Citation Nr: 21015317 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-30 047 DATE: March 17, 2021 ORDER Entitlement to service connection for a right hip degenerative joint disease and femoral acetabular impingement syndrome is denied. FINDINGS OF FACT 1. At the time of the Veteran’s enlistment examination, a normal musculoskeletal evaluation and a normal lower extremity evaluation were reported. 2. The evidence does not clearly and unmistakably show that femoral acetabular impingement syndrome preexisted the Veteran’s entrance to service. 3. The most competent evidence of record does not support a finding that the Veteran’s right hip disorder at least as likely as not had its onset during service, was caused by his service, or that his right hip disorder manifested to a compensable degree within one year of separation from active service. 4. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s right hip disorder proximately due to, or chronically aggravated by his service-connected right knee strain. CONCLUSION OF LAW The criteria for establishing service connection for right hip degenerative joint disease and femoral acetabular impingement syndrome have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2001 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in December 2018 and December 2020. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in February 2017. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the February 2017 Board hearing is no longer employed by the Board. In September 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the February 2017 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for a right hip disability is denied. The Veteran contends that he injured his right hip during his active service or, alternatively, contends that his right hip disability is secondary to his service-connected right knee strain. See February 2017 Board hearing transcript. Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304 (b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). VA’s Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is “more or less stationary in nature”, while a disease is capable of “improving or deteriorating.” See VAOPGCPREC 82-90 at para. 2. The presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). However, if it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396. VA’s Office of General Counsel has confirmed that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App at 394. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). Turning the relevant evidence of record, the Veteran was provided a right hip x-ray in October 2012, which demonstrated no fracture or acute bony pathology. The soft tissue and bony pelvis were unremarkable. There was no significant joint space narrowing. There was a small amount of spurring at the superior aspect of the right femoral head/neck junction. The Veteran was provided a VA examination in March 2018. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he injured his right hip in 2005 when he fell approximately 20 feet. The VA examiner diagnosed the Veteran with femoral acetabular impingement syndrome and degenerative arthritis. The VA examiner opined that the Veteran’s right hip impingement syndrome has a congenital etiology. The Veteran was provided a VA examination in January 2020. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner diagnosed the Veteran with right hip osteoarthritis and femoral acetabular impingement syndrome. The Veteran reported that he fell fifteen feet during his active service and injured his right leg and that since his separation from active service he has not had any evaluation for the right hip. The VA examiner opined that the Veteran’s right hip disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner explained that the Veteran’s right hip disability appears to be a congenital defect or deformity, which is structural and essentially unchanged. An additional VA medical opinion was provided in December 2020. The VA examiner reviewed and summarized the record and opined that the Veteran’s femoral acetabular impingement syndrome is a congenital disease since it has the capacity to deteriorate and lead to arthritis and further disability. The VA examiner further opined that it is less likely than not there is a superimposed disease or injury during active service. As rationale, the VA examiner noted there is no record of chronic or recurrent hip problems beginning in service. The VA examiner noted that the November 2005 incident occurred, however, there was no permanent residual or chronic disability subject to service connection. The Board finds that the preponderance of the evidence does not support finding a nexus between the Veteran’s service and his current disability. Furthermore, the Board finds that the evidence does not support a finding of clear and unmistakable evidence that there was a preexisting injury prior to service that was not noted on the Veteran’s entrance examination. The medical evidence of record indicates that the Veteran was first diagnosed with this condition in March 2018. An October 2012 x-ray was unremarkable. However, a March 2018 x-ray demonstrated femoral acetabular impingement syndrome and degenerative arthritis. The Board initially finds that the presumption of soundness has not been rebutted regarding whether the Veteran’s femoral acetabular impingement preexisted service. As noted above, the first indication of femoral acetabular impingement is March 2018, twelve years following his separation from active service. As such the Board does not reach the question of whether the Veteran’s femoral acetabular impingement is a disease or defect and the Veteran is found to be sound at entry as to this condition. Additionally, the only medical evidence in the claims file discussing the etiology of the Veteran’s right hip disorder are the January 2020 and December 2020 VA opinions, which concluded that it was less likely than not that the Veteran’s right hip disability was incurred in or caused by his active service. The December 2020 VA examiner noted there is no record of chronic or recurrent hip problems beginning in service. The VA examiner further noted that the November 2005 incident occurred, however, there was no permanent residual or chronic disability subject to service connection. As the evidence of record does not establish in-service incurrence of a right hip disorder or a nexus between the Veteran’s current right hip disorder and his active duty service, service connection on a direct basis is not warranted. Service connection is also not warranted for a right hip disorder as secondary to a service-connected right knee disability. In that regard, the January 2020 VA opinion concluded that it was less likely than not that the Veteran’s current right hip disability was aggravated by his service-connected right knee disability. The examiner explained that there is no known pathophysiologic mechanism by which a knee strain would aggravate a hip problem. The examiner further explained that a knee strain is relatively mild and would not be expected to cause any compensatory changes resulting in a hip condition. The Board acknowledges that the Veteran reported that he believed his right hip pain was due to his right knee strain. Lay statements are competent evidence to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the January 2020 VA examiner acknowledged the Veteran’s reports of knee pain, which were found to be credible, but explained that there is no known pathophysiologic mechanism by which a knee strain would aggravate a hip problem. In this case, while the Veteran is competent to report observable symptoms, his opinion as to the cause of his symptoms simply cannot be accepted as competent evidence, as he does not have the medical training and expertise required to make such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Accordingly, the Board affords the January 2020 VA opinion more probative value than the Veteran’s lay statements as to the etiology of his right hip disorder. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a right hip disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.