Citation Nr: 21067208 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-15 733 DATE: November 3, 2021 ORDER Service connection for a left hip disability is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his left hip disability it etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to September 1966. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. In June 2020, the Board of Veterans Appeals (Board) remanded this issue for further development. After the requested development was completed, the Veteran was provided with a Supplemental Statement of the Case (SSOC) in August 2021. In response to that SSOC, the Veteran submitted a new VA Form 9 substantive appeal form requesting a hearing before a VLJ in September 2021. It is unclear if the Veteran submitted this new VA Form 9 because he believed it was necessary to continue the appeal in this case or if he believed that he needed to begin a new appeal entirely. In any event, his appeal was automatically returned to the Board following the readjudication. (The completion of this form does not affect the continuation of his appeal.) On the September 2021 VA Form 9, the Veteran requested a hearing before a VLJ. Again, it is unclear from the record if the Veteran believed that he was filing a new appeal and thus needed to request a new hearing. However, the matter currently on appeal before the Board in this appeal is a continuation of the matter that was previously before the Board in June 2020. As discussed above, the Veteran has already had a hearing as part of this continuing appeal. VA regulations only permit a single hearing following each notice of disagreement (NOD) filed by a claimant, absent a showing of good cause why an additional hearing is necessary. 38 U.S.C. §§ 7102, 7105(a), 7107; 38 C.F.R. §§ 20.700(a), 20.703. Here, the Veteran has not submitted any cause or explanation as to why an additional hearing should be granted. Further, and most significantly, this appeal is being granted in full. Thus, no harm results from the Board's adjudication of this appeal at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Service Connection Left Hip Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. 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). When a question is raised as to whether a particular disability claimed by a veteran preexisted service, VA law provides that 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 evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In a case where there is no preexisting condition noted upon entry into service, a veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). With regard to the existence of a preexisting condition, to be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). A preexisting injury or disease will have been aggravated by active duty where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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(b). This burden of proof must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). It is undisputed that the Veteran had a preexisting left lower leg disability prior to service. However, the evidence of record indicates that there is a question as to whether that preexisting left lower leg disability also extended to his left hip. Significantly, at his August 1965 entrance examination, he reported that prior to service he was in a car accident that injured his hip and back. However, the examination report does not specify which hip was injured, nor does it note any diagnosed hip condition. Then, at a March 2021 VA examination, the examiner determined that there was no evidence in the record to support that the Veteran had a preexisting hip condition prior to his service. See March 2021 C&P Exam. As there is conflicting evidence as to whether the Veteran's left hip disability preexisted his service, it cannot be said that the evidence is "undebatable." Thus, VA has not met its burden of demonstrating that there is clear and unmistakable evidence showing that his left hip disability existed prior to his service. Thus, the presumption has not been rebutted, and he is entitled to the presumption of soundness as to his left hip. The Veteran contends that his left hip disability was caused by his service. VA treatment records show that he has a current diagnosis of left hip arthritis. However, his service treatment records are silent for any complaints of, treatment for, or diagnoses of a left hip condition. At the October 2019 hearing, the Veteran testified that he has had symptoms of a left hip disability since he separated from service. Unfortunately, his testimony regarding the onset and etiology of his left hip disability is unclear and conflicts with other evidence in the record. He testified that he injured his left hip in service and was treated for this injury in service. However, he has not provided any details of this injury, and, as noted above, there is no record that he received treatment for a left hip injury during service. However, the Board also notes that his service treatment records show that he sought treatment for left leg pain and swelling multiple times. Thus, to address adequately his contentions, and to comply with VA's duty to assist, this matter was remanded to obtain a VA examination. Multiple attempts were made to provide the Veteran with a VA examination. He reported for examinations in February 2021, March 2021, June 2021, and September 2021. Unfortunately, due to his advanced dementia, a complete examination could not be performed at any of those appointments. Significant effort has been made by both the Veteran and VA to develop the evidentiary record in this matter in order to resolve the uncertainties regarding the onset and etiology of his left hip disability. Given the previous unfruitful examination attempts, the Board finds that there is no indication that an additional remand would result in the requested development. Thus, the Board must decide this appeal based on the record as it currently stands. Although these symptoms from service cannot, with medical certainty, be attributed to the Veteran's current condition, when thoroughly considering his accounts of his symptoms during and after service, as well as his diagnosed left hip arthritis, the evidence raises a reasonable doubt as to the initial onset of his left hip disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his left hip disability is etiologically related to his service. Accordingly, service connection for a left hip disability is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, Associate 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.