Citation Nr: 21007370 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-44 556 DATE: February 9, 2021 ORDER Service connection for right hip condition, to include osteoarthritis, trochanteric pain syndrome and trochanteric bursitis, is granted. Service connection for right knee condition, to include degenerative arthritis, is granted. FINDINGS OF FACT 1. The Veteran has a current disability of right hip osteoarthritis, trochanteric pain syndrome, and trochanteric bursitis. 2. The competent and probative evidence is at least in equipoise that the Veteran experienced an in-service right hip injury in Korea. 3. The competent and probative evidence is at least in equipoise that the Veteran has had continuous symptoms of right hip osteoarthritis since service separation. 4. The Veteran has a current diagnosis of degenerative arthritis of the right knee. 5. The competent and probative evidence is at least in equipoise that the Veteran experienced an in-service right knee injury in Korea. 6. The competent and probative evidence is at least in equipoise that the Veteran has had continuous symptoms of degenerative arthritis of the right knee since service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip condition, to include osteoarthritis, trochanteric pain syndrome, and trochanteric bursitis, are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right knee condition, to include degenerative arthritis, are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1953 to November 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously considered this matter in September 2018 and August 2020, when it remanded for additional development. It has now returned to the Board for appellate review. By way of procedural history, the Board notes that the Veteran's claims were previously characterized as three separate claims for service connection for a right hip condition, a right knee condition, and a right leg/thigh crush injury. Cognizant of the VA's duty to consider all disorders reasonably encompassed by the Veteran's claim, as outlined in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has re-characterized the claims into two issues, as characterized above. This case has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be: 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as degenerative arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). 1. Service connection for right hip condition, to include osteoarthritis, trochanteric pain syndrome, and trochanteric bursitis, is granted. 2. Service connection for right knee condition, to include degenerative arthritis, is granted. The Veteran seeks service connection for a right hip condition, to include osteoarthritis, trochanteric pain syndrome, and trochanteric bursitis, and a right knee condition, to include degenerative arthritis. See 09/21/2015 VA 21-526b, Veteran Supplemental Claim. He contends that his right hip condition and right knee condition were caused by an injury incurred during active military service in Korea and that he has had continuity of symptomatology ever since. The Veteran has current diagnoses of right hip osteoarthritis, trochanteric pain syndrome, trochanteric bursitis, and right knee degenerative arthritis. See 12/30/2019 C&P Exam. The competent evidence of record therefore shows that the Veteran has a current right hip disability and right knee disability, which satisfies the first element of service connection. Further, the Veteran has a current diagnosis of right hip osteoarthritis and right knee degenerative arthritis, which are chronic diseases under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding the element of in-service incurrence, the Veteran contends that while participating in a military convoy in the year 1953 or 1954, he became pinned between two military trucks, resulting in injury to his right knee and hip. See 03/25/2016 C&P Exam. He further asserts that he was taken to a military hospital where he remained hospitalized for four to five days, and that he has experienced symptoms of a right hip and right knee condition ever since. As an initial matter, the Board observes that VA has determined that the Veteran’s service treatment records (STRs) cannot be located and are therefore unavailable. See 10/02/2020 Correspondence. In cases where VA deems STRs to be unavailable, the Board has a heightened duty to assist the Veteran in the development of his claim. Cuevas v. Principi, 3 Vet. App. 542 (1992). Turning to the evidence, the Veteran’s DD Form 214 shows that he was awarded the Korean Service Medal. 01/08/2016 DD 214 Certified Original. In addition, the Veteran has submitted lay statements written by his brother and friend of more than 60 years, S.R. See 01/08/2016 Buddy / Lay Statements. Both lay statements corroborate the Veteran’s contentions regarding the in-service injury to his right knee and hip. Finally, a March 2016 VA examination report contains the examiner’s assessment that the Veteran “is a credible historian and there is no question by this examiner that this patient did have an episode where he was pinned between 2 vehicles.” 03/25/2016 C&P Exam at 1. Here, the Board finds that the Veteran’s reports of the in-service injury and the in-service onset of his right hip condition and right knee to be competent and credible. See Jandreau, 492 F.3d at 1377; see also 38 C.F.R. § 3.159. Furthermore, his reports are consistent with the lay statements of record, which the Board also deems to be competent and credible, as well as the assessment of the March 2016 VA examiner. See 01/08/2016 Buddy / Lay Statements; see also 03/25/2016 C&P Exam. In light of the foregoing, the Board finds that the evidence is at least in equipoise that he experienced an in-service injury to his right hip and right knee in Korea. Accordingly, and resolving any doubt in favor of the Veteran, the Board finds that the second element of service connection, in-service incurrence, has been met. Turning to the third element of service connection, nexus, the Veteran was afforded a VA examination in March 2016, as noted above. See 03/25/2016 C&P Exam. The examiner diagnosed the Veteran with right hip osteoarthritis and right knee osteoarthritis. Regarding nexus, the examiner opined that it was less likely than not that the Veteran’s right hip condition and right knee condition were related to service. As rationale, the examiner reasoned that while he found the Veteran’s reports of an in-service injury to be credible, the Veteran did not seek treatment until 21 years after discharge, and there was no evidence of chronicity of a right hip condition or right knee condition. Further, the examiner opined that the Veteran’s right hip osteoarthritis and right knee degenerative arthritis were not posttraumatic in nature, but instead were related to his occupation as a carpenter and age. The Veteran was next afforded a VA examination in December 2019, where the examiner made diagnoses of right hip osteoarthritis, trochanteric pain syndrome, and trochanteric bursitis and degenerative arthritis of the right knee. See 12/30/2019 C&P Exam. The examiner opined, similar to the 2016 examiner, that these conditions were less likely than not related to service, due to the lack of evidence of complaints of a right hip or right knee condition upon discharge from service. Pursuant to the August 2020 Board remand, an addendum medical opinion was obtained in October 2020. 10/08/2020 C&P Exam. The examiner opined that the Veteran’s right hip condition and right knee condition were less likely than not related to service, based on a lack of evidence of the same in service and a lack of evidence of chronicity of symptoms post-service. The Board acknowledges the three VA medical opinions of record, but finds that they are all inadequate for decision-making purposes and accordingly are entitled to little probative weight. In this regard, the Board notes that the March 2016, December 2019, and October 2020 examiners all based their negative opinions as to nexus on the absence of evidence of a chronic right hip condition and right knee condition in the Veteran’s STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner failed to comment on the Veteran’s reports and instead relied on the absence of evidence in STRs to provide a negative opinion). Moreover, the Board finds the aforementioned medical opinions to be inadequate because they the examiners failed to show adequate consideration of pertinent competent evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Specifically, the March 2016, December 2019, and October 2020 examiners possibly failed to show consideration of a June 1997 VA treatment record showing a diagnosis of possible traumatic arthritis. See 11/09/2020 Medical Treatment Record – Government Facility at 8. Further, it is clear that the December 2019 and October 2020 opinions failed to show consideration of the competent and credible lay statements written by the Veteran’s brother and friend, S.R., regarding an in-service injury and chronicity of symptoms of a right hip condition and right knee condition. See 01/08/2016 Buddy / Lay Statements. The Veteran has current diagnoses of right hip osteoarthritis and right knee degenerative arthritis, which are chronic diseases. 38 C.F.R. § 3.309(a). The Veteran has competently and credibly reported that he suffered an in-service injury to his right hip and knee, and that he has experienced continuous symptoms of right hip osteoarthritis and right knee degenerative arthritis ever since. The lay statements written by the Veteran’s brother and S.R. corroborate the Veteran’s contentions regarding in-service incurrence and chronicity of symptomatology, and the Board likewise deems those statements to be competent and credible. (Continued on the next page)   Based on the foregoing, and resolving all doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's right hip condition and right knee condition are related to an injury incurred while on active duty and that symptoms have continued since that time. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). Accordingly, the Board finds that service connection for right hip condition, to include osteoarthritis, trochanteric pain syndrome, and trochanteric bursitis, and right knee condition, to include degenerative arthritis of the right knee, is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.