Citation Nr: 21065664 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-09 777 DATE: October 27, 2021 ORDER Entitlement to service connection for a right hip disability is denied. FINDING OF FACT The Veteran's right hip disability was not manifest in service, was not manifest within one year of separation and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right hip disability, to include as secondary to a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131 (2012) 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 to December 1986 and from March 1995 to February 2003 with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In June 2020, the Board remanded this issue for additional development. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background The Veteran's service treatment records are negative for complaints or treatments related to a right knee disability. However, the Veteran was involved in a December 2010 motor vehicle accident. The Veteran testified at her March 2020 Board hearing that she has a current right hip disability that is secondary to her service-connected left hip disability. Notably, the Veteran underwent a VA examination in January 2016. The examiner noted that while the service treatment records demonstrate that the Veteran presented with left hip pain after the December 2010 motor vehicle accident where the Veteran was hit by a car on her left side, there were no complaints related to the right hip. The examiner noted that despite the minimally decreased range of motion, there was no symptom complex or radiographic findings of any past or currently diagnosable right hip condition. However, on the examination, the Veteran reported complaints of right hip pain. Per the June 2020 Board remand instructions, the Veteran underwent a VA examination in October 2020. The examiner noted that the Veteran had a diagnosis of degenerative arthritis of both hips. The onset of the left hip disability was 2010 while the onset of the right hip disability was in 2019. The examiner opined that it was less likely than not that the Veteran's right hip disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner also opined that it was less likely than not that the Veteran's right hip disability was caused or aggravated by her service-connected left hip disability. The examiner noted that the Veteran's right hip pain and the in-service motor vehicle accident were not medically related. The hip pain was a separate entity entirely from the motor vehicle accident and a review of the medical literature failed to demonstrate a causal relationship. The examiner also found that the Veteran's right hip disability was not aggravated beyond its natural progression by the service-connected left hip disability. The examiner noted that the injury at best was superficial and that the complaints were out of proportion with the physical findings on examination. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a right hip disability is not warranted. As there is a current right hip disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disabilities are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, service connection for arthritis on a presumptive basis is not warranted as the record does not show evidence of arthritis within one year of the Veteran's separation from active duty. To the extent that the Veteran is asserting that she experienced continuing symptoms of a right hip disability thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a right hip disability until many years after service and there was a significant period between her service and her post-service complaints where the medical record was silent for complaints of a right hip disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board again notes that while the Veteran injured her left hip in a December 2010 motor vehicle accident, the Veteran's service treatment records are negative for complaints or treatments of a right hip disability and her separation examination was also negative for right hip disability complaints or treatments. Furthermore, the only medical opinions addressing the etiology of the right hip disability weigh against the claim. As noted above, the October 2020 VA examiner indicated that it was less likely than not that the Veteran's right hip disability was incurred in or caused by the claimed in-service event, injury or illness. Further, there is also no competent evidence or opinion even suggesting that there exists a medical nexus between current right hip disability and the Veteran's service and neither the Veteran nor her representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed right hip disability, does not demonstrate that the Veteran's right hip disability is related to the Veteran's service. Finally, the Veteran is also claiming service connection for a right hip disability as secondary to her service-connected left hip disability. As noted above, service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). However, the Board finds that the weight of the evidence is against a finding that current right hip disability was related to service or caused or aggravated by a service-connected disability. Again, the only medical opinions addressing the etiology of the right hip disability on a secondary basis weigh against the claim as the October 2020 VA examiner indicated that the Veteran's right hip disability less likely than not as due to or aggravated by her service-connected left hip disability. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right hip disability is not warranted on a direct or secondary basis. The Board notes the Veteran's contentions regarding the etiology of her claimed right hip disability. To the extent that the Veteran herself contends that a medical relationship exists between her claimed right hip disability and service, the Board acknowledges that the Veteran is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a right hip disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and her representative do not have the medical expertise to provide an opinion regarding the claimed right hip disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationale in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a right hip disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.