Citation Nr: 21073922 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 13-18 084 DATE: December 13, 2021 ORDER Service connection for a right hip disorder is denied. FINDING OF FACT The Veteran's right hip condition did not have its onset in service or within one year of service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right hip condition have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 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 November 1959 to February 1962 with additional Reserve service. The case is on appeal from an August 2010 rating decision. In October 2017, the Veteran testified at a Board hearing. Most recently, in an April 2020 decision, the Board denied service connection for a right hip disorder. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties to the appeal entered into a July 2021 Joint Motion for Remand (JMR) to remand the claim to the Board. In a July 2021 Order, the Court granted the JMR. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a right hip disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of 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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In addition, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for a right hip condition. In this regard, during an October 2012 RO hearing, the Veteran reported that another soldier caused him to fall while skiing and that he twisted and pulled his right hip. He also reported being put on light duty as a result of this fall for five or six months. Initially, the Board finds the current disability requirement is established. A September 2018 VA examination reflects diagnosis of degenerative arthritis of the right hip. The evidence of record shows the occurrence of an in-service injury. The Veteran's service treatment records (STRs) reflect that in March 1961, he fell while skiing and injured his left knee. Although there is no indication in the Veteran's STRs that he injured his right hip at the time of the skiing accident, the Veteran testified that he injured his right hip at that time and was told he strained his right hip. Thus, the occurrence of an in-service injury to the Veteran's right hip is established, particularly when reasonable doubt is resolved in his favor. As the Veteran is diagnosed with arthritis, which is one of the listed chronic diseases, and to address the concerns of the July 2021 JMR, the Board has carefully considered whether service connection is warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Federal Circuit in Walker, there are two ways to establish service connection for a chronic disease. In this case, the evidence does not show that Veteran was diagnosed with arthritis during service or that it manifested during that time period even if diagnosed later. As such, it cannot be said that the chronic disease (arthritis) was established and not subject to legitimate question during service. Similarly, the evidence does not reflect that arthritis manifested to a compensable degree within one year of the Veteran's separation from service. Rather, the Veteran's right hip arthritis was diagnosed in 2010, when a VA physician reported than an x-ray showed the presence of mild degenerative narrowing of the right hip. The evidence does not show that the arthritis manifested by February 1963 even if diagnosed at a later date. As raised by the July 2021 JMR, the Board acknowledges there is conflicting evidence concerning the date the Veteran's right hip arthritis was diagnosed. In this regard, the JMR notes a September 2018 VA examiner indicated that the Veteran was diagnosed with arthritis in 2010 and the April 2020 Board decision notes that in August 2002, the Veteran reported right hip pain that was attributed to a back condition, as an x-ray of the Veteran's right hip was found to be normal. The JMR states further that a May 2010 x-ray examination report of the Veteran's right hip revealed "mild degenerative narrowing of the right hip which is virtually unchanged since 2002" and that a November 2017 VA examiner noted a date of diagnosis of 2002 for the Veteran's right hip osteoarthritis. As noted above, Board finds that the Veteran's right hip arthritis was diagnosed in 2010. In this regard, although the Veteran reported hip pain in August 2002, an x-ray taken of the Veteran's right hip at that time was found to be normal, and the Veteran's right hip pain was attributed to his back condition as he was diagnosed with lumbar radiculopathy. Concerning the May 2010 x-ray examination report which stated that there was "mild degenerative narrowing of the right hip that is virtually unchanged since 2002," the Board finds that the term "virtually unchanged" since 2002 indicates that the severity of the Veteran's right hip arthritis was mild at that time, as the x-ray of the right hip taken in August was found to be normal, and not that he had arthritis in 2002. With regard to the November 2017 examiner noting a date of diagnosis of 2002 for the Veteran's right hip osteoarthritis, the Board finds the examiner misread the May 2010 x-ray examination report, believing by mistake that the 2010 findings of mild narrowing were associated with an August 2002 x-ray. As service connection is not established on a presumptive basis, the Veteran must demonstrate a continuity of symptomatology. As to continuity of symptomatology, and as raised in the JMR, the Veteran asserted he experienced right hip pain since the time of his in-service skiing accident. The Veteran is competent to report the presence of symptoms and frequency of treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, the Board does not find the report of continuous symptoms to be credible in this case, as there is a gap of at least 40 years between the Veteran's skiing accident and his first report of right hip pain. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran denied a history of lower extremity issues at the time of his January 1962 separation physical, and his associated separation physical reflects that his extremities were "normal." VA treatment records from throughout the 1990s reflect that the Veteran did not report any right hip pain, although he reported other medical concerns including right knee pain in June 1996, a rash in January 1998, and abdominal pain in April 1998. As the Veteran reported these other conditions, the Board finds it likely he would have similarly reported experiencing right hip pain. VA treatment records reflect the Veteran's initial documented report of right hip pain was in August 2002, and at that time, he stated that his right hip pain began three or four days prior. See Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Thus, the absence of evidence is negative evidence in this case as the evidentiary foundation for finding such has been established. Accordingly, the Board finds that a preponderance of the evidence weighs against the claim based on a theory under 38 C.F.R. § 3.303(b). In addition, concerning the issue of whether there is a nexus between the Veteran's in-service skiing accident and his current right hip arthritis, the evidence of record also includes a September 2018 VA opinion that weighs against the claim. In this regard, the examiner found that the Veteran's right hip disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained that right hip symptoms were not noted during in-service treatment for the skiing injury. The examiner also noted that the Veteran's service treatment records do not show reports of right hip symptoms or conditions and a right hip condition was not reported during a January 1972 separation examination. She explained that the lack of supportive evidence decades after the skiing accident indicates that his current right hip arthritis is not related to the in-service fall. The Board acknowledges the Veteran's contention that his right hip arthritis is related to his in-service skiing accident. The Board notes that although the Veteran is competent to report his symptoms pertaining to his right hip, a determination as to whether there is a nexus between the Veteran's current right hip arthritis and his in-service skiing accident is a complex matter requiring related medical expertise. See Jandreau, 492 F.3d at 1377 n.4. As the Veteran has no known or reported medical expertise, he is not legally competent to opine on a relationship between his right hip arthritis and in-service right hip injury; thus, his opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. Consequently, the Board gives more probative weight to the VA opinion described above. The Board finds the opinion to be persuasive, as it relies on expert knowledge and the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion supports that the Veteran's in-service skiing injury is unrelated to his current right hip arthritis. The examiner explained that the lack of contemporaneous reports at the time of the in-service skiing injury and medical documentation decades following the injury indicate that the current hip disorder was not related to the in-service injury. The Board is mindful that the VA examiner materially relied on the absence of treatment during service and after service. The VA examiner's rationale is sound, however, as VA treatment records reflect the Veteran first sought care in August 2002 for a right hip condition. At that time, he stated his right hip pain began three or four days earlier. See Horn, 25 Vet. App. at 240 n.7. In addition, there is no similar medical opinion of record weighing in favor of service connection. (Continued on the next page) In order to address the concerns of the JMR pertaining to the adequacy of the September 2018 VA examination, the Board notes that although the opinion states that there were no records documenting a right hip injury during service, it acknowledges that the Veteran was involved in a skiing accident. Thus, the examiner provided a negative opinion despite recognizing the Veteran's in-service right hip injury due to a skiing accident, even in the absence of notations related to a right hip condition in the Veteran's STRs. In addition, the JMR also raises the question of whether the September 2018 VA examination was adequate due to conflicting evidence concerning the date the Veteran was diagnosed with arthritis. The examiner's opinion was based on the Veteran's right hip arthritis diagnosis occurring in 2010, which the Board determined was the correct date. As such, the examination cannot be considered not adequate based on the date of the right hip arthritis diagnosis. In reaching the conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for a right hip disorder. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.