Citation Nr: 21075659 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 09-05 303 TDATE: December 21, 2021 ORDER Entitlement to service connection for a left hip disability, to include as secondary to service-connected left and right knee disabilities, is denied. FINDINGS OF FACT 1. The Veteran has a left hip disability, diagnosed as moderately severe degenerative disease, status post left total hip resurfacing arthroplasty, and osteoarthritis. 2. Symptoms of a left hip disability were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. 3. The preponderance of the evidence is against finding that the Veteran's left hip disability is etiologically related to an in-service injury, event, or illness. 4. The preponderance of the evidence is against finding that the Veteran's left hip disability is proximately due to, or aggravated by, his service-connected left and right knee disabilities. CONCLUSION OF LAW The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1984 until his honorable discharge in March 1988. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from a June 2008 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in August 2011, March 2016, January 2018, July 2018, and August 2020. In August 2020, the Board remanded the issue of entitlement to service connection to the Agency of Original Jurisdiction (AOJ) for an addendum opinion. The claim is once again before the Board. The Board finds there has been substantial compliance with the August 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In August 2014, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired Veterans Law Judge. In August 2021 correspondence, the Veteran was provided the opportunity to request another hearing. The Veteran was advised if he did not respond, within 30 days from the date of this correspondence, it would be assumed he did not want another hearing and the Board would proceed accordingly. The Veteran did not respond; therefore, the Board will proceed. Legal Criteria for Service Connection 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the event a Veteran has at least one service-connected disability, he or she may be entitled to benefits based on a secondary service connection. In order to establish a secondary service connection, the Veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected disability is either proximately due to or aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310 ; Allen v. Brown, 7 Vet. App. 439, 444 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for a left hip disability. The Veteran asserts his left hip disability is related to service. In the alternative, he contends his left hip disability is secondary to his service-connected left and/or right knee disability. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a left hip disability, diagnosed as moderately severe degenerative disease, status post left total hip resurfacing arthroplasty, and osteoarthritis. See May 2008 VA examination report, April 2017 VA examination report, and November 2020 VA examination report. As to an in-service event, injury, or disease, the Veteran has testified his left hip disability symptoms began during military service. Specifically, the Veteran stated he injured his left hip while playing competitive basketball during active duty service. He stated while playing basketball, he jumped up to 'dunk,' and another player ran into him, causing him to fall onto the court. As a result, he sustained an injury to his left hip, ankle, and knee. See August 2014 Hearing Transcript. The Veteran is service-connected for left and right knee disabilities that he incurred as a result of this in-service injury. Thus, the question before the Board is whether a medical nexus exists between the Veteran's present left hip disability and his service. A review of the Veteran's service treatment records (STRs) fails to uncover any evidence he reported left hip related symptoms during military service. Service treatment records show treatment or reports of various symptoms, including right shoulder problems, right and left ankle problems, low back problems, right and left elbow problems, left knee problems, gastroenteritis, laryngitis, skin rash, and infertility. Examinations during service did not reveal any left hip symptoms. The Board acknowledges that an absence of documented complaints in a medical record cannot always constitute substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). It must be considered whether there is evidence as to the severity of symptoms that would have made it "reasonable to expect" that at that time, the Veteran would have reported symptoms or sought treatment. Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015). If so, the absence of complaints during treatment may provide affirmative evidence of absence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred. Here, STRs show the Veteran availed himself of treatment, and thoroughly documents symptoms that he did have, including other orthopedic symptoms. As the records are complete, and a hip injury and symptoms are such that they would have been recorded had they occurred, especially in the context of clear documentation of other injuries, to include a left knee injury and left ankle injury with casting, tends to show that no-inservice hip injury, disease, or even symptoms occurred. The Board finds that the absence of complaints under these circumstances may be weighed against a finding of service connection. The first mention of any left hip disorder in the post-service treatment records is June 2004, when the Veteran sought treatment from his physician with complaints of left groin and hip pain. He reported that the pain had been present for a number of months and was aggravated by running, jumping, acute stooping and starting activities. He denied any trauma. During his July 2004 VA examination the Veteran reported an in-service injury to his left knee while playing basketball. Post-service, he reported experiencing chronic left knee pain and undergoing right knee arthroscopy. He also reported now having pain in his left hip. No nexus opinion was provided. In December 2005, the Veteran reported a history of chronic pain in his left hip and left knee. He described the duration of pain as five (5) years. In August 2007, the Veteran underwent left hip resurfacing. His physician noted a progressive history of left hip pain and radiographic evidence of osteoarthritis, with failed attempts at conservative management. The Veteran was afforded a VA joints examination in May 2008. During the examination, the Veteran stated the left hip problem began about 2005, with no specific injury. He stated the left hip condition was due to his bilateral knee condition. The examiner noted, "he feels that over the years he thought it was his left knee pain was due to the left knee joint, but he believes it was actually pain radiating to the left knee from a left hip condition. He did not have left hip pain until around 2005." In providing a negative secondary service connection opinion, the examiner stated, "I cannot offer an opinion because such knowledge is not available in the medical literature, and any opinion would be speculation." Lastly, the examiner stated, "I cannot tell without speculation if degenerative joint disease left hip was aggravated by the service-connected bilateral knee conditions." In his July 2008 notice of disagreement and December 2008 substantive appeal, the Veteran reported being injured in Japan. He reported the physicians took care of his left knee, however, the problem was his left hip. In his June 2009 substantive appeal, the Veteran stated that his left hip disability was secondary to his service-connected left knee condition. He noted that his claim for service connection had been erroneously adjudicated as a direct service connection claim. In March 2011, the Veteran reported suffering an in-service sports injury to his left knee. He acknowledged there is no history in service of treatment for his hip, but he believes the military failed to note the injury to his left hip at the time and concentrated only on his knee. In March 2013, the Veteran submitted a Residual Functional Capacity Questionnaire (RFC) and Service-Connected Questionnaire completed by Dr. A.A. Dr. A.A.'s diagnoses included polyarthralgias history of left total hip replacement. Dr. A.A. indicated that the Veteran's current diagnosis and symptoms are a direct result of his military service. In the March 2016 remand, the Board acknowledged the March 2013 Service-Connected Questionnaire completed by Dr. A.A. was inadequate because Dr. A.A. did not provide supporting rationale for the opinion offered. In accordance with the remand, the Veteran was afforded a VA Hip and Thigh Conditions examination in April 2017. During the examination, the Veteran reported he sustained an in-service concussion and injury to his left hip, ankle, and knee. Post-service he experienced left hip pain which he attributed to his left knee. The VA examiner provided negative nexus medical opinions. In January 2018, the Board found the record did not contain an adequate medical opinion regarding the etiology of the Veteran's left hip disability. Specifically, the May 2008 opinion provided no rationale in support of the conclusions reached. The April 2017 opinion also indicates that the examiner failed to consider all relevant evidence present in the claims file. Additionally, the April 2017 examiner did not offer a sufficient rationale for the opinions rendered against secondary service connection and aggravation. In accordance with the January 2018 Board remand, the AOJ requested an addendum opinion. In a March 2018 addendum opinion, the VA examiner stated during the Veteran's active duty there were no records showing pain, complaints, or injury regarding the left hip. Therefore, it is unlikely that the subsequent arthritis that developed in the hip was posttraumatic originating during his active duty. The first notes that refer to pain in the left hip occurred during a VA knee examination in July 2004. The examiner opined that, if the patient were favoring the left knee, the ipsilateral hip would be offloaded with more pressure or weight distributed to the right lower extremity. The progressive nature of hip osteoarthritis described in the medical records is consistent with the natural history of an arthritic condition specifically of the hip. There would be no causality or link to the posttraumatic arthritis that involves the patient left knee. In the July 2018 remand decision, the Board found that although the March 2018 examiner indicated that the Veteran's left hip disability was not related to any of his service-connected knee disabilities, the examiner's rationale failed to adequately address any potential relationship between his left hip disability and his service-connected right knee disability. Pursuant to the July 2018 remand, a VA Hip and Thigh Conditions examination was conducted in May 2019. As to direct service connection, the examiner provided a negative nexus opinion. In support of this opinion the examiner stated review of service medical records noted no complaints, investigations, diagnosis, or treatment of a left hip condition. The Veteran was noted to have left hip degenerative joint disease in 2005, decades post service. Thus, there is no disability pattern due to his service. As to secondary service connection, the examiner provided a negative nexus opinion. As rationale, the examiner stated, review of medical record show the Veteran was noted to have left hip degenerative joint disease in December 2005. There is no medical literature to support that the Veteran's left knee condition can cause left hip degenerative joint disease it being on the same side of the affected left knee would instead protect the left hip. Furthermore, there is no medical literature to support that the Veteran's right knee condition can cause left hip degenerative joint disease in the absence of a grossly abnormal gait, which the Veteran does not have. Most recently, in the August 2020 remand, the Board found a new medical opinion was necessary to address the etiology of the Veteran's left hip disability. The Board noted that, although the May 2019 medical opinion was accompanied by a full rationale, it was not issued by an orthopedic surgeon as specified by the July 2018 Board remand. See Stegall, 11 Vet. App. at 271. The Veteran attended a VA Hip and Thigh Conditions examination in November 2020, but because the examination was performed by a Nurse Practitioner the AOJ requested an addendum opinion from an Orthopedic Surgeon. In March 2021, a QTC examiner provided negative nexus opinions. As to direct service connection, the examiner remarked there are no reports of left hip pain, or any left hip orthopedic issues, within the Veteran's STRs. The Veteran's degenerative joint disease was found in 2005, years after service separation. The examiner stated osteoarthritis has several contributing factors and causes including hereditary factors, obesity, advancing age, and alcoholism. The examiner remarked, the Veteran is a known alcohol user, noting, the Veteran's medical records are replete with a diagnosis of alcohol abuse disorder, and this could contribute to the development of arthritis. The examiner concluded that the Veteran's left hip disability is less likely than not etiologically related to his active duty service. As to secondary service connection, the examiner opined it is less likely than not that the Veteran's left hip disability is proximately due to, or aggravated by, his service-connected left or right knee disability. The examiner found there is no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). For this type of gait to have impact on the opposite or injured leg, it is likely that the abnormal gait or limp would need to be present over an extended period of time. A temporary abnormality in gait is unlikely to have any effect on the opposite leg. The use of a cast, cane, and crutches is also unlikely to have any major impact on the stress borne by the uninjured limb. Lastly, as to aggravation, the examiner stated no medical evidence exists in the medical literature that supports a correlation between a same side or opposite side hip disability being aggravated beyond natural progression by knee disabilities. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran's left hip disability was manifested during service or related to service in any way. As an initial matter, the Board notes there is no evidence that the Veteran had arthritis at separation or within one year thereafter. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Thus, the Veteran is not entitled to service connection for arthritis of the left hip, either as a chronic disease incurred during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); See Walker, 708 F.3d 1335 -7. The Board acknowledges the Veteran's statements that he has had ongoing left hip problems since service. The Veteran is competent to report his experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). A Veteran can attest to factual matters of which he or she has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Veteran is competent to report that he suffered a left hip disability on active duty and symptoms since service, his reports are not credible due to the inconsistencies with other evidence in the record. As noted above, the Veteran's STRs do not note treatment or complaints of a left hip disability and the Board finds his reported history of left hip pain beginning in 2004 is more credible than the later histories of the hip pain beginning in service. The absence of relevant treatment is consistent with the Veteran's report of onset in June 2004 and inconsistent with an earlier onset date. Further, after service, the Veteran did not file a claim for service connection for a left hip disability when seeking service connection for other disorders believed to be related to service. Given these facts, the Board finds that the Veteran's reported history of an in-service hip injury and symptoms made pursuant to this claim for compensation is inconsistent with and outweighed by the other lay and medical evidence of record and is not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weight against the other evidence, although the lack of such medical records does not in and of itself, render the lay evidence not credible); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that a lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim). Based on the foregoing, the competent, credible, and most probative evidence does not show that the Veteran had a left hip disorder that manifested in service or within one year thereafter or that he had continuity of symptomatology. In addition to the lack of evidence showing that a left hip disorder manifested during active service or within close proximity thereto, the weight of the evidence of record does not link any current left hip disorder to the Veteran's military service. Post-service treatment records reflect he was not diagnosed or treated for this disability until more than fifteen years after his service separation. The March 2021 examiner concluded that the Veteran's left hip disability is less likely than not etiologically related to his active duty service. He noted no reports of left hip pain, or any left hip orthopedic issues, within the Veteran's STRs. Further, the Veteran's degenerative joint disease was found in 2005, years after service separation. The examiner stated osteoarthritis has several contributing factors and causes including hereditary factors, obesity, advancing age, and alcoholism. The examiner remarked, the Veteran is a known alcohol user, noting that his medical records are replete with a diagnosis of alcohol abuse disorder, and this could contribute to the development of arthritis. This opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is supported by the May 2008, April 2017, March 2018, and May 2019 VA opinions regarding direct service connection. The Board finds the March 2021 opinion more probative than the March 2013 opinion by Dr. A.A., which provides no supporting rationale. Thus, the evidence preponderates against finding that the Veteran's current left hip disability is directly related to service. Service connection for left hip disability may still be granted on a secondary basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's left hip disability and his service-connected left or right knee disabilities. The March 2021 examiner opined it is less likely than not that the Veteran's left hip disability is proximately due to, or aggravated by, his service-connected left or right knee disability. The examiner thoroughly reviewed the Veteran's claim file and articulated a sufficiently clear and well-reasoned rationale explaining the opinion. The probative value of this opinion is accordingly high. This opinion is supported by the Mach 2018 and May 2019 VA opinions. Additionally, the Veteran has not submitted competent medical evidence to the contrary. The Board has considered the Veteran's lay statements. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the question of etiology of a left hip disability is a medical issue that requires medical training and expertise which the Veteran has not been shown to possess. Therefore, the Veteran is not competent to address etiology in the present case. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, for the reasons stated above, and based on the evidence of record, the Board finds that the most probative evidence is against finding a relationship between the Veteran's left hip disability and his service, and against finding a relationship between his left hip disability and his service-connected left and right knee disabilities. The benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.