Citation Nr: 21069798 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 20-28 396 DATE: November 19, 2021 ORDER Entitlement to service connection for a left hip condition, as secondary to service-connected lower extremity disabilities, is granted. Entitlement to service connection for a right hip condition, as secondary to service-connected lower extremity disabilities, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's bilateral hip condition is causally related to her service-connected lower extremity disabilities. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a left hip condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for establishing service connection for a right hip condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1987 to August 1989. This matter is on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for left and right hip conditions. The Veteran did not submit an explicit notice of disagreement with the October 2017 rating decision. However, in March 2018, she requested reconsideration of the October 2017 rating decision, and she provided updated VA treatment records relevant to her claim. Additionally, the RO obtained a new opinion. In a June 2018 decision, the RO confirmed and continued the denial. In October 2018, the Veteran submitted a private hip conditions examination report, and the RO obtained a new VA examination in December 2018. In a December 2018 rating decision, the RO confirmed and continued the denial, and the Veteran timely perfected an appeal. See January 2019 Notice of Disagreement; February 2020 Statement of the Case; June 2020 VA Form 9. Although the Veteran did not submit an explicit notice of disagreement with the October 2017 rating decision, the RO received new and material evidence within one year of the October 2017 rating decision. The Court of Appeals for the Federal Circuit (Federal Circuit) has held that 38 C.F.R. § 3.156 (b) requires that the VA treat new and material evidence received within one year of a rating decision as if it was filed in connection with the pending claim. Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). As new and material evidence was received within the year following the October 2017 rating decision that was not previously considered by VA, the October 2017 rating decision did not become final. 38 C.F.R. § 3.156 (b); Bond, 659 F.3d at 1362. Therefore, the Board finds that the issues are properly characterized as appeals of the October 2017 rating decision. In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The transcript is not yet available. However, this appeal meets the criteria for VA's one-touch initiative program. To provide an immediate and favorable response to the Veteran after her hearing, a transcript of the hearing will be added to the Veteran's file at a later date. Service Connection The Veteran contends that chronic pain and instability in her bilateral ankles, lower legs, and feet caused gait changes and leg length discrepancy, which caused or aggravated her bilateral hip condition. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § §§ 3.303, 3.310. Secondary service connection is provided for disability that is caused by a service-connected disease or disability; or that is aggravated by a service-connected disease or disability. 38 C.F.R. § § 3.310 (a), (b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Facts and Analysis In the present case, the Veteran has been diagnosed with bilateral hip osteoarthritis. See July 2017 VA Examination Report. Thus, there is evidence of a current disability. Additionally, the Veteran has numerous service-connected lower extremity disabilities, including right ankle sural neuroma; recurrent stress fractures, shin splints, and right ankle impairment; recurrent stress fractures, shin splints, and left ankle impairment; tailor's bunion left fifth metatarsal; right third toe hammer toe deformity; left knee patellofemoral pain syndrome; and right knee patellofemoral pain syndrome. The question then becomes whether a nexus, or relationship, between the Veteran's current disability and the Veteran's service-connected disability has been shown. The Veteran submitted several medical articles discussing a relationship between chronic knee and ankle instability and her hip condition. An August 2018 VA treatment record shows that the Veteran reported a flare up of left hip symptoms. Her treating physician noted that the Veteran's bilateral hip symptoms "may be aggravated due to long term compensation for ongoing [bilateral] knee and ankle/foot issues." Another August 2018 VA treatment record includes a note that the degenerative changes in the Veteran's left hip "may have been accelerated as a result of abnormal gait kinetics resulting from ipsilateral pathology in her ankle and knee." In a September 2018 private orthopedic report, Dr. B.B.F. opined that there was a causal link between the Veteran's bilateral hip osteoarthritis and her foot and ankle injuries. Dr. B.B.F. noted that she reviewed numerous articles submitted by the Veteran that supports a causal link. She also indicated that she reviewed an in-service bone scan from 1988 showing "some stress reaction in her acetabular rims bilaterally as well as in the pubic ramus." She further noted that prior trauma, such as that seen on the 1988 bone scan, can cause the Veteran's bilateral hip osteoarthritis. Dr. B.B.F. also noted that the Veteran currently had femoral acetabular impingement, as well as bilateral trochanteric bursitis that could be related to leg length discrepancy. The Veteran was afforded a VA examination in July 2017. The examiner opined that the Veteran's bilateral hip osteoarthritis was less likely as not caused or aggravated by her service-connected foot, ankle, and knee disabilities and more likely secondary to age related changes. The examiner cited to medical studies showing that osteoarthritis is common in aging people and that an injury to one lower extremity would not cause injury to an opposite, uninjured limb in the absence of significant leg length discrepancy. See also October 2017 Addendum Opinion. Finally, during the November 2021 hearing, the Veteran testified to hip symptoms both during service and to the present time that have continued to worsen. There is nothing of record to call into question the credibility of the Veteran's sworn testimony. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it is not clear whether the treating physicians reviewed the Veteran's claims file. However, the record reflects that they were familiar with the Veteran's medical history and that they did not rely upon any assumptions or information that would be inconsistent with the evidence in the claims file. Specifically, the physicians were equally aware of the Veteran's other risk factors for developing hip osteoarthritis, but still opined that the Veteran's bilateral hip condition was related to her service-connected knee, ankle, and foot disabilities. Thus, the opinions remain probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The July 2017 VA examiner reviewed the claims file and provided a rationale for the negative nexus opinion but did not explain why aging would be more likely to cause the Veteran's bilateral hip condition. Nor did the examiner explain whether an injury to one lower extremity could cause injury to an opposite, injured limb, such as in the Veteran's case. That said, the Board finds no adequate reason to favor the negative opinion over the positive opinions that are favorable to the Veteran's claim. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the positive and the negative opinions put the evidence in relative equipoise as to whether the Veteran's bilateral hip osteoarthritis is a related to her service-connected knee, ankle, and foot disabilities. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral hip osteoarthritis is warranted, as secondary to service-connected knee ankle, and foot disabilities. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.