Citation Nr: 21026459 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-09 662 DATE: May 3, 2021 ORDER Entitlement to service connection for a right hip disability, as secondary to service-connected orthopedic disabilities, is granted. Entitlement to service connection for a left hip disability, to include as secondary to service-connected orthopedic disabilities, is denied. FINDINGS OF FACT 1. The Veteran's right hip disability proximately is due to his service-connected orthopedic disabilities. 2. The Veteran's left hip disability is not secondary to service-connected orthopedic disabilities; and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability, as secondary to service-connected orthopedic disabilities, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for a left hip disability, to include as secondary to service-connected orthopedic disabilities, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)(b), 3.307(a)(3), 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A Board hearing was conducted at the RO in Denver, Colorado. A transcript of this hearing is contained within the electronic claims file. The Board most recently addressed these claims in an August 2020 decision. The Board remanded the claims so that VA could obtain secondary opinions to determine if the Veteran's bilateral hip disability is related to his service-connected low back disability. In October 2020, VA obtained the necessary opinions (discussed below), so the Board finds that VA substantially has complied with the prior remand directives. Thus, adjudication of these claims may proceed. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran maintains that, due to either his in service removal of a cyst or his service-connected back problem, he has developed hip problems. August 19, 2016, Hearing Transcript (Tr.) at 14. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Service treatment records (STRs) show that, in September 1987, the Veteran underwent an excision of a pilonidal cyst on his coccyx area, which produced residual pain and discomfort sitting post-operatively. Post-service private treatment records from September 2003 include an x-ray of the right hip, which showed lateral uncovering of the femoral head consistent with mild acetabular dysplasia. An October 2012 note contains an MRI report that shows moderate arthritic changes of the right hip with some lateral uncovering. Diffuse degenerative labral pathology was identified with small associated right hip effusion. There were mild to moderate degenerative changes in the left hip. The Veteran underwent a right hip arthroplasty in March 2013. A two-month follow-up reveals that the Veteran suffered from stiffness when he sat for too long or walked for an extended period; examination revealed good range of motion. Right hip flexion was intact to resistance but a little weaker than the left side. A February 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner noted only the Veteran's right hip arthroplasty (in 2013) and osteoarthritis (since 2003). In October 2016, the Veteran supplied VA with a letter from a private physicianDr. C.S.who stated that the Veteran's long-standing lower extremity issues are "directly related the multiple injur[ies] he sustained while on active duty." A separate November 2016 letter from the Veteran's orthopedist, Dr. C.L., states, in pertinent part, the following: I had a fairly frank discussion with [the Veteran] today and told him that it's possible his lower extremity issues may have contributed to deterioration of his right hip; however, without definitive trauma to the hip joint itself, it's hard to make this connection. There's no question that all of these issues probably contributed, but I will leave this up to his primary care providers to make that ultimate determination. A September 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner noted degenerative conditions in both hips. An etiological opinion for the left hip stated the following: The Veteran's records do not contain any STRs which reference complaint, treatment, or onset of any left hip condition during the service years 19841989 or within a year of discharge. Mild left hip DJD was noted on x-rays today, but mild DJD is not an unexpected finding in a 57-year-old man who was previously noted to have cam deformities of the bilateral hips. Cam deformities are congenital and essentially guarantee the development of DJD in mid to late life. A nexus has not been established. A secondary opinion was obtained in October 2019, but the Board previously determined that the opinion was inadequate, so it herein will not be discussed. Pursuant to the Board's latest remand, VA obtained in October 2020 another opinion. With respect to the bilateral hips, the examiner stated the following: There is no established medical nexus for the etiology of the Veteran's bilateral hip condition due to the low back condition, to include alteration in gait. The Veteran was noted to have a slightly antalgic gait on an orthopedic exam at Kaiser dated 10/11/12. S/P right hip replacement surgery, a Back DBQ exam dated 05/06/13 noted back muscle spasm severe enough to cause an alteration in gait. The Veteran was noted to have an antalgic gait due to his foot an ankle condition on the VA Podiatry exam dated 05/19/16. Subsequent VA medical exams since 2016 have noted a normal gait. A review of the medical literature does not support development of DJD of the hip in the absence of a severely impaired gait in association with a leg length discrepancy in the 2-3 cm range. There is no established medical nexus for the bilateral hip condition due to the low back condition Separate direct and secondary opinions regarding the Veteran's left hip were obtained. The former states that The Veteran experienced [a] lumbar strain during service. There is no record of any associated left hip issues related to lumbar strain during service. Mild degenerative changes of the left hip were noted on MRI in 2012, and the Veteran first noted left hip pain in 2019, approximately 30 years after service. There is no established medical nexus. The secondary opinion noted that The Veteran's diagnosed left hip condition, degenerative arthritis of the hip, has no anatomic or pathophysiological relationship to the SC Back condition, Lumbar strain, Spondylosis and Scoliosis. Degenerative arthritis of the hip is related to aging and the gradual wearing out of the cartilage lining the hip joint. A review of the medical literature does not support an etiology due to the back condition to include Lumbar strain, Spondylosis and Scoliosis. In addition, the Veteran was diagnosed with Obesitya major contributor to the development of hip pain and DJD due to the additional stress on a major weight bearing joint. In March 2021, the Veteran submitted an opinion from Dr. D.M. who believes that the Veteran's right hip condition is the "direct result of the decades long chronic antalgic gait where he favored his left lower extremity and overloaded his right lower extremity." Dr. D.M. continued: "The chronic abnormal mechanical forces that change the center of gravity when the [V]eteran was weight-bearing resulted in a permanently exacerbated of his cam-femoral acetabular impingement." Dr. D.M. goes on to cite various medical entries that document the Veteran's antalgic gait, both due to his service-connected back and feet. Dr. D.M. also discusses multiple pieces of medical literature that support his opinion that altered gait can cause an accelerated deterioration in certain joints, such as the hip. 1. Entitlement to a right hip disability, as secondary to service-connected orthopedic conditions, is granted. The Board acknowledges that Veteran has a degenerative condition in his right hip and that he is service connected for various orthopedic conditions including the back and feet. Thus, the first and second elements of secondary service connection have been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. With respect to the third element of secondary service connection, the Board finds the evidence of record to be in relative equipoise. Both the October 2020 VA examiner and Dr. D.M. come to opposite conclusions regarding whether altered gait could have caused or aggravated the Veteran's right hip condition. The former opinion cites sources to support the opinion that degenerative changes are linked to aging and the wearing of the cartilage lining, as well as the fact that the veteran has been diagnosed as obese; however, the latter opinion discusses how the Veteran's documented altered gait (due to service-connected conditions) shifts the focal center of gravity on weight-bearing, causing accelerated deterioration of the right hip joint due to favoring of the left side. Dr. D.M. also cited and discussed numerous medical sources to support his opinion. The Board cannot say that either opinion is any more well-reasoned or supported than the other, and the Board is prohibited from making its own medical judgments/determinations. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). In such circumstances, the Board must find that the evidence is in relative equipoise and resolve all reasonable doubt in the Veteran's favor. Thus, the Board finds that the third element of secondary service connection has been established, and his appeal on this issue is granted. See Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to a left hip disability, to include as secondary to service-connected orthopedic conditions, is denied. The Board accepts that the Veteran has a degenerative condition of the left hip; however, that diagnosis was not rendered within one year from separation from service, so presumptive service connection for a chronic condition is not appropriate. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran likewise did not experience left hip pain since service and into the present until a diagnosis of a left hip degenerative condition was rendered. Thus, the application of presumptive service connection for continuity of symptomatology also is inapplicable. See 3.303(b). Returning to the principles of direct service connection, the Board recognizes that, at the hearing, the Veteran testified that the removal of his cyst caused him to sit and lean to one side, causing his hip problems. Tr. at 14. The Board recognizes that the Veteran had during service a cyst removed on his coccyx, so the second element for direct service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The medical opinions for direct service connection are the ones rendered by Dr. C.S. and the VA opinions from September 2019 and October 2020. The Board affords the former opinion no probative value. Dr. C.S. simply states that the Veteran's lower extremity issues were caused by his injuries in service. Dr. C.S. does not identify which issues of the lower extremities to which he refers, and the same applies for the noted in-service injuries: he does not disclose which injuries he references. At best, Dr. C.S.'s letter is riddled with ambiguity and does not aid the Board in answering the present question before it. The VA opinions note that the Veteran did not have any documented condition of the left hip while in service. Furthermore, mild degenerative changes, such as those in the Veteran's left hip, are not uncommon for someone of the Veteran's age, especially when the Veteran had cam deformities. The October 2020 opinion noted the thirty-year gap between service and reported symptoms of the left hip in determining that no nexus was present. Without any other competent and credible medical evidence to contradict the findings of the VA examiners, the Board affords them considerable probative value on appeal. Thus, the third element for direct service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Board acknowledges that Veteran has a degenerative condition in his left hip and that he is service-connected for various orthopedic conditions including the back and feet. Thus, the first and second elements of secondary service connection have been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. With respect to the third element, however, the evidence is not in relative equipoise as it was for the right hip. Dr. D.M. offers no opinion with respect to the Veteran's left hip; he speaks only to the Veteran's right hip. Indeed, Dr. D.M. specifically noted that the Veteran favored his left hip, which resulted in overuse of the right hip. The same can be said for Dr. C.L.'s letterit speaks only about the right hip. Thus, the only competent and credible medical opinion of record discussing the possible secondary effect on the Veteran's left hip is the October 2020 opinion. This opinion unequivocally states that the Veteran's left hip condition is not related to any altered gait due to his back and that his obesity is a large, contributing factor. Without any other competent and credible medical evidence to contradict the October 2020 VA examiner's opinion, the Board affords it considerable probative value on appeal. Thus, the Board finds that the third element of secondary service connection has not been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a left hip disability, to include as secondary to service-connected orthopedic conditions, the Veteran's appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.