Citation Nr: 21021160 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-11 894 DATE: April 12, 2021 ORDER Entitlement to service connection for degenerative arthritis of the right hip is granted. Entitlement to service connection for degenerative arthritis of the left hip is granted. FINDINGS OF FACT 1. The Veteran has been diagnosed with degenerative arthritis of the bilateral hips. 2. The evidence is at least in equipoise as to whether the Veteran has demonstrated a continuity of symptomatology of degenerative arthritis of the bilateral hips since the time of his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the right hip have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for degenerative arthritis of the left hip have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1980 to January 1997. This matter originates from a June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for right hip degenerative arthritis, status post hip replacement and left hip degenerative arthritis (bilateral hip arthritis). These matters were previously before the Board of Veterans’ Appeals (Board) in March 2019, June 2020, and November 2020; the Veteran’s claims were remanded for additional development each time. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11Vet. App.268, 271 (1998). As the Board is here granting the instant claims in full, no analysis of compliance with its November 2020 remand directives is necessary. Service Connection Entitlement to service connection for degenerative arthritis of the bilateral hips is granted. The Veteran seeks service connection for his bilateral hip arthritis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Arthritis is among those disabilities for which VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). March 1993 and October 1996 treating provider notes in the service treatment records (STRs) reflect complaints of hip pain. A January 1998VA examination reflects complaints of hip pain, and x-ray findings of bilateral osteophytic formations of the superior acetabular rim. September 2013 private treating records reflect radiological diagnoses of osteoarthritis of the bilateral hips. A May 2015 VA examiner noted that the Veteran was status post total right hip replacement. In August 2020 a VA examiner stated that the Veteran has a diagnosis of bilateral hip degenerative arthritis and osteophytic formations. At his September 2018 Board hearing the Veteran testified that during his active service he participated in over 80 parachute jumps; specifically, 80 logged jumps, with additional unlogged jumps during Ranger training, and multiple unlogged practice jumps (from approximately a 5 foot height) associated with every logged and unlogged parachute jump. The Veteran also testified that the jumped carrying heavy radio equipment and that, in addition to his parachute jumps, he frequently performed ruck marches carrying heavy loads. The Board finds the Veteran’s testimony as to the circumstances of his service credible and consistent with his military personnel records, which reflect his service as a signal officer and the award of a master parachutist badge and a Ranger tab, as well as training as a jumpmaster. Entries in the Veteran’s service treatment records (STRs) dated March 1993 and October 1996 reflect complaints of bilateral hip pain. In January 1998, VA treating providers documented the Veteran’s report of a history of hip pain and ordered x-rays showing osteophytic formations of the bilateral hips. Private treating provider notes dated December 2014 and October 2015 reflect complaints of right and bilateral hip pain. VA examinations and opinions as to the relationship between the Veteran’s in-service parachute jumps and his current bilateral degenerative hip arthritis were obtained in February 2016, October 2019, and August 2020. The flaws in these opinions have been discussed in prior Board remands, and the Board thus considers them to be of minimal probative value as to the question of whether a nexus exists between the Veteran’s active service and his current bilateral hip disability. Pursuant to the Board’s November 2020 remand, another VA opinion was obtained in December 2020. The Board also finds this opinion to be of minimal probative value. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Laypeople are competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Notwithstanding the Veteran’s competency to report his symptoms, his reports of symptoms were discounted by the examiner, who stated that “there is a lack of chronicity of objective medical evidence noted available medical records confirming the chronicity of a chronic hip condition while on active duty.” In addition to improperly discounting the Veteran’s lay statements, the examiner’s opinion also does not reflect acknowledgment or discussion of the Veteran’s March 1993 and October 1996 in-service complaints of bilateral hip pain, or of the wife’s hearing testimony as to observing his hip complaints from service to the present time. The Board finds that the evidence is at least in equipoise as to whether the Veteran has demonstrated continuity of symptomatology of bilateral hip degenerative arthritis since the time of his service and throughout the period on appeal. In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, 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. Here, the 1998 examination, shortly after separation from service, notes hip complaints. The Board finds that this tends to corroborate the lay statements as to continuous symptoms. Moreover, as arthritis is a chronic disease under 38 C.F.R. § 3.309(a), service connection may be awarded based solely on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Accordingly, the Board concludes that the criteria for entitlement to service connection for degenerative arthritis of the right and left hips have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.