veteran's Statement. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present 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 service' - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet .App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In rendering a decision on appeal, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted above, the Board remanded this appeal for an addendum opinion in March 2019. The Board had determined that the previous VA medical examination was insufficient for adjudication as it raised, but did not address, a possible congenital defect, Ehlers-Danlos syndrome, and did not provide a direct service connection opinion. The Board also noted that the positive nexus opinion provided by the Veteran's private physician lacked a rationale. Turning to the medical evidence of record, in May 2019, the Veteran submitted a positive nexus opinion from his private provider, Dr. J.K. of Muir Orthopedic Specialists. He wrote that "in all probability the ankle fracture contributed to the left hip arthritis...The altered gait related to his prior ankle fracture may be contributing to his continued diminished [left hip] function." In May 2020, Dr. J.K. expanded his opinion in response to the negative nexus opinion provided by the VA physician. He opined: I am in receipt of the recent denial of service relatedness of Mr. [REDACTED] left hip injuries and subsequent surgeries. It is my understanding that [the Veteran] had sustained a fracture of his left ankle while in the Marine Core in 1993 and had subsequent surgeries on the ankle to repair the fracture and then to debride the joint about a year later. Following that surgery, he continued to have issues with slight chronic pain and subtle gait abnormality. Subsequently, he developed increasing pain in the left hip without evidence of new injury. He was subsequently found to have a labral tear and early osteoarthritis at the time of arthroscopy in 2016. He unfortunately went on to develop more advanced arthritis and had a subsequent left hip resurfacing procedure in 2017. There were reports issue to the V.A. that [the Veteran] had Ehlers-Danlos Syndrome, a hypermobility syndrome that was likely responsible for his hip and labral pathology and therefore denied any service relatedness to his hip injuries. In speaking with [the Veteran] and reviewing his history, there is no evidence that the patient ever had Ehlers-Danlos Syndrome. He did have a history of bilateral shoulder dislocations due to football injuries in high school with subsequent Bankart repairs and no further dislocations. It is highly unlikely that these were directly related to Ehlers-Danlos Syndrome and he has no other corroborating medical findings to indicate Ehlers-Danlos Syndrome is a problem. It is my feeling that the diagnosis of Ehlers-Danlos Syndrome was made in error and that [the Veteran] had some cumulative trauma to the left hip likely aggravated by his prior left ankle fracture that subsequently led to the development of his hip pain and need for his subsequent surgeries. The VA addendum opinion was obtained in October 2019. As an initial matter, the Board notes that the physician did not address the positive nexus opinion provided by the Veteran's private provider, although he attested that the claims file was reviewed. Regarding the Ehlers-Danlos issue, the VA examiner now stated that he could not definitively diagnose the Veteran with Ehlers-Danlos. However, in providing an opinion regarding whether the Veteran's left hip disability was an additional superimposed disability, the examiner appears to contradict his finding of no Ehlers-Danlos syndrome. He wrote, "current left hip pain is due to left psoas tendonitis, which is a condition known to be associated with hypermobility syndromes and Ehler-Danlos syndrome; he is s/p left hip replacement in 2017; VBMS chart finds left hip ligament tear in 2016, which is also associated with congenital hypermobility syndromes, but not known to be caused or aggravated by service or SC conditions." In other words, the examiner seems to be saying that the Veteran's hip disability is actually due to "hypermobility syndromes and Ehlers-Danlos syndrome" after he concluded that the Veteran was not definitively diagnosed with Ehlers-Danlos syndrome. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Nieves-Rodriguez v. Peake, Vet. App. 295 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). On its face, the October 2019 opinion is inconsistent. Moreover, the examiner did not address the positive nexus opinion by Dr. J.K. For all these reasons, the Board finds that this VA medical opinion is without probative value. The Board finds that the private orthopedic physician's opinion is highly probative as it presents the medical opinion of a competent expert, informed by review of the claims file, and presented with a persuasive discussion of the examiner's rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the probative evidence of record shows that the Veteran's left hip disability was caused by and/or aggravated by his service-connected left ankle disability, thus satisfying the elements of secondary service connection. Hence, service connection on a secondary basis for the Veteran's left hip disability is warranted. 38 C.F.R. § 3.310. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.