Citation Nr: A21019441 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210419-153625 DATE: December 7, 2021 ORDER Entitlement to service connection for bilateral hip condition, to include as secondary to bilateral knee condition is denied. FINDING OF FACT The Veteran has not had a diagnosed bilateral hip disability during the appeal period or within proximity thereto. CONCLUSION OF LAW The criteria for service connection for bilateral hip condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the U.S. Army from April 1965 to March 1967. The rating decision on appeal was issued in February 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In August 2021, the Veteran requested withdrawal of his hearing request. Although he withdrew the hearing request, the hearing lane permits the Board to review the evidence before the RO at the time of the February 2021 rating decision and evidence submitted within 90 days following receipt of the Board hearing withdrawal request. 38 U.S.C. § 20.302 (b). The Board notes that the Veteran has submitted additional evidence that is deemed timely and thus will be considered. As a preliminary matter, the Board notes that the Veteran currently has a second appeal pending in the AMA system, namely, a claim for entitlement to service connection for bilateral knee condition. The AMA does not allow the Board to merge AMA appeals stemming from different notices of disagreement (VA 10182), and as such, these issues will be addressed in a separate decision after review by the Board. See 38 C.F.R. § 3.156 (d). This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to service connection for bilateral hip condition, to include as secondary to bilateral knee condition is denied. 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). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks entitlement to service connection, on either a direct or secondary basis, for a bilateral hip disability. In his October 2021 memorandum, the Veteran asserts that his bilateral hip condition is attributable to his bilateral knee condition. Despite the Veteran's lay assertions, the Board finds the Veteran is not entitled to an award of service connection, on either a direct or secondary basis, for a bilateral hip disability. Specifically, the Board finds no evidence the Veteran has been diagnosed with a bilateral hip disability during any period relevant to his appeal. In reaching this determination, that the Veteran does not have a left or right hip disability, the Board has considered the Court's holding that when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In other words, the Board has considered all of the Veteran's reported symptoms and limitations in considering the scope of his claim for service connection. Despite this broad approach, the Board finds there is no current diagnosis for any left or right hip condition and therefore, the first element of service connection has not been met. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). First, after reviewing the Veteran's service medical records, the Board finds the Veteran was never diagnosed or treated for either a left or right hip disability during his active-duty service. More significantly, a review of these service medical records does not indicate the Veteran ever sought treatment for any symptom or complaint related to either his left or right hip. Similarly, a review of the Veteran's post service medical records reveals no indication that the Veteran has been diagnosed with either a left or right hip disability. In fact, the medical records are silent to any hip complaints or treatment. With consideration of the above, the Board has reviewed all the medical evidence of record, but finds no probative evidence of record which establishes that the Veteran has been diagnosed with any discernable left or right hip disability. In the absence of proof of a present disability, there can be no valid claim for service connection. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The Board emphasizes the Veteran is competent as a lay person to report symptoms of a bilateral hip condition. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, in the present case, the Veteran's lay complaints, although acknowledged, are outweighed by the more probative medical evidence which is silent to any left or right hip complaints or treatment during the pendency of his appeal. Overall, the Board finds that the Veteran does not have any current left or right hip disability. (Continued on the next page) Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for either a left or right hip disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nykeia F. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.