Citation Nr: 21023022 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-29 134 DATE: April 19, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right hip disability is reopened. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for migraines is remanded. FINDINGS OF FACT 1. A February 2015 rating decision that denied service connection for a right hip was final; evidence received since that time is both new and material. 2. The preponderance of the evidence weighs against finding that the Veteran’s right hip disability is related to service, has been continuous since service, or manifested to a compensable degree within a year of service. 3. There is no current diagnosis of a left hip condition that was incurred in or caused by service. 4. Resolving all reasonable doubt in her favor, the Veteran’s tinnitus had its onset immediately after service and has continued since. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for service connection for a right hip disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a right hip condition have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.303(b), 3.309(a). 3. The criteria for service connection for a left hip condition have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.303(b), 3.309(a). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from September 2005 to April 2006. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the record. These matters come before the Board of Veterans Appeals (Board) on appeal from February 2015 and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran also perfected an appeal for PTSD under the Appeals Modernization Act (AMA) system. See February 26, 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Therefore, the PTSD increased rating appeal will be adjudicated under the AMA system in another Board decision. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. Despite determinations reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury incurred or aggravated during active service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309(a), to include arthritis and tinnitus, may be presumed to be service connected if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 1. Request to reopen a claim for service connection for right hip disability The RO denied service connection for a right disability in February 2015. This decision became final in March 2016. The evidence submitted after the February 2015 decision, including lay statements, post-service VA medical treatment records and a VA examination relates to unestablished facts necessary to substantiate these service connection claims and raises a reasonable possibility of substantiating the claim. Therefore, the Board finds that the claim should be reopened. 2. Entitlement to service connection for a right hip condition The Veteran contends that her right hip condition is related to service. Specifically, she contends that her right hip condition is related to an injury that occurred while running and or due to her in-service military sexual trauma (MST). Regarding the first Shedden element of service connection, a current disability, the Veteran was diagnosed with trochanteric pain syndrome, trochanteric bursitis, which the examiner noted is a soft tissue injury. Therefore, the Board finds that the first element of service connection has been met. Regarding the second element, an inservice incurrence in April 2018, the Veteran provided a lay statement describing an inservice incident while running along rocky terrain, in which she landed wrong and injured her right hip. She alternatively contends her MST caused her right hip injury. See April 2018 Lay Statement. Therefore, the Board finds that the second element of an inservice incurrence has been met. The question for the Board, therefore, is whether there is a nexus between the inservice event and her current right hip bursitis. In May 2018, the Veteran was afforded a VA examination regarding her right hip. In providing a negative nexus opinion, the VA examiner noted that her injury from 2005 was not documented in her Service Treatment Records (STRs), but she was seen for right hip pain twice in April 2006. In opining that there was no nexus to service, the examiner addressed the Veteran’s contention that her legs were held in a flexed internally rotated position during the MST in December 2005. The examiner reviewed the Veteran’s lay statement that one month after the MST, she was “‘paralyzed’ one morning with bilateral hip pain.” The examiner noted that she reported intermittent right hip pain during certain activities and in certain positions. The examiner noted she complained hip pain on April 19, 2006 and April 28, 2006, but no specific treatment was sought or provided. Her next treatment for hip pain was not until more than eight years later in October 2014 at the VAMC. The examiner noted that even though the Veteran was seen for complaints for right hip pain in April 2006, she also stated that she had not seen a physician, nor was she treated for her right hip complaints. VA records in July 2015 and August 2017 note a diagnosis and treatment for myofascial pain. The examiner noted that X-ray imaging performed on May 1, 2018 showed a normal hip and no right hip arthritis was noted. The examiner concluded that a normal right hip X-ray coupled with the physical examination findings supported a diagnosis of hip bursitis or soft tissue injury. The examiner opined that it was less likely than not that her bursitis was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the weight of medical literature does not support that a chronic soft tissue injury would persist from 2006 until 2015. The examiner opined that a nexus does not exist between her right hip bursitis and service. The Veteran testified at a February 2021 Board hearing that her right hip condition has gotten progressively worse and that she has right hip bursitis. The 2018 examiner had previously discussed the Veteran’s hip bursitis and noted that it is a soft tissue injury. Bursitis is defined as a temporary condition that causes painful swelling of the areas around a joint. See Bursitis, Merck Manual Professional Version, found at https://www.merckmanuals.com/home/bone,-joint,-and-muscle-disorders/muscle,-bursa,-and-tendon-disorders/bursitis. The Board notes that the Veteran is competent to report the symptoms of right hip pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran believes her right hip bursitis is related to service, she is not competent to provide a nexus opinion in this case, as the pathology of this condition falls outside the realm of common knowledge for a lay person. Although the Veteran has some nursing training as she currently works as a certified nursing assistant, she has not demonstrated medical expertise in the diagnosis of orthopedic injuries, such as the diagnosis and etiology right hip bursitis and whether it is related to service. See Jandreau, 492 F.3d at 1376-77. Consequently, the Board gives more probative weight to the May 2018 examiner’s opinion. The Board finds the May 2018 examiner’s opinion highly probative, as it is based on an accurate medical history, considered the Veteran’s lay reports, is supported by relevant medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, with respect to presumptive service connection for chronic diseases, the Board has considered whether there is competent credible evidence of continuity of symptomatology of any degenerative joint disease, such as arthritis, since service, or whether such manifested to a compensable degree within one year of separation; but finds that there is not. The Veteran has not been diagnosed with arthritis or degenerative joint disease of the right hip and her treatment records from separation to 2015 are silent for right hip treatment or diagnoses. Therefore, despite the Veteran’s lay statement of right hip pain since service, the presumptive service connection for chronic diseases is not for application as bursitis is not included as a chronic disease. See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a); see also Walker, 708 F.3d at 1338-40. The Board appreciates the Veteran’s sincere belief that her right hip disability is due to service, and there is no question that she experienced an in-service injury as contended. However, the greater weight of the evidence is against the Veteran’s right hip claim. Absent a competent opinion linking her current right hip complaints to an event, injury, or disease in service, service connection must be denied. The preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. For these reasons, the claim must be denied. 3. Entitlement to service connection for a left hip condition, to include as secondary to a right hip condition The Veteran contends that her claimed left hip condition is due a running injury and or MST while in service, or in the alternative, is secondary to her right hip condition. Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for secondary service connection claim are evidence of: (1) a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is not service connected for a right hip disability. Therefore, secondary service connection due to or aggravated by a service-connected right hip disability is unavailable. Nor has she argued that a left hip disability is related to her service-connected migraines or PTSD. The Veteran has not presented a competent opinion that a left hip disability is due to any of her service-connected disabilities. Thus, the Board finds that the preponderance of the evidence is against entitlement to secondary service connection for the left hip. Nevertheless, the Veteran can still advance a direct service connection theory of entitlement. In this case, the Veteran does not have a current diagnosis for her left hip or related condition that was incurred in or caused by service. Her STRs and post-service treatment records do not contain complaints, treatment, or diagnosis of a left hip disability or functional impairment in the left hip joint. Even though she credibly reported an in-service event that may have caused a left hip disability, she has not satisfied the first Shedden element of direct service connection—a current disability (or functional impairment in the joint). In April 2018, the Veteran provided a lay statement describing an incident while running long rocky terrain, in which she landed wrong and injured her right hip. She also related the details of an MST incident which caused an injury to both hips, the right more than the left. Although the Veteran believes an inservice incident, or her right hip condition caused a left hip disability, again, she is not competent to provide a diagnosis or nexus opinion. See Jandreau, 492 F.3d at 1376-77. The Board finds that in the absence of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as no current left hip diagnosis or functional impairment in the left hip joint exists, entitlement to service connection must be denied. 4. Entitlement to service connection for tinnitus. The Veteran contends that her tinnitus had its onset in service and her symptoms have continued since service. A February 2016 VA examination report confirms a diagnosis of tinnitus. In addition, although the Veteran’s service treatment records do not document any treatment, complaints, or diagnoses related to tinnitus, she has provided competent evidence of military noise exposure and an MST-related in-service head injury. The question before the Board therefore becomes whether there is a so-called “nexus” between the Veteran’s tinnitus and service. Although a favorable medical nexus opinion is generally necessary for a grant of service connection, no such opinion is needed if the disorder or condition for which service connection is sought is one that is recognized as a “chronic disease,” such as tinnitus, in 38 C.F.R. § 3.309(a). In these instances, service connection can be granted based upon evidence of a continuity of symptomatology. The Veteran has provided several statements regarding the onset of her tinnitus beginning immediately after service. Through her competent and credible statements and BVA hearing testimony, the Board finds that she has successfully shown continuity of symptomatology. The Board makes this finding despite a negative February 2016 VA medical opinion. This opinion essentially found that because there was no objective evidence of significant military noise exposure, service treatment records and separation examination were silent for the condition, it was less likely than not related to service. As noted, however, the Veteran has reported tinnitus since service. Indeed, at the time of examination, the Veteran specifically stated that she experienced tinnitus within a year of separation from service, and that it has continued since service. Thus, the Board finds that the positive and negative evidence is in relative equipoise. Finding all reasonable doubt in the Veteran’s favor, service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for migraines, also claimed as photophobia, is remanded. The Veteran contends that her service-connected migraine condition, also claimed as photophobia, is more severe than reflected by her initial rating of 30 percent. In February 2021, the Veteran testified that her symptoms related to her migraine headaches, also claimed as photophobia, have worsened since her last VA examination in February 2016. As the Veteran reported worsening symptoms, a new examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. 2. Thereafter, schedule the Veteran for an appropriate examination for an opinion on the current severity of her service-connected migraines, photophobia. (Continued on the next page)   The examiner is asked to note the extent to which migraines interfere with her ability to secure and maintain gainful employment, if at all. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.