Citation Nr: 21068550 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-10 896 DATE: November 10, 2021 ORDER Entitlement to service connection for a left hip disability is denied. FINDINGS OF FACT 1. The Appellant's left hip arthritis is not shown to be causally or etiologically related to any disease, injury, or incident in service; arthritis is not shown to have manifested to a compensable degree within one year of active service. 2. The Appellant's left hip arthritis is not shown to be proximately due to or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hip disability have not been met; service connection may not be presumed. 38 U.S.C. §§ 1131, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty in the U.S. Marine Corps from November 2, 1978 to December 19, 1978, with additional prior inactive service. These matters come before the Board of Veteran's Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge; a transcript has been associated with the claims file. In June 2021, the Board remanded the claim for further development. The development has been completed and associated with the claims file, and this matter is now returned to the Board for further appellate review. Entitlement to service connection for a left hip disability The Appellant contends he has a left hip disability (claimed as a "left thigh" condition) that had its onset in service or is otherwise related to his active service. See Form 21-526, August 2012. In the alternative, the Appellant asserts that the claimed left hip disability was caused or aggravated by a low back disability. See, e.g., Brief, received October 2021. However, because the Appellant is not service connected for a low back disability, there can be no service connection for a left hip disability as secondary to a nonservice-connected disability. See 38 C.F.R. § 3.310. A service treatment record dated November 8, 1978, shows the Appellant reported back pain for one year since a pre-service injury to his sciatic nerve falling backwards onto the corner of a table. An impression of a back strain secondary to old injury was recorded. See STR, received May 1979 at p.8. A record dated November 20, 1978, shows the Appellant reported pain shooting up from his hip to his low back, although which hip (right versus left) was not specified, and he reported he was told prior to service that he had irritation of the sciatic nerve. See STRs at p.14 of 22. A provisional diagnosis of scoliosis was noted. See id. A record dated December 8, 1978, shows an X-ray revealed five degrees of scoliosis of the mid-lumbar spine with convexity to the left, otherwise unremarkable. See id. at p.13. A Medical Board narrative dated December 13, 1978, notes that pre-service medical records from 1976 and 1977 were reviewed showing low back treatment, the Appellant reported persistent low back pain radiating into his legs prior to service, the scoliosis shown on X-rays was noted, and he was diagnosed with chronic low back pain, existed prior to enlistment (EPTE), and recommended for separation. See id. at p.6. Post-service, the first record of any left hip complaint is a 2002 private treatment record that shows the Appellant reported left hip pain; left hip arthritis was diagnosed. See Records, received June 2019 at p.3 of 40. A February 2013 private X-ray report for the left hip shows osteoarthritic changes were noted. See Records, received July 2013 at p.3. A November 2013 disability benefits questionnaire (DBQ) prepared by Dr. J.S. shows the Appellant reported a history of left hip, left thigh, and low back pain since the age of 15 that was worsened in service. Dr. J.S. noted a diagnosis of osteoarthritis of the left hip. In a separate November 2013 opinion letter, Dr. J.S. opined that the Appellant's left hip condition was more likely than not related to his complaints in service in 1978, but he provided no rationale for the opinion. Because no rationale is provided, the Board finds the opinion has low probative value. A January 2016 private surgical report from St. Barnabas Medical Center shows the Appellant underwent left hip replacement surgery. See Records, received June 2019 at p.39 of 40. An October 2019 VA examination report shows the examiner noted the history of left hip osteoarthritis shown on X-ray in February 2013, and of left hip replacement surgery in January 2016. See Report 9 of 14 (of same date). The Appellant reported he began experiencing left hip pain in service in November 1978 during physical training. He reported stabbing pain traveled up into his spine, (apparently referencing pain traveling up from his left hip, albeit not entirely clear). X-rays revealed status post total hip replacement. See Report 10 of 14. The examiner opined the left hip disability is less likely than not related to service. The examiner reasoned the service treatment records are silent for any hip complaints. See Report 8 of 14. However, because the November 1978 service treatment record clearly showed a left hip complaint, the Board finds this etiological opinion has low probative value. An October 2020 VA examination report (see separate opinion document) shows the examiner opined that the Appellant's left hip condition is less likely than not caused by his active service, reasoning that the treatment records are inadequate to show chronicity since service. Because the examiner failed to adequately address the complaint of hip pain in November 1978, the Board finds this opinion to have low probative value. Most recently, an August 2021 VA medical opinion was obtained. The examiner opined the Appellant's left hip condition is less likely than not caused by his active service, reasoning that the November 1978 treatment shown in the service records clearly related to his back condition, the Medical Board examination was negative for any left hip condition, post-service there is no record of treatment until 2002, 24 years after service, the 2013 x-rays diagnosed osteoarthritis, a naturally occurring, age-related condition, and the Appellant had bilateral degenerative joint disease (DJD), further suggesting a naturally occurring arthritic condition. The examiner also opined that the total hip replacement in 2016 was a result of the osteoarthritis. At the Board hearing, and again in an October 2021 brief, the Appellant asserted that his claimed left hip disability is secondary to a back condition. However, as noted above, the Appellant is not service connected for any back disability. Having considered all of the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Appellant's left hip condition was caused by his active service. The Board finds the opinion of the August 2021 VA examiner to be the most probative with regard to the etiology of the Appellant's left hip condition. The examiner reviewed the records, noted the Appellant's history outlined above, and provided a detailed rationale for the opinion. It is also consistent with the contemporaneous medical evidence, which shows the Appellant himself reported to his treating physicians in November 1978 that he related his pain at that time to a pre-service back injury and sciatic nerve (not to any in-service left hip injury). As noted by the VA examiner, no left hip condition was found at the Medical Board examination, and none was shown until 24 years after service, which prolonged period without record of complaint weighs heavily against the assertion that the condition had its onset in service or is otherwise related to his active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000). Although the one November 1978 record shows complaint of "hip" pain, it does not state whether it was the left of the right hip, and it was in the context of shooting pain from a documented pre-service back injury. To the extent the Appellant, as a lay person, opines that his left hip condition was caused by his active service, the Board finds the Appellant's opinion to be less probative than the opinion of the August 2021 VA examiner based on the VA examiner's medical education and experience, and because the VA examiner provided a detailed rationale for his opinion. While the Appellant is certainly competent to report symptoms capable of lay observation, such as experiencing pain in service, his complaints in service were found, after x-rays and consultation with orthopedics and a Medical Board proceeding prior to his discharge, to be back related, and no left hip condition was found. The Board finds these contemporaneous medical records to be particularly probative. (continued next page) In summary, the Board concludes that service connection for a left hip disability is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Juliano, Janee L. 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.