Citation Nr: 21024183 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-38 668A DATE: April 22, 2021 ORDER Entitlement to service connection for a right hip disorder, characterized as degenerative joint disease, to include as due to a service-connected low back disability and/or a left hip disorder, is denied. Entitlement to service connection for a left hip disorder, characterized as osteoarthritis, to include as due to a service-connected low back disability and/or a right hip disorder, is denied. FINDINGS OF FACT 1. The Veteran’s right hip disorder, characterized as degenerative joint disease, was not shown in service or for many years thereafter and is otherwise not related to service, to include as due to a service-connected low back disability and/or a left hip disorder. 2. The Veteran’s left hip disorder, characterized as osteoarthritis, was not shown in service or for many years thereafter and is otherwise not related to service, to include as due to a service-connected low back disability and/or a right hip disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disorder, characterized as degenerative joint disease, to include as due to a service-connected low back disability and/or a left hip disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a left hip disorder, characterized as osteoarthritis, to include as due to a service-connected low back disability and/or a right hip disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to April 1975. He has additional service from April 1975 to September 1976, which has been characterized as dishonorable for VA purposes. These matters return to the Board of Veterans’ Appeals (Board) following the issuance of Board remand orders in October 2020 and November 2019 which directed the Regional Office to complete additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection may be established for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for a right hip disorder, characterized as degenerative joint disease, to include as due to a service-connected low back disability and/or a left hip disorder 2. Entitlement to service connection for a left hip disorder, characterized as osteoarthritis, to include as due to a service-connected low back disability and/or a right hip disorder The Veteran is seeking service connection for disorders of both the right and left hips. Specifically, he asserts that his right hip was injured in service during an October 1974 Tae Kwon Do tournament, and that his left hip is generally related to service and/or his service-connected low back disability or right hip disorder. As an initial matter, the Board notes that the Veteran has received a diagnosis of degenerative joint disease in the right hip, and osteoarthritis of the left hip. However, after a review of the evidence, the Board finds that service connection is not warranted for either the Veteran’s right or left hip disorders. The Veteran’s service treatment records do indicate that he was treated for an injury of his right hip in October 1974. However, the treatment note indicates that there were no detected fractures or bony pathology found following imaging. The Veteran underwent a periodic examination in June 1975 and reported that he was in good health, the examination also indicates right hip pain with clicks, it is not clear whether this note referred to an ongoing condition or simply one that had been diagnosed in the past. There are no service treatment records indicating ongoing treatment for the Veteran’s right hip during the time following October 1974. At the Veteran’s August 1976 separation examination, the Veteran noted right hip pain which had increased, however, he indicated he was in good health and there was no indication of a diagnosed right hip disorder, including degenerative joint disease. The first post-service treatment for a right hip disorder is noted in September 2010 whereat the Veteran reported hip pain, but no diagnosis was endorsed, and examination resulted in normal findings including for his soft tissue. The Veteran’s left hip osteoarthritis was not diagnosed until 2019, and there is no evidence of treatment prior to then. An October 2010 medical treatment note indicates some “popping” in the right hip which the treating physician indicated probably represented “snapping hip syndrome”, however, a diagnosis such as this has never been verified, in fact, no physician who has examined the Veteran since October 2010 has endorsed such a diagnosis. The Veteran’s right and left hip disorder diagnoses were made decades following separation from active service, as such, a continuity of symptoms is not shown based on the clinical evidence. As an initial matter, the large gap in treatment for the asserted conditions, approximately 34 years for the right hip, and 43 for the left, weighs against the Veteran’s claims. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of hip symptoms since service. In this regard, while he is not competent to make a specific diagnosis in relation to any of these claims, as they may not be diagnosed by their unique and readily identifiable features, and thus requires determinations that are “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, for the same reasons stated above, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless inconsistent, given the large gap between the Veteran’s discharge and when he first sought medical treatment for his hip disorders . See Walker, 708 F.3d at 1331. Further, the Veteran filed multiple claims between 1973 and 1982 for VA education benefits prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. As such, continuity of symptoms cannot be established based upon the available evidence of record. Although the Veteran is not competent to diagnose or provide etiological opinions related to his hip disorders, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms In this regard, the Board places significant probative value on the opinions of the VA examiners who have proffered opinions and performed examinations of the Veteran during the pendency of his appeal. The Veteran was provided with VA examinations in February 2014 and May 2019 whereas his right hip was solely examined as a left hip disorder had not been diagnosed or endorsed. Addendum opinions were sought in November 2020 and January 2021 following Board remand orders, both opinions spoke to the Veteran’s right and left hip disorders. The Veteran underwent an examination in January 2020; however, this examination has been determined by the Board in a previous decision to be inadequate for the purposes of adjudication and hence, will not be considered in this decision. At the February 2014 examination, the Veteran reported pain and flare ups resulting in increased pain, impaired range of motion, and not being able to walk. The Veteran reiterated his in-service injury and an in-service screening for crepitus (which was not found upon imaging in service). The examiner opined that while the Veteran had an in-service injury and treatment for said injury, that it appeared to be acute and resolve by his separation from service. Additionally, the examiner noted that imaging in service did not demonstrate any fractures or bony pathology, and that the Veteran had no further treatment documented before 2010. In conclusion, the examiner opined that the Veteran’s hip disorder was less likely than not related to active duty service, noting that the Veteran’s current right hip disorder is more recent and was unlikely to be the result of trauma as far back as 1974. Next, at the May 2019 examination the Veteran reported hip pain with occasional flare ups resulting in increased pain and further loss of range of motion. He reported that during service, he was stretching and felt a severe pop and since then he has experienced hip and low back pain. The examiner found that the Veteran’s symptoms were solely subjective and that the objective examination was normal with no evidence of a chronic condition. The examiner noted that it was impossible to determine if the right hip pain experienced by the Veteran was related in any way to his active duty service. Next, the physician who authored the November 2020 addendum opinion noted that the Veteran was only treated for a right hip injury during active duty, and that a left hip disorder was not shown. The author noted that the Veteran’s in-service imaging did not result in diagnoses and showed that the Veteran’s hips were within normal limits. The author noted that the Veteran is currently diagnosed with degenerative joint disease and that it was not related to service, as his in-service evaluation did not show any evidence of disruption to the articular surface of the joint at the time of the October 1974 injury. The author attributed the Veteran’s hip degenerative joint disease to the natural aging process. The author continued by noting that there was no orthopedic literature to suggest that an injury to one joint would have a significant impact on another or the opposite uninjured joint unless said injury cause major muscle or nerve damage. The author noted that because there was no Trendelenburg gait documented that there could be no causal or aggravated nexus established between the Veteran’s right or left hip disorders and his low back disability or hip disorder of the opposite side. Finally, the RO sought an addendum opinion in January 2021 to evaluate the Veteran’s right and left hip disorders in accordance with a Board remand order. The physician who authored the opinion indicated that there was no nexus established between the Veteran’s hip disorders and his active duty service, and that there was no evidence to support secondary service connection via either the Veteran’s low back disability or opposite hip disorders. The author indicated that the Veteran’s in-service hip injury was only documented for the Veteran’s right hip, and that there were no signs, symptoms, or treatment for a left hip disorder or injury. The author noted that imaging taken at the time of treatment (October 1974) showed that the Veteran’s hips were within normal limits, and that there was no indication of disruption of the articular surface of the right hip joint at the time of injury. They also noted that the Veteran’s right hip was documented to be within normal limits following imaging in 2010. In discussing the potential of a secondary cause or aggravation by another disorder, the author noted that the lack of a Trendelenburg gait led them to conclude that neither of the Veteran’s hip disorders could be linked either via cause or aggravation to his low back disability or the opposite-side hip disorder. The author noted that there was no orthopedic literature that established such a link in the absence of a significant muscle or nerve injury, and the Veteran has neither. Overall, it was opined by the author that the Veteran’s bilateral hip disorders were more likely than not due to the aging process and not due to an in-service injury or another disability or disorder. Further, the Board notes that the appellant has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and bilateral hip disorders. Given the above discussion and evidence, the Board must deny service connection for the Veteran’s right and left hip disorders. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his hip disorders to his active duty service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his hip disorders. See Jandreau, 492 F.3d at 1377, n.4. Although a veteran can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. Id. Thus, to the extent that the appellant believes that his hip disorders are related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. Accordingly, the Board concludes that the preponderance of the evidence is against the appellant’s claim for service connection for right and left hip disorders and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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 B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Attorney Advisor