Citation Nr: 21007773 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-56 750 DATE: February 10, 2021 ORDER Entitlement to service connection for left hip osteoarthritis is granted. FINDING OF FACT The Veteran has experienced continuity of symptomatology related to left hip osteoarthritis since his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for left hip osteoarthritis are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Army from September 1961 to August 1963. This matter appears before the Board of Veterans’ Appeals (Board) on appeal of a December 2014 rating decision of the Regional Office (RO) of St. Petersburg, Florida. The Veteran’s claim of entitlement was remanded in April 2018 to obtain an addendum opinion addressing whether the Veteran’s left hip was as likely as not related to service, specifically his credible reports that he performed more than 130 parachute jumps. The Veteran’s claim was again remanded by the Board in July 2020 because the new VA opinion was inadequate, and Stegall compliance was not met. In its July 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion addressing the Veteran’s parachute jumps and credible reports of symptomatology since separating from service. Further, the Board directed the examiner to not solely rely on the lack of contemporaneous medical evidence. VA requested the opinion in August 2020, and a new opinion was associated with the Veteran’s claim in September 2020. However, the Board finds that the opinion is inadequate. The Board explicitly directed the examiner to consider his credible reports of symptomatology since service and his parachute jumps in service. The examiner failed to do so. Accordingly, the Board does not find substantial compliance with its July 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the Board finds this defect is cured by granting the Veteran’s claim in the present appeal. 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). Entitlement to service connection for left hip osteoarthritis The Board finds that the evidence in at least in equipoise to support granting the Veteran’s claim of entitlement to service connection for left hip osteoarthritis. The Veteran contends that his current left hip osteoarthritis is due to his numerous parachute jumps in service. Specifically, the Veteran asserts that he has experienced hip pain since his separation from service. The evidence of record is at least in equipoise to support granting the Veteran’s claim. Certain chronic diseases will be presumed related to service 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Veteran was diagnosed with minimal degeneration of the bilateral hip joint spaces in November 2013. In the same treatment note as the diagnosis, the Veteran reported having hip pain for the majority of his adult life. He specifically reported his time in service as the starting point for the pain. The Veteran consistently reported one singular jump in service in which he hurt his left ankle and cut his hip. The Veteran’s DD-214 confirms the Veteran received the parachutist badge. The Veteran’s service treatment records document injuries from the jump the Veteran references. In February 1963, the Veteran reported to medical after being injured during a jump the previous night. The entry notes an ankle sprain and a laceration on his left thigh. The Veteran has reported that the laceration was on his left hip. A separate entry noted that the laceration was superficial and did not require sutures. He also consistently reported that he reinjured his hip on subsequent jumps but didn’t seek treatment. The Veteran underwent VA examination in November 2014. The examiner diagnosed the Veteran with left hip osteoarthritis since November 2013. The Veteran reported injuring his hip in a jump in service and experiencing periodic hip pain since then. The examiner opined that the Veteran’s left hip osteoarthritis was less likely than not related to service because his service treatment records were silent for left hip injury and a person over the age of 50 has an increased risk of developing arthritis. In November 2018, the Veteran underwent VA examination again. The examiner diagnosed the Veteran with left hip osteoarthritis and iliopsoas tendonitis. The Veteran reported he initially hurt his hip during a parachute jump in service and experienced residual pain since then. The Veteran reported the condition progressively worsened. The examiner again concluded that the Veteran’s left hip osteoarthritis was less likely than not related to his service, including his parachute jumps, because there was minimal medical documentation. Although, the examiner found the Veteran to be a reliable historian. As noted above, the Board previously found both the November 2014 and November 2018 VA examiners’ opinions inadequate because they both relied on the lack of contemporaneous medical records. Further, the November 2014 VA examination failed to consider the Veteran’s parachute jumps in the opinion offered. Accordingly, the Board assigns these VA examinations little probative weight. Finally, a September 2020 addendum VA opinion was obtained. The September 2020 examiner concluded that the Veteran’s left hip osteoarthritis was less likely than not related to service. There are multiple reasons that the September 2020 addendum opinion was inadequate. First, the examiner indicate the Veteran was not diagnosed until October 2018; however, as established above, the Veteran was initially diagnosed with degenerative changes in his hip in October 2013. Second, the examiner failed to consider the Veteran’s parachute jumps in service, despite the explicitly asking for such analysis. Third, the examiner failed to consider the Veteran’s credible reports that he experienced symptoms since separating from service. Accordingly, the Board gives the September 2020 addendum opinion little probative weight. The Veteran’s reports in lay statements to the Board and reports to medical providers (both VA and private) remain consistent and competent. The Veteran is competent to report observable symptoms, and pain is an observable symptom. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran has continuously maintained that he has experienced pain in his left hip since service. Furthermore, despite an official diagnosis not being made until 2013, the Federal Circuit Court has previously ruled that pain which causes functional impairment can be determined to be a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran’s private treatment record indicates that he experienced pain in his left hip since service. He reported similar experiences to the VA examiners. In addition, the Veteran reported an inability to lay on his left side, experienced difficulties with prolonged walking and standing and stiffness. The Board finds that the pain with accompanying symptoms resulted in a disability. Id. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran has shown a continuity of symptomatology since separating from service, and entitlement to service connection for left hip osteoarthritis is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.