Citation Nr: 21008828 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-12 708 DATE: February 18, 2021 ORDER Service connection for a right hip condition is denied. Service connection for a left hip condition is denied.   FINDINGS OF FACT 1. The Veteran’s right hip condition did not have its onset in service or within one year of service, is not otherwise related to service, and is not proximately due to service-connected disability. 2. The Veteran’s left hip condition did not have its onset in service or within one year of service, and is not otherwise related to service, and is not proximately due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a left hip condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1968. The case is on appeal from a September 2012 rating decision. In September 2014, the Veteran testified at a Board hearing. In April 2015 and June 2018, the Board remanded the claims for additional development. When last on appeal, in September 2019, the Board denied claims of service connection for left wrist carpal tunnel syndrome (CTS), right wrist CTS, a left foot bottom condition, and a right foot bottom condition. The Board also remanded the claims of service connection for a right hip condition and a left hip condition for additional development. In October 2020, the Board erroneously issued a letter inviting the Veteran to request a virtual hearing instead of waiting for a Travel Board hearing. The Veteran responded to the letter requesting a virtual hearing. However, it was later determined that a hearing was already conducted for this appeal in September 2014; thus, the letter was in error. In November 2020, the Veteran was notified that the letter was sent in error and declined the additional hearing. As such, the appeal was adjudicated based on the September 2014 hearing transcript and other evidence of record. 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). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. In addition, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a right hip condition. 2. Service connection for a left hip condition. The Veteran is seeking service connection for a right hip condition and a left hip condition. He contends that he has a bilateral hip condition is due to carrying heavy loads and marching long distances while he was serving in Vietnam. See February 2012 lay statement. Initially, the current disability requirement is established for both the right hip condition and left hip condition claims. A January 2020 VA examination reflects a diagnosis of right hip and left hip osteoarthritis. The evidence of record also shows the occurrence of an in-service event or injury. The Veteran contends his current bilateral hip condition is due to the physical requirements of his duties, including carrying heavy loads and marching throughout Vietnam, during active service. See Board Hr’g. Tr. at 5-6. In this case, the Board finds that the Veteran is competent and credible to report what he experienced while in the military. Moreover, his testimony is consistent with the circumstances of his service, including combat service. The Veteran’s service records reflect an MOS of “infantryman,” and an award of a Combat Infantryman Badge. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the occurrence of an in-service injury to the Veteran’s right and left hips is established, particularly when reasonable doubt is resolved in the Veteran’s favor. Thus, the question becomes whether there is a nexus between the Veteran’s current osteoarthritis of the hips and his in-service injury. In this regard, the evidence of record includes the opinion of an examiner who provided an April 2019 VA examination and the opinion of an examiner who provided a January 2020 VA examination. The examiner who provided the April 2019 VA examination concluded that it is less likely than not that the Veteran’s right and left hip condition was incurred in or caused by the claimed in-service, event, or illness. She explained that the Veteran’s service treatment records include an August 1966 x-ray of the Veteran’s pelvis that was normal which was taken after he was struck by grenade fragments. She also noted that any complaints or treatment for a hip condition during service or within a year of separation from service are absent from the Veteran’s claims file. The Board remanded the claim in September 2019 as it determined the April 2019 opinion was not entirely sufficient as it did not consider the Veteran’s lay statements regarding the onset of pain. The Veteran underwent an additional examination in January 2020. The examiner also concluded that it is less likely than not that the Veteran’s right and left hip osteoarthritis was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that joint degeneration is a normal process of aging, and the Veteran is 70 years old. He also found significant that the Veteran’s osteoarthritis of the hip is only mild, and as such, he found it unlikely that it started during military service as the Veteran retired from military service over 50 years ago. The examiner also considered the fact that the Veteran did not complain about hip pain at the time of his separation from service in 1968, and stated that had his hip pain had its onset during service, there would be documented complaints prior to decades after service. The Board acknowledges the Veteran’s contention that his left and right hip condition is due to the physical rigors of combat service in Vietnam. However, the Veteran’s statements may not be used to establish a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the Veteran has no known or reported medical expertise, he is not legally competent to opine on a relationship between his bilateral hip condition and the physical rigors of his duties. As such, his opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. Consequently, the Board gives more probative weight to the VA opinions described above. The Board finds the opinions, cumulatively, to be persuasive, as they rely on expert knowledge and the Veteran’s medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Even if the earlier opinion was not entirely sufficient, when taken together, the opinions support that the Veteran’s right and left hip osteoarthritis is unrelated to the physical requirements of his duties, including carrying heavy loads and marching throughout Vietnam, during active service. In this regard, the April 2019 opinion relies on the normal x-ray of the Veteran’s pelvis in August 1966 and the examiner who provided the January 2020 provided the more likely etiology for the Veteran’s osteoporosis of the hip, i.e., aging, particularly in light of its mild severity. In addition, there is no similar medical opinion of record weighing in favor of service connection. In addition, because the Veteran has diagnoses of arthritis, which is one of the listed chronic diseases, the Board has carefully considered whether service connection is warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Federal Circuit in Walker, there are two ways to establish service connection for a chronic disease. In this case, there is no evidence that Veteran was diagnosed with arthritis during service. As such, it cannot be said that the chronic disease (arthritis) was established and not subject to legitimate question during service. Furthermore, there is no evidence reflecting arthritis to a compensable degree within one year of the Veteran’s separation from service. Rather, as noted above, the earliest complaint of hip problems is documented decades after the Veteran separated from service. Accordingly, in order to establish service connection, the Veteran must demonstrate a continuity of symptomatology. The Veteran has indicated that he has experienced hip pain in his since service. The Veteran is competent to report the presence of symptoms and frequency of treatment. Jandreau, 492 F.3d at 1377. However, the evidence of record does not support a continuity of symptomology as related to osteoarthritis of the hips. In this regard, the Veteran did not report hip pain at the time of a March 1991 VA examination. In addition, at the time of a February 2012 VA examination of the Veteran’s hips, there was no limitation of motion, objective evidence of pain, loss of strength, or any other symptoms found. Moreover, there is a gap of at least 40 years between the Veteran’s discharge from service and the first documented report of complaints related to hip pain in 2012. The Board will also address whether the Veteran is entitled to service connection for his osteoarthritis of the hips under a theory of secondary service connection, i.e., whether his osteoarthritis of the hips is secondary to his service-connected degenerative disc disease. In this regard, the evidence of record includes the opinion of the examiner who provided the January 2020 VA examination. The examiner concluded that the Veteran’s bilateral hip osteoarthritis is not caused by or aggravated by his service-connected degenerative disc disease. The examiner explained that degenerative disc disease does not cause osteoarthritis of the hips, and that the Veteran’s osteoarthritis of the hips is due to aging as it is common in those over 70 years of age, as in the case of the Veteran. He explained further that the Veteran’s osteoarthritis of his hips is most likely idiopathic and as such, is unrelated to his degenerative disc disease. The examiner also explained that the Veteran’s osteoarthritis of the hips is not aggravated by his degenerative disc disease. He stated that the Veteran’s hip osteoarthritis is very mild, which is not uncommon in those over 70 years of age, even without military service, and reiterated that osteoarthritis of the hip and degenerative disc disease are not related. The Board finds the opinion to be persuasive, as it relies on expert knowledge and the Veteran’s medical history. Nieves-Rodriguez, 22 Vet. App. at 304. In addition, there is no similar medical opinion of record weighing in favor of secondary service connection. As the preponderance of the evidence is against finding that a right hip condition and a left hip condition are caused by or aggravated by his service-connected degenerative disc disease. As such, service connection is not warranted for a right hip condition or a left hip condition based on the theory of secondary service connection. Finally, the Board notes that the Veteran is already service connected and compensated for the pain in the hips and pelvis. He is service connected for a right lower extremity condition of the sciatic nerve and a left lower extremity condition of the sciatic nerve as associated with his service-connected degenerative disc disease of the lumbar spine. In this regard, a March 2018 VA examination reflects a diagnosis of sciatic nerve radiculopathy which includes symptoms of intermittent pain that is mild for the right extremity and moderate for the left extremity. Thus, this is not a case where the scope of the claimed condition may be characterized more broadly or in a different form, as hip pain was specifically claimed, and potentially related symptoms are attributed to already service-connected conditions. Cf. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, under the direct, presumptive, and secondary theories of service connection, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for a right hip condition or a left hip condition. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.