Citation Nr: 21066367 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-55 645 DATE: October 29, 2021 ORDER Entitlement to service connection for left hip condition, diagnosed as degenerative joint disease (arthritis), is granted. Entitlement to service connection for right hip condition, diagnosed as degenerative joint disease (arthritis), is granted. FINDINGS OF FACT 1. The Veteran has experienced arthritis pain in his left hip related to degenerative joint disease since his separation from service. 2. The Veteran has experienced arthritis pain in his right hip related to degenerative joint disease since his separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left hip degenerative joint disease (arthritis) are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for right hip degenerative joint disease (arthritis) are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 United States Army from September 1978 to September 1998. In October 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Videoconference Hearing. A transcript of that proceeding will be prepared and associated with the file in the due course of business. SERVICE CONNECTION 1. Entitlement to service connection for left hip condition, diagnosed as degenerative joint disease (arthritis) 2. Entitlement to service connection for a right hip condition, diagnosed as degenerative joint disease (arthritis) 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 granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) includes arthritis. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. In Walker, the Court articulated that entitlement to disability benefits for a chronic disorder listed in 38 C.F.R. § 3.309(a), including arthritis, can be shown by demonstrating a "continuity of symptomatology." Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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 a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). As the Veteran's current bilateral hip arthritis is a qualifying chronic disease subject to 38 C.F.R. § 3.303(b) under the Court's holding in Walker, the Board is now tasked with assessing whether the Veteran's disabilities were chronic in service, or if not, whether such conditions noted in service are otherwise supported by chronicity of symptomatology following discharge from service. As an initial matter, the Veteran has a diagnosis of bilateral hip degenerative joint disease as shown in his VA treatment records, see December 2005 Orthopedic Surgery Consult. Thus, the first element for service connection is met. As to the in-service injury element, the Veteran competently and credibly testified that beginning in 1994 to 1995, he started feeling his hips click while running and that as a Recruiter, he regularly had to do physical training two to three times a day with his soldiers at the various recruiting stations. He further testified that he experienced pain when running and would self-medicate with heat and ice, as his recruiting duty stations were not near military bases or military medical support; see also Substantive Appeal statement. The Board observes that on his retirement physical examination, he checked "Yes" for Swollen and Painful Joints. Accordingly, the Board finds that the probative evidence shows that the Veteran's current bilateral hip arthritis had its onset in service. Turning to the nexus requirement, the Veteran competently and credibly testified that his bilateral hip pain began in service and that he has "always had hip pain from 1998 to the present time." The Board notes that this injury is consistent with circumstances of the Veteran's service and finds his testimony probative. Accordingly, the Board finds that continuity of symptomology is established; thus, the nexus requirement is shown. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). In sum, the probative evidence of record shows that the Veteran's left and right hip degenerative joint disease (arthritis), a chronic disease, began in-service and has continued since then. Thus, the Board finds that service connection is warranted. 38 C.F.R. § 3.303(b). 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.