Citation Nr: 21013219 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-24 688 DATE: March 9, 2021 ORDER Service connection for a right hip disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s right hip disability, status post hip replacement, is at least as likely as not related to the right hip pain and limitation of motion noted during his period of active duty service. CONCLUSION OF LAW The criteria for service connection for a right hip disability, status post right hip replacement, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to July 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board reopened the claim of service connection for a right hip disability and denied the reopened claim on the merits. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand that vacated and remanded the portion of the Board’s April 2019 decision that denied the claim for service connection for right hip disability. In September 2020, the Board remanded the case for further development which has been completed. 1. Service connection for a right hip disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection also may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran contends that he injured his right hip during service. He further contends that his current right hip disability was caused or aggravated by his service-connected bilateral knee condition. Service connection is in effect for left knee chronic synovitis with degenerative changes, and right knee chronic synovitis with chondrocalcinosis. The service treatment records show that in February 1976 the Veteran complained of pain in his hips for the past two months unrelated to activity. Muscle strain of the hips was noted. On a report of medical history completed by the Veteran prior to service separation in March 1976, he stated “I’m in poor shape because of the injury to my knees and hips. I’m always in pain.” The reviewing examiner noted chronic knee and thigh pain. The separation examination in March 1976 noted chondromalacia of both knees and decreased range of motion of both legs; no hip findings were noted. A Medical Evaluation Board Proceedings dated in April 1976 did not include a diagnosis of a hip condition. The associated Medical Evaluation Board Narrative Summary noted that the Veteran was seen because of complaints of the lower extremities. He complained of foot problems since childhood that had continued during military service. He also complained of knee pain from a fall the previous spring. He had no complaints concerning his hips. On examination, he had full range of motion of the hips. No diagnosis of a hip condition was included. The Physical Evaluation Board proceedings in May 1976 had no diagnosis of any hip condition. The Veteran was to be discharged from the service without entitlement to disability benefits. On VA examination in September 1976, the Veteran reported that he had been having “trouble with his hips, especially if he sits for a long period of time, and that, this has been going on for several months. If he gets up and starts walking after this develops then it will be 15 or 20 minutes of such activity before they start hurting. He says they have been worse with cold and wet weather than with warm and dry. He says the pain is very sharp.” On examination, “hips show limitation of motion. The right hip ‘has nearly full flexion and almost full external rotation range but only 10 degrees of internal rotation. Abduction is not remarkable. He cannot really cross his right leg over his left, lacking it by a considerable amount.” The examiner did not diagnose a right hip disability. On VA examination in April 1977, the Veteran reported that “started having pain in his hips he thinks in about 1975, or at least by then it became severe rather than just annoying. Left hip causes him more trouble than the right. Tried to do yard work one day but couldn’t. The knees simply wouldn’t stand it nor would the left hip.” On examination, “he has some limitation of motion of both hips with only about 5 degrees of internal rotation and 25 or 30 degrees of external rotation. All of these produce pain. He is almost able to cross one leg over the other but cannot quite make it and it causes severe discomfort. He has about a 5 degree flexion contracture both right and left hips.” X-rays of the pelvis and both hips were negative. The examiner diagnosed limitation of motion of both hips, developmental; the examiner stated that “the only reasonable diagnosis” was that the limitation of motion was a “developmental variation from so-called ‘normal.’“ A February 2000 treatment record noted that the Veteran reported chronic pain of the knees and hips, worse at the end of the day. He reported he was still doing heavy physical labor, with heavy lifting. An April 2001 treatment record noted the Veteran reported that he was “in excellent health until he joined the Army in 1975. Through the rigors of basic training, such as rapidly falling to the ground for rifle practice, the patient developed chronic pain initially in his knees and subsequently in his hips. Since the late 1970s, the patient has had knee and hip pain on a daily basis.” In May 2010, X-rays showed mild to moderate degenerative changes in the hips. In April 2012 the Veteran underwent right hip total arthroplasty. A VA examination was conducted in October 2020. The Veteran reported that he that he was seen for his hip pain in basic training when he complained of pain in his hips and knees. He reported having continued hip pain after service, noting that he would just “suck it up” for 30 years as he was self-employed. He would take jobs that he could do and would contract out things that he could not do which he did not make as much money on. He continued having right hip pain and then was told he needed a hip replacement. He stated that he continued to have right hip pain with difficulty walking or carrying anything. The examiner opined that the Veteran’s current right hip disability was not related to his inservice complaints: There is no evidence that this patient’s right hip degenerative joint disease which resulted in right total hip arthroplasty was related to his time in active service. Had this patient suffered an injury to his right hip during active service then he would have developed posttraumatic degenerative changes within the next 10-15 years after discharge from active service however, his degenerative changes were not noted until 2010 which is nearly 25 years after discharge from active service. The patient had a little more than 1 year part of which he was on a profile for no running while on the other hand he had 25 years of physically labrous work causing him low back pain hip pain and knee pain and patient was looking to get out of that line of work due to the impact this was having on his body. The examiner also opined that the right hip disability was not caused or aggravated by the Veteran’s service connected left and right knee disabilities. The Veteran’s attorney submitted a private medical opinion from D.B.M., Jr., M.D., in February 2021. After he reviewed the record and interviewed the Veteran, Dr. M. provided an opinion that: It is my medical opinion that it is at least as likely as not that the Veteran’s present bilateral hip condition is the direct result of injuries he sustained while on active duty… [The Veteran] stated that part of their training every day involved going out into the field and participating in fire drills. He and his platoon would be running as hard as they could and when the “gun fire started coming at them” they would be commanded to hit the ground. They hit the ground landing first on the front of their knees, then rolling over/twisting either to their right or left sides, striking their elbows on the ground to stabilize themselves, and finally assuming a prone position with their weapon ready to be fired. The ground could consist of dirt, rocks, tree branches etc. as they were typically out in the forest. The intermittent pain in his hips was located in the groin and the front of his hips, and could be either sharp or aching in nature. Once his hip pain became more pronounced, he would usually experience pain in both hips most days, and the average pain was 5/10 but would escalate during and after the fire drills. His hip pain would also be rooted over the outside of his hips i.e. the greater trochanteric areas… The examiner noted the Veteran’s post-service work history: 1977 - 1978: The Veteran initially worked about a year for the United States Fish and Wildlife department, and this job was not physically demanding. They would ride in a van out to a specific wildlife preserve and then travel on three wheel motorcycles throughout the preserve checking for various things. The Veteran worked as part of a six man crew who just did framing. A 2 x 4 that was 8 feet in length weight at most 3-4 pounds. Whenever there was anything heavy that had to be moved there would be several members of the team that would work together. The Veteran literally did no heavy lifting or carrying as part of his framing job. From 1982 - 1993, the Veteran was self-employed doing repair work through his church. This involved plumbing, painting, electrical work etc, but nothing that was physically demanding. From 1993 - 1996, the Veteran “flipped” houses for a profit. Anything that was physically demanding such as putting in new floors etc. would be subcontracted out. The Veteran again was limiting his work to plumbing, electrical etc. He estimated that approximately 90% of the work was subcontracted out but he could still make a reasonable living. From 1996 - 2014, he was self-employed doing cleanups of vacated buildings such as foreclosures etc. Again, he subcontracted out any heavy work to protect his knee and hip conditions, From 2014- 2019, the Veteran worked in house cleaning at a VA facility in Portland, Oregon. After a room became vacant, his job was wiping down surfaces and making beds. He did not have to do any of the more physical demanding cleanup work. In 2019 the Veteran retired. The Veteran stated that despite having sedentary work over the decades his bilateral hip pain progressively worsened. He has always utilized Ibuprofen and Aspirin to help mitigate his bilateral hip and knee conditions. The Veteran stated that he has never had health insurance but avoided going to a VA facility until approximately 2000. He did not have the time to take off from work and he preferred to use OTC medicine for combating his hip and knee pain. Throughout the 2000’s, his bilateral hip pain progressively worsened particularly his right hip. In 2008, one of his treating physicians at the VA told him that he needed a total hip arthroplasty. In April 2012, the Veteran underwent a right hip replacement… Based on the orthopaedic literature and the undersigned’s 54 years of Orthopaedic Surgery clinical experience, it is my medical opinion that the Veteran’s bilateral hip conditions started out as a synovitis (inflammation of the joint lining) secondary to the repetitive injuries throughout every day during the 12 weeks of Basic Training/AIT. As noted, the Veteran stated that the entire platoon would be running “all out” through the forest, etc., and once the command was given and the “live fire” began, the Veteran had to throw himself down on the ground. As noted, the initial contact with the ground was the front of both flexed knees. The significant impact occurred with the knee flexed i.e. the knee joints did not absorb any of the mechanical forces. Instead, the impact involved the front of the knee (patellofemoral area) and this placed the direct mechanical forces against the end of the femurs. The entire compressive forces created by the weight of the individual combined with the speed that he was running were then transmitted directly thru the femurs and into the hip joints. This repetitive trauma occurred throughout the day, every day, for 12 weeks! It is well-known among Orthopaedic Surgeons that inflammation of the joint lining (synovitis) causes pain, swelling, and loss of joint motion depending on how severe the injuries are. In the case of the Veteran, he developed a chronic synovitis from the repetitive insults to the hip joints. His symptoms became so severe that he began experiencing some of the classic late stage symptoms of pain with prolonged sitting, as well as the classic referred pain to the greater trochanteric areas (the bony prominence on the outside of the hip joints). The pain associated with prolonged sitting in particular represents a symptom associated with late stage injury to the hip joint i.e. his pain occurred even when non-weightbearing. Unfortunately, because no diagnostic test were ever initiated the precise etiology of his hip pain would never be known. It is my medical opinion that it is at least as likely as not that the repetitive direct trauma to the Veteran’s hip joints resulted in a direct injury to the joint surfaces i.e. the initiation of traumatic arthritis. Unfortunately, once the protective surfaces of a lower extremity weight-bearing joint is initiated, the activities of daily living will serve to exacerbate and accelerate the traumatic deterioration of the joint. It is obvious that at the time of the Veteran’s discharge from the military that his bilateral hip conditions were serious. He had a severe loss of motion in both hips as well as significant bilateral hip pain at 20 years of age. Post military, his overall life activities did not involve physically demanding work in general. He protected his knees and hips as noted in the Medical Interview with the undersigned. He would contract out the heavy work associated with cleaning up a vacated building. Specifically, the Veteran stated that he would typically contract out 90% of his work but could still have a profit margin to reasonably live on. Despite this, his bilateral hip condition continued to progressively worsen as documented in the April 2001 Rheumatology Consult. Between 2001 and 2008 his symptoms increase so dramatically that his VA healthcare provider in 2008 recommended a right total hip replacement. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current right hip disability, status post hip replacement, is related to his inservice findings of right hip pain and limitation of motion. The February 2021 private opinion from an orthopedic surgeon included an in-depth rationale pointing out the mechanics of how the Veteran’s right hip complaints in service and shortly thereafter were likely evidence of a right hip injury in service that continued to cause him pain over the years and eventually required hip replacement. The negative VA opinion and rationale is also equally persuasive. Accordingly, after resolving all doubt in favor of the Veteran, service connection for a right hip disability, status post hip replacement, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.303. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.