Citation Nr: 21005497 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-28 734 DATE: February 1, 2021 ORDER Entitlement to service connection for right hip replacement, status post right hip degenerative joint disease secondary to service-connected disabilities, specifically to include bilateral plantar warts, is denied. FINDING OF FACT The evidence fails to establish that the Veteran’s right hip replacement, status post (s/p) right hip degenerative joint disease (DJD) was caused or aggravated by the service-connected disabilities, specifically to include bilateral plantar warts. CONCLUSION OF LAW The criteria for service connection for right hip replacement, s/p right hip DJD, have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to February 1979 and October 1979 to October 1981. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision. This case was previously before the Board in February 2016, August 2018, and most recently in March 2019, when it was remanded for additional development, to include a VA medical opinion to address service connection based on the theory of aggravation. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for appellate review. The Veteran asserts entitlement to service connection for a right hip replacement s/p right hip DJD secondary to his service-connected bilateral plantar warts. The Board notes neither the Veteran nor his representative have asserted, nor does the record reflect, that the claimed right hip replacement first manifested during service or was directly related to his active duty service. Rather, the Veteran has claimed his right hip replacement is secondary to his service-connected plantar warts disability. See March 2015 VA Form 9 Substantive Appeal. Thus, the Board will address only whether the Veteran is entitled to service connection for his claimed right hip replacement on a secondary basis. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board acknowledges that the Veteran has a current diagnosis of right hip replacement, s/p right hip DJD. See April 2010 VA operation report. Therefore, the only questions for the Board is whether the current disability is proximately due to, or aggravated by, his service-connected bilateral plantar wart disability. By way of history, the Board observes service connection was granted for right and left foot plantar warts, separately, both effective in February 2005. Service connection for exostosis right obturator foramen (claimed as hairline pelvis fracture due to plantar warts) due to plantar warts was granted in a June 2012 rating decision with an effective date in September 2008. The Board notes that the pelvis is defined a cup-shaped ring of bone at the lower end of the trunk. The ring of bone is joined at the symphysis pubis at the anterior portion of the ring. At the sides of the ring, laterally, are the two hip bones, and at the posterior of the body, the pelvis is joined, at the right ileum and left ileum, to the sacrum and coccyx. The left pubic bone, inferior ramus, connects the pubic bone to the ischium around the framework of the groin (obturator foramen). See Dorland’s Illustrated Medical Dictionary 1338, 1512, 700, 771 (31st ed. 2007). In June 2013 correspondence, the Veteran’s representative submitted a letter from a private physician noting the Veteran was complaining about hip pain. The cover page accompanying this evidence requests the VA to take ation to consider entitlement to an increased rating for right hip disability, which as noted above is separate from the obturator foramen. The Veteran was afforded a May 2013 VA hip and thigh conditions examination wherein the examiner focused on the increased rating claim for the service-connected exostosis right obturator foramen. The examiner also observed that the diagnosed hip surgery and residual scar are separate diagnoses. The claim for service connection for right hip replacement, s/p right hip DJD was denied in a September 2013 rating decision. The Veteran filed a February 2014 Notice of Disagreement (NOD). The Board notes the claims file includes a January 2012 treatment letter from a VA provider, who, after an interview and in-person examination, observed that bilateral large plantar warts can be extremely painful, especially when pressure is applied to the plantar surface of the feet. The provider opined that this pain apparently caused the Veteran to fall down some stairs and land on his right hip, which then resulted in a right hip replacement with femoral medullary shaft that has in turn caused severe leg pain. The examiner concluded by noting a belief that the inciting incident was the fall caused by the sudden pain. The claims file reveals that the Veteran was afforded an April 2012 VA back (thoracolumbar spine) examination wherein the examiner confirmed an April 2010 right total hip arthroplasties (THA). The examiner noted the Veteran report of right hip injury after pain in his feet caused him to fall down a set of stairs and land on his right hip. Following an in-person examination, the examiner opined that the Veteran’s right suprapubic exostosis is at least as likely a result of a fall down a set of stairs that was spurned by acute foot pain from plantar warts. As a rationale, the examiner noted that the Veteran has right side pain with altered gait mechanics after the fall. The exostosis was subsequently radiologically identified, but not immediately, as they do not calcify and become visible until sometime after the injury. Bilateral right hip DJD was first noted radiologically approximately 2009. The examiner explained that if the DJD were due to the fall with the altered gait mechanics, it would have been noted unilaterally or as asymmetric (only the right side). The examiner concluded by noting that the right hip THA with postoperative meralgia paresthetica is less likely than not a result of the fall down a set of stairs in 1985. A May 2012 addendum to the April 2012 examination indicates that the examiner was asked to clarify if the pain noted during range of motion (ROM) testing for the April 2012 examination was due to post-operative residuals or the exostosis. The same examiner noted that the left hip (not implicated in the accident or the operation) exhibited 10 degrees more ROM than the right hip. A hip s/p arthroplasty should exhibit an increased ROM over a hip exhibiting DJD if the ROM is affected solely by the femoral head degeneration. ROM was stopped when pelvic movement occurred due to the exostosis. Thus, the right hip limited ROM is due to the exostosis that causes pain. The examiner was also asked to clarify if the right hip DJD s/p arthroplasty would or would not be a secondary condition to the service-connected right knee injury. The examiner noted that if the right hip DJD were due to the right knee, degenerative changes would have been asymmetric (right side only) as opposed to bilateral as noted on radiologic evaluation prior to the April 2010 THA. The examiner also noted that the January 2012 treatment provider was correct to opine that the exostosis was caused by the fall after the Veteran put weight on his extremely painful plantar warts. However, the treatment provider was incorrect to assign the same cause for the right hip degeneration of the femoral head that eventually required THA. As a rationale, the examiner noted that the femoral head degeneration is anatomic, as it was symmetric with the non-injured left side, and there are inherent mechanics including pes planus that would contribute to the development of such hip joint changes. In a May 2013 VA hip and thigh conditions examination, the examiner confirmed diagnoses of right hip DJD from April 2010; post-operative total right hip replacement for DJD, with residual scar from April 2010; and exostosis right obturator foramen from April 2010. The examiner noted the diagnosed hip surgery and residual scar are new and separate diagnoses. There is no change to the diagnosed exostosis right obturator foramen. The Board notes no etiology opinion was provided for the Veteran’s right hip replacement, s/p right hip DJD. The claims file also includes an August 2015 VA hip and thigh conditions examination, wherein the examiner confirmed right hip replacement surgery in 2010. The medical history section notes that the Veteran fell down some stairs in 1984 and hurt his hip resulting in a hairline fracture. Again, no etiology opinion was provided for the Veteran’s right hip replacement, s/p right hip DJD. Following the Board’s August 2018 remand, the RO requested and obtained an April 2019 VA hip and thigh conditions examination. The examiner confirmed a right hip replacement in April 2010 and revision in January 2015, and bilateral degenerative arthritis (left from 2009 / right from 2019), and superior pubic ramus exostosis from March 2009. The use of assistive devices was noted to include a cane and occasionally a walker. Imaging from 2009 was reviewed. In the attached medical opinion, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that there is no objective evidence of a documented hip injury to include right hip replacement s/p right hip DJD during service. Thus, the Veteran’s s/p right hip replacement, right hip DJD, and superior pubic ramus exostosis noted on the current examination were less likely than not incurred in or caused by service. A nexus cannot be established for direct service connection. The examiner also provided a medical opinion for aggravation of a nonservice connected condition by a service-connected condition. The examiner noted that plantar warts have been present throughout the entire timeline of medical conditions including the diagnosed degenerative hip joint disease and hip replacement, so a baseline severity of hip condition without plantar warts cannot be determined by a review of medical records and the Veteran’s current condition. After noting a baseline level of severity could not be established, the examiner opined that the Veteran’s right hip replacement, s/p right hip DJD, was not at least as likely as not aggravated beyond its natural progression by service-connected plantar warts. As a rationale, the examiner noted that based on the current medical evidence provided, there is no objective evidence to support that right foot plantar warts aggravated the right hip replacement status post right hip DJD beyond its natural progression. A nexus cannot be established. A December 2019 VA medical opinion was obtained following the Board’s August 2019 remand. The examiner noted that a baseline level of severity for the Veteran’s right hip replacement s/p right hip DJD could not be determined by a review of the available medical evidence. The examiner opined that regardless of the baseline, the Veteran’s right hip replacement s/p right hip DJD was not at least as likely as not aggravated beyond its natural progression by his service-connected bilateral plantar warts. As a rationale, the examiner noted that all the available medical records were reviewed, to include the remand documents. There was no documented evidence in the medical records to support aggravation of the Veteran’s right hip replacement s/p right hip DJD, beyond its natural progression, by the service-connected bilateral plantar warts. The examiner concluded by noting that there was no human pathophysiology to support a possible aggravation. In a January 2021 brief, the Veteran’s representative challenged the credentials of the December 2019 VA examiner who provided the medical opinion, noting that the examiner was not shown to have any particular expertise, experience, training, or competence in commenting on orthopedic disorders. Rather, the examiner was identified merely as a Physician Assistant – General Practice. Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019), holds that a Veteran is required to challenge a VA examiner's competence in the first instance. In this instance, the representative has not requested the examiner’s credentials but has instead questioned that examiner’s competence. The fact that the contract examiner was a physician’s assistant does not render the examiner unqualified or render the examination inadequate. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Rather, a physician’s assistant may generally be considered as qualified through education, training and/or experience to offer medical diagnoses and opinions. Thus, in the absence of any specific objection to the competence of the examiner (other than that he is a physician’s assistant), the Board finds that he was competent to provide the medical opinions in this case. Id. The Board finds the December 2019 opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Contrary to the Veteran’s contentions, the Board finds no basis to ascertain that the medical professional who provided the December 2019 opinion was not qualified to do so; the Board is entitled to assume the competence of a VA examiner. See Cox v. Nicholson, supra. The Board has considered the Veteran’s lay contentions, but he lacks the training and credentials to provide a competent opinion as to a medical diagnosis or etiology. His lay opinion accordingly does not constitute competent and probative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In short, the preponderance of the evidence is against the Veteran’s claim, and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See Gilbert, supra. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.