Citation Nr: 21021423 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-17 555 DATE: April 13, 2021 ORDER Service connection for a right hip disability is denied. FINDING OF FACT A right hip disability was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to March 1976. In April 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2018 and December 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection 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) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Service connection for a right hip disability The Veteran contends that his currently diagnosed right hip disability had its onset in service following a right hip injury. Specifically, he explained during the April 2017 hearing that he injured his hip in service when he fell down a flight of stairs, but that he did not report the injury at the time because he was scheduled to go on leave for the birth of his daughter and he was afraid that he would be drug tested and not permitted to go home. He contends that he has continued to experience right hip symptoms in the years since service. A right hip disability was not diagnosed until many years after service, and there is no competent evidence to establish that any current right hip disability is due to any event or incident of the Veteran's period of active duty. Service treatment records are silent for complaints, treatment, or diagnosis of a right hip disability in service or at discharge. Post-service VA treatment records dated many years after discharge show the Veteran has current diagnoses of osteoarthrosis of the right hip and status post right total hip arthroplasty. See May 2012 VA surgery operative note and December 2012 VA orthopedic surgery note and December 2020 VA examination report. However, the evidence does not indicate that the diagnosed right hip disability is due to any event or incident of the Veteran's period of active duty. In this regard, a December 2020 VA examiner opined that the Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because there was no record of a fall in service, the Veteran’s reported right hip injury in service was acute only, it was more than 40 years before he reported problems with his hip again, the right hip symptoms are subjective only, and there is no evidence of chronicity of care. There is no contradictory medical opinion of record. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of a right hip injury at discharge and the decades-long gap between service and the first notation of right hip symptoms, the Board does not find the Veteran's accounts of right hip symptoms since service to be credible. As such, the Board finds the December 2020 VA examiner's opinion is supported, and another examination is not necessary. There is no evidence, VA or private, which indicates that the Veteran's right hip disability may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a right hip disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a right hip disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that right hip arthritis was initially shown more than one year after the Veteran's discharge from service. The Board acknowledges the Veteran's assertion that his right hip disability is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed right hip disability and his active service or events therein, as it would require medical expertise to say that the current right hip disability, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his right hip disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). For the reasons and basis stated above, the Board finds that service connection for a right hip disability is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.