Citation Nr: 21067253 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-21 763 DATE: November 3, 2021 ORDER Service connection for a right hip disability is denied. REMANDED The issue of service connection for a right knee disability is remanded. FINDING OF FACT The Veteran's right hip disability did not have its onset during service and is not otherwise related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision. The Veteran testified before the Board at a hearing in September 2020. A transcript of the hearing has been associated with the claims file. Additionally, following the June 2019 statement of the case, the Veteran elected to opt into the AMA appeals process in July 2019 for the issue of a rating in excess of 10 percent for degenerative arthritis of the left knee status post meniscal tear and cartilage restoration surgery. Therefore, the only remaining issues before the Board in the legacy appeals system are the issues of service connection for a right knee disability and a right hip disability. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Right Hip Disability The Board has reviewed the evidence of record and finds that service connection is not warranted for a right hip disability. During the September 2020 Board hearing, the Veteran provided testimony regarding his right hip disability. He contends that his right hip disability is caused by his service-connected left knee disability. He stated that his treating VA physicians have told him that his problems with his right hip are caused by his altered gait, which is caused by his service-connected left knee disability. The Veteran stated that although his right hip problems have been acknowledged by his treating VA physicians, he has not been provided with a specific diagnosis. The Board has considered the lay statements of the Veteran. Although the Veteran is competent to report his observations and to opine as to some medical matters, his contention that his right hip disability is caused by his service-connected left knee disability relates to an internal medical process, which extends beyond an immediately observable cause-and-effect relationship and is the type of evidence that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's service treatment records (STRs) do not reflect complaints, treatment, or evidence of a right hip disability. During his September 1999 entrance examination and June 2003 separation examination, there are also no indications of right hip disability. In October 2015, 12 years after discharge from service, the first evidence of a right hip disability is noted in his VA 21-525b Veteran's Supplemental Claim for Compensation Form. In a February 2016 VA examination regarding the Veteran's bilateral hips, the Veteran was documented as having no current bilateral hip disability. He was documented as having mild degenerative joint disease of the left hip based on x-ray findings. The examiner noted that the Veteran had a history of hip pain but noted no pain upon examination. The examiner also noted that the Veteran did not report any functional loss or functional impairment due to his right hip. The examiner opined that it is less likely than not a bilateral hip disability is caused by his service-connected left knee disability. The examiner explained that the left knee anterior cruciate ligament (ACL) repair did not cause significant alteration of the gait that would result in undue stress on the hips causing deterioration of the hips and significant degenerative joint disease on x-ray. In a July 2018 VA examination regarding the Veteran's left hip, the Veteran was diagnosed as having degenerative arthritis of the left hip. The Veteran reported that he developed progressive left hip pain over the past five years. The examiner also determined that the right hip was normal with no pain upon examination and no known pathology. The examiner opined that it is at least as likely as not that the Veteran's left hip disability is caused by his service-connected left knee disability. The examiner explained that the Veteran's left ACL knee injury, which has required surgery on two occasions, is likely to have altered his gait resulting in osteoarthritis of the left hip. Further, the examiner opined that the right hip pain experienced by the Veteran is likely due to his service-connected spine disability with sciatica. Subsequently, service connection for a left hip disability was granted in a December 2018 rating decision. The Board notes that a review of the medical treatment records does not indicate any complaints, evidence, or treatment regarding a right hip disability. The Board finds that the probative evidence of record demonstrates that service connection is not warranted for the Veteran's right hip disability. Regarding direct service connection, the evidence does not indicate that during service the Veteran experienced a right hip injury, complained of symptoms related to the right hip, or was diagnosed with a right hip disability. There are also no indications of a right hip disability upon separation from service. Moreover, the Veteran does not contend that his right hip disability was incurred in or caused by service. Rather, he contends only that his right hip disability is caused by his service-connected left knee disability. The Board finds that the probative evidence does not demonstrate a nexus relationship between service and the Veteran's right hip disability. Therefore, a finding of direct service connection for the Veteran's right hip disability is not warranted. Regarding secondary service connection, the February 2016 VA examiner specifically determined that the Veteran does not have a diagnosis of a right hip disability and that there was no right hip pain upon examination. The February 2016 VA examiner also found that there was no nexus relationship between the Veteran's right hip disability and his service-connected left knee disability, and the opinion provided is supported by a well-reasoned medical rationale. Further, the July 2018 VA examiner also specifically determined that the Veteran does not have a diagnosis of a right hip disability and that there was no right hip pain upon examination. The July 2018 VA examiner also determined that the Veteran's complaints of right hip pain are likely manifestations of his service-connected spine disability. The Board finds that the probative evidence does not demonstrate a nexus relationship any right hip disability and the service-connected left knee disability. Therefore, a finding of service connection for a right hip disability secondary to the service-connected left knee disability is not warranted. Additionally, although the VA examiners did not diagnose a present right hip disability, the Federal Circuit has held that a diagnosis is not required to meet the current disability requirement because pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). However, the February 2016 VA examiner specifically noted that the Veteran did not report any functional loss or functional impairment due to his right hip disability. Thus, the Board finds that the finding in Saunders is not applicable. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a right hip disability. Therefore, the appeal is denied. REASONS FOR REMAND The Board finds that further development is necessary regarding the issue of service connection for a right knee disability. The Veteran contends he experiences intermittent right knee physical limitations. Although right knee disability has not been demonstrated on medical inspection, since the Veteran is competent to report his symptoms, and the only opinion discussing the right knee appears to use language concerning hip impairment, another evaluation is indicated as set out below. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any right knee disability. The claims folder should be made available to and be reviewed by the examiner. The examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that any right knee disability, is proximately due to his service-connected left knee disability? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions as to his right knee problems/symptoms. A rationale for all opinions is to be provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.