Citation Nr: 21026682 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-32 729 DATE: May 3, 2021 REMANDED Entitlement to service connection for a right hip disorder, to include dysplasia, is remanded. Entitlement to service connection for a left hip disorder, to include dysplasia, is remanded. REASONS FOR REMAND The Veteran had active service from May 1979 to July 1980. Although the Veteran initially requested a hearing before a Veterans Law Judge, she subsequently requested a withdrawal of such hearing request. Her request was honored. Service Connection For Bilateral Hip Disability, To Include Dysplasia The Veteran contends that she has bilateral hip dysplasia that is due to a serious birth defect, which was aggravated during service. See July 2016 VA Form 9 Lay Statement. Specifically, she contends that she had a preexisting bilateral congenital hip disorder that went undetected during her military service and was aggravated by her training exercises in service. She explains that, although she experienced symptoms such as pain in service, she was not aware of this disability until years after leaving service. Id. She reiterates that the hip pain she experienced in service was further aggravated by her in-service activities such as running. Id. She noted that she did not seek treatment for her pain because she felt it was expected for her to tolerate such pain. See February 2021 Email Correspondence from Veteran. She also stated that she feared being demoted or transferred if she complained about her pain. So, she just continued to push herself and remained quiet. Id. The record reveals that the Veteran has dysplasia of her hips. Notably, private treatment records dated in March 2009 document hip dysplasia and acknowledge that there was corresponding painful functional disorder of both the axial organ area and the area of both hips. The private physician recommended inpatient rehabilitative treatment in an orthopedic specialty clinic. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111. Only conditions recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Notably, congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations, but not for defects, unless such defect was subject to superimposed disease or injury in service. Id. Here, the Veteran's service treatment records are silent for complaints of, or treatment for, a hip disability. Her enlistment examination report does not show a congenital disorder or defect upon entry. In fact, her lower extremities were normal at clinical evaluation on entrance. The separation physical examination report does not show any abnormalities related to her hips. However, as previously noted, the Veteran explained that she refused to report her hip pain because she thought it was expected for her to tolerate such pain. She noted that she did not seek treatment until a few years after service, when the pain increased in severity. The Veteran submitted photographs that seem to depict changes in the formation of her hips, but there is no date given as to the date that these photographs were taken. The Veteran has not been afforded a VA examination for her bilateral hip dysplasia, which was diagnosed by a private physician. The Board assigns credibility to the Veteran's reports concerning her reason for not seeking treatment in service. Thus, as there is no opinion concerning her contention that her bilateral hip problem is a congenital disorder that clearly and unmistakably existed prior to service and was clearly and unmistakably aggravated beyond its natural progression by an in service injury, event, or illness, the Board gives her the benefit of the doubt and finds that a remand is necessary for her to undergo a VA examination to determine the nature and etiology of her bilateral hip disability. Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral hip disorder, to include dysplasia, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. For each diagnosis identified (to include dysplasia), the examiner should indicate whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") i. For each such diagnosed hip disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active service. ii. For each such diagnosed hip disorder that is a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active service. (The term "clear and unmistakable" means that the evidence is undebatable.) If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active service. If the evidence reflects such an increase, the examiner should indicate whether the increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. iii. If the examiner determines that any such diagnosed hip disorder is not a congenital defect and is not a congenital disease that clearly and unmistakably preexist the Veteran's active service, he or she should state whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disorder manifested in, or is otherwise related to, her active service. In rendering his or her opinion, the examiner should consider the Veteran's contention that she had a congenital hip disorder that was aggravated by military exercises and trainings. A clear rationale must be provided for all opinions expressed, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.