Citation Nr: 21069501 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-40 243 DATE: November 18, 2021 ORDER Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a right hip disorder, to include as secondary to a left hip disorder, is denied. Entitlement to service connection for a low back disorder, to include as secondary to a left hip disorder, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a left hip disorder, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder due to a left hip disorder, is denied. FINDINGS OF FACT 1. The record reflects that the Veteran's left hip disorder existed to prior to active military service, and the most probative evidence does not reach the level of equipoise as to whether the disorder increased in severity during service. 2. As the Veteran's left hip disorder has herein been found not service-connected, his other claims on appeal may not be granted on a secondary basis, and he has not asserted any other theory of entitlement on which his claims may be considered. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disorder are not met. 38 U.S.C. §§ 1131, 1132, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. 2. The criteria for entitlement to service connection for a right hip disorder, to include as secondary to a left hip disorder, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to service connection for a low back disorder, to include as secondary to a left hip disorder, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a left hip disorder, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder secondary to a left hip disorder, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1987 to October 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in February 2021. A transcript of the hearing is associated with the claims file. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every person employed in the active military, naval, air, or space service during peacetime for six months or more 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 the examination, acceptance and enrollment, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1132. If the presumption of soundness does not attach, the claim may still be subject to the presumption of aggravation under section 1153. A preexisting injury or disease will be considered to have been aggravated by active military, naval, air, or space service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. The Veteran bears the initial burden of establishing a permanent worsening of the disability during service to an equipoise standard. Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, may not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the evidence establishes that a pre-existing disability worsened during a period of qualifying service, then the presumption of aggravation attaches. To rebut the presumption, VA must show by clear and unmistakable evidence that worsening is due to the natural progress of the disability. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). 1. Entitlement to service connection for a left hip disorder The Board finds that the most probative evidence establishes that the left hip disorder preexisted military service. However, the most probative evidence does not reach the level of equipoise as to whether the left hip disorder worsened during service. Therefore, the claim must be denied. Initially, the Board notes that the Veteran served for a period of less than six months during peacetime. Therefore, he does not meet the minimum statutory threshold required for the presumption of soundness to attach. 38 U.S.C. § 1132. Thus, the first questions for the Board are (1) whether the left hip disorder existed prior to active service and (2) whether it increased in severity during active service. Turning to the evidence, the Veteran was examined for enlistment into service in April 1987. The examination was negative for any reports or findings of a left hip disorder. The Board notes that the Veteran checked "yes" for a history of leg cramps and broken bones on the enlistment medical history, but crossed out the selection, chose "no", and initialed it. The Veteran appeared for basic training in September 1987. On September 4, a clinician performed a recruit screening examination, reviewed the entrance exam, and found that "all significant defects, if any, have been evaluated and have been determined to be non-disqualifying." On September 10, 1987, the Veteran was seen after complaining of left hip pain. A military clinician performed a straight leg raise test to 80 degrees and found tenderness on active extension and flexion of the hip. However, radiographic imaging was negative for any trauma or abnormalities of the left hip. The clinician requested an orthopedic consultation and prescribed motrin and light duty. An orthopedic consultation the next day diagnosed a left hip dislocation existing prior to enlistment. The clinician stated that the Veteran would need a medical board evaluation due to the preexisting injury. The Veteran again reported hip pain on September 18, 1987. He stated that he had been taken motrin without relief. He further reported left hip pain on September 22, 1987. The Veteran underwent a medical board evaluation on September 29, 1987. The board members, Dr. E.B. and Dr. D.P., noted that the Veteran was initially examined on September 10, 1987, for a complaint of left hip pain, and he had indicated an inability to march, run, or perform physical training. The members noted "significant medical history prior to enlistment as related by the patient revealed he had dislocated his left hip. There was no recent history of trauma since arrival at Recruit Training Command." The doctors reviewed the Veteran's left hip history since arriving at training, and found that the present condition substantiated the Veteran's inability to run, march, exercise, stand for prolonged periods of time, perform physical training or squat. Based on the medical condition, the inability of the Veteran to perform recruit training, past history, and current symptomatology, the medical board recommended that the Veteran be separated from the Navy. The members found that the Veteran does not and did not meet the minimum physical standards for enlistment, and stated that it was the opinion of the medical board that the disqualifying medical condition existed prior to service. The medical board concluded that the condition was neither incurred in nor aggravated by military service. The Veteran was advised of the opportunity to submit a statement in rebuttal, but declined to do so. He completed a Statement of Awareness and Request for Waiver of Privileges in which he acknowledged that he was being discharged for erroneous enlistment, waived the right to submit a statement or consult with counsel, and affirmed that he did not object to the discharge. The Veteran was discharged for erroneous enlistment in October 1987. The Board finds that such information is sufficient to show the pre-existence of a left hip disability. Clear and unmistakable evidence of preexistence is not required because the presumption of soundness is not applicable. See 38 U.S.C. § 1132. In finding preexistence, the Board attaches much importance to the medical board report. The Veteran was evaluated by two physicians, who agreed that the Veteran had a preexisting left hip dislocation prior to service. The physicians based their findings on the Veteran's own lay reports of a pre-existing injury, and on their examination of the Veteran, including radiographic imaging testing. The Veteran was advised of the medical board's conclusions, but declined to submit a statement in rebuttal and did not object to discharge. Thus, the Board finds that the most probative evidence shows pre-existence of a left hip disability prior to service. The Board has considered the Veteran's assertions that he did not have a left hip disability prior to service. However, the Board finds that his statements lack credibility. The Supreme Court of the United States has held that a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony. White v. Illinois, 502 U.S. 346, 356 (1992). As the Veteran's reports that he had a pre-existing left hip injury to the medical board were proffered in the course of obtaining medical services, the Board affords them greater probative weight than the statements made during the course of his compensation claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board also finds that the conclusions of the medical board are more probative than the Veteran's reports of lay history because they were made proximate to the events in question. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than lay history as reported by a veteran). Moreover, the Veteran acknowledged the findings of the medical board and the outcome that he was being discharged for erroneous enlistment, but nevertheless declined to submit a statement in rebuttal, consult with counsel, or otherwise challenge the medical board's findings. If the Veteran had, in fact, suffered his left hip injury during service, it is reasonable to assume that he would have disputed the medical board's findings at that time, rather than waiting until more than 33 years after the fact. Thus, the Veteran's statements and behavior at the time of the medical board are inconsistent with his later assertions that he suffered a left hip injury in service. Caluza v. Brown, 7 Vet. App. 496, 511 (1995). The Board is also cognizant that the record reflects that the Veteran did not attribute his left hip pain to military service until after filing a claim for VA benefits, despite seeking treatment for a left hip disorder prior to that time. For these reasons, the Board finds that the Veteran's lay evidence lacks credibility and is not entitled to probative weight. The Board has also considered the lay evidence of the Veteran's friends and family. However, the question of whether a left hip disorder pre-existed military service is a medical determination that requires complex knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board affords higher probative weight to the competent medical evidence. Therefore, as the preexistence of the left hip disability has been established, the burden shifts to the Veteran to show by an equipoise standard that his disorder was aggravated by service. See Donnellan, 24 Vet. App. at 173-75. Following military service, the next report of hip pain in the record is when the Veteran visited a private orthopedist in September 2011. He reported that he was hit by a car in 2003 or 2004, and had on and off neck and back pain since that time. He also reported left hip and groin pain with weightbearing and walking. He did not report that his left hip symptoms began during military service, or report any history of left hip pain prior to 2003. He continued to receive treatment from the private orthopedist through 2013, but did not report left hip symptoms beginning during military service. Records from Carolinas Medical Center show that the Veteran had a total left hip replacement in February 2014. He was diagnosed with degenerative joint disease of the hips. However, at no point during his care did the Veteran or his doctors relate any left hip symptoms to military service. The Veteran filed a claim for service connection for his left hip in April 2014. In May 2014, he submitted a lay statement from C.M., who stated, among other things, that the Veteran endured extreme pain due to bone growth around the implant after the surgery in February 2014. In February 2015, the Veteran submitted lay statements from his friends T.G. and R.G., and his mother and sister. T.G. stated that he had known the Veteran for 35 years, and that the Veteran had been active and athletic prior to entering the military. He said that "after a short stint in the Navy, [the Veteran] said he dislocated his hip." He indicated that the Veteran returned to work but was never the same. R.G. commented that he knew the Veteran growing up, and that the Veteran could dunk a basketball no problem when they played sports together. However, after service, R.G. stated that the Veteran could no longer dunk, and that the Veteran has not been the same physically since dislocating his hip. The Veteran's mother stated that "after going in the military in 1987, he was injured and had to come out." She contended that the Veteran had complications and stayed in pain, but continued to work as much as he could, but his condition got increasingly worse over the years. The Veteran's sister asserted, among other things, that the Veteran "enlisted in the Navy in 1987 and had an unfortunate injury to his hip, which limited him from participating in drills and activities." She contended that he didn't want to leave the military, but unfortunately he had to be discharged because of being in so much left hip pain. The record reflects a VA medical opinion in April 2015. The examiner reviewed the claims file and opined that review of service medical records showed no evidence of injury or a trauma event affecting the left hip. He noted that a medical evaluation found that the Veteran had dislocated his left hip prior to enlistment. He found that "while the individual may have had a temporary exacerbation (pain) of his left hip condition, there is no evidence the left hip was permanently aggravated beyond its natural progression by the individuals brief military time." The Veteran submitted a private medical opinion from Dr. T.A. dated June 2015. He reported that he had treated the Veteran since December 2014, and checked a box indicating that he had reviewed military service treatment records, VA medical records, and private medical records. He found that "according to all provided records and patient history along with my evaluation/examination no indication of a hip injury/instability was reported. In my clinical opinion, there was no pre-existing hip disability prior to active military service." He also found that the Veteran's left hip disability was directly related to an injury that occurred during military service. However, he did not discuss the medical board evaluation that found that the left hip disorder had both pre-existed service and was not aggravated by service, or give any explanation for rejecting such evidence. The Veteran, his friend C.W., and his mother testified before a decision review officer in September 2016. The Veteran asserted, among other things, that he did not have a hip injury prior to service and that he went through rigorous training for the first week, but handled it fine until September 10. He asserted that he had a "freak accident" on that date and could not put much weight on it, and so decided to get it checked out. He reported continued left hip pain after service. C.W. and the Veteran's mother described their observations of the Veteran's symptoms and the symptoms' impact on his daily activities. The Veteran appeared for a VA examination in June 2017. He reported, among other things, that he dislocated his hip during drills while on active duty and that his hip pain became bothersome at least 10 years prior to his left hip arthroplasty in 2014. After performing a physical evaluation, the examiner, Dr. D.I., opined that it is less likely than not that any left hip disorder was incurred in or caused by military service. As rationale, he explained that imaging of the left hip was negative and there was no documentation of trauma or injury to the left hip during the Veteran's military service. He cited the Veteran's reports to the medical board that there was a preexisting left hip dislocation prior to service, and noted that the Veteran currently stated that he dislocated his hip during service without any documentation of such an injury. He emphasized that the left hip imaging obtained after the Veteran complained of pain in service was documented as negative for dislocation, fracture, or acute pathology. He agreed with the medical board's conclusion that the left hip disorder was neither incurred in nor aggravated by military service. Dr. D.I. noted that private medical records did not relate the Veteran's symptoms to service, but indicated that the symptoms onset after a motor vehicle accident in 2003. Based on his examination, he concluded that the Veteran has systemic degenerative disease as manifested by multisite arthralgia. The Veteran had another surgery on his left hip performed by physicians with Novant Health in September 2017. The records do not show that the Veteran reported a history of left hip symptoms dating to military service to the physicians at Novant Health or that they linked his left hip disorder to military service. The Veteran testified before the Board in February 2021. He asserted, among other things, that he did not have any left hip disorders prior to military service and that he experienced a training accident 10 days into service that resulted in his hip symptoms. He asserted that he had continued left hip pain after military service. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether the Veteran's preexisting left hip disability increased in severity during service. Therefore, the presumption of aggravation does not attach, and the element of an in-service incurrence has not been met. 38 C.F.R. § 3.303. Accordingly, service connection must be denied. In reaching this conclusion, the Board holds that the medical board findings of Dr. E.B. and Dr. D.P. are entitled to significant probative weight. They considered the Veteran's medical history since arriving at basic training, and previous evaluations, including radiographic imaging testing that was negative for any acute pathology. They also specifically found that the left hip condition was neither incurred in nor aggravated by military service. As the medical board provided a reasoned opinion consistent with their review of the Veteran's medical history, his lay statements, and physical examinations, their findings are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also notes that the June 2017 VA examiner found that it is less likely than not that any left hip disorder is incurred in or caused by military service. As rationale, he cited to the medical board findings that the left hip was neither incurred in nor aggravated by service, noted that imaging of the left hip was negative during service, and further noted that there was no documentation of trauma or injury to the left hip in service, despite the reports of pain. See Hunt, 1 Vet. App. at 297 ("temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened.") He further concluded that the Veteran had systemic degenerative joint disease as manifested by arthralgia, and that there is no evidence of permanent aggravation of the preexisting condition beyond its natural progression during the brief period of military service. The Board finds that the June 2017 examiner's opinion is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The April 2015 VA examiner found that, while the Veteran reported pain during service, it was a temporary exacerbation of a preexisting disability. He noted that the evidence did not show a permanent aggravation by the Veteran's brief military time. The Board likewise affords his opinion significant probative weight. Id. The Board has considered the findings of Dr. T.A. However, the Board finds that his opinion is conclusory and does not address relevant evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a mere conclusion by a medical provider is insufficient to allow the Board to make an informed decision as to what weight to assign to the provider's opinion). Specifically, Dr. T.A. indicated that he reviewed all military medical records, but did not address the findings of the medical board at all in rendering his opinion or provide a reason as to why he rejected their findings. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that the thoroughness and detail of a medical opinion is to be considered when evaluating probative weight). As such, the Board finds that Dr. T.A.'s opinion is entitled to lesser probative weight. See D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board has considered lay evidence provided by the Veteran, including contentions that he suffered a "freak accident" and that he dislocated his hip during service. However, the Board again finds that his statements lack credibility. Initially, his statements that he injured his left hip during service are not consistent with his own reports to the medical board or with service treatment records, which show reports of pain, but no accident, trauma, or dislocation of the left hip. See Caluza, 7 Vet. App. at 511. As previously indicated, the contemporary documents are worth greater probative weight than the Veteran's lay history. See Curry, 7 Vet. App. at 68. Also, the Board notes that the Veteran told the June 2017 examiner that he dislocated his hip during service, which is contradicted by service medical records, including objective radiographic testing. The Board again notes that the Veteran did not report aggravating his left hip disorder in military service until after filing a claim for service connection, despite seeking treatment for left hip pain prior to that time, which tends to weigh against continuous left hip symptoms since military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has further considered the lay testimony of the Veteran's friends and family, but affords significant probative weight to the competent medical evidence, including the medical board findings that were based, in part, on the Veteran's contemporary lay reports confirming a preexisting left hip dislocation. In sum, the Board finds that the Veteran's left hip disorder preexisted military service and the most probative evidence does not reach the level of equipoise that it was aggravated by military service. Therefore, the claim of service connection for a left hip disorder must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."). 2. Entitlement to service connection for a right hip disorder, to include as secondary to a left hip disorder 3. Entitlement to service connection for a low back disorder, to include as secondary to a left hip disorder 4. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a left hip disorder 5. Entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder due to a left hip disorder As the Veteran's left hip disorder has been found herein to be not service-connected, the claims of service connection on a secondary basis for a right hip disorder, low back disorder, acquired psychiatric disorder, and erectile dysfunction may not be granted on that basis. 38 C.F.R. § 3.310. The Veteran has not asserted any other theory of entitlement on which service connection may be granted for these disorders. Accordingly, the claims of service connection must be denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.