Citation Nr: 21027657 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-17 761 DATE: May 6, 2021 ORDER Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is denied. FINDING OF FACT The Veteran's right hip disability is not attributable to active service or any period of ACDUTRA/INACDUTRA and is not secondary to a service-connected disability, including his service-connected lumbar strain or his service-connected right lower extremity peripheral radiculopathy. CONCLUSION OF LAW The criteria for service connection for a right hip disability, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1988 to August 1988, February 2003 to October 2003, and January 2008 to February 2009, with additional periods of service in the Army National Guard in various periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in July 2014 and July 2015. In December 2018 and August 2020, the Board of Veterans' Appeals (Board) remanded this appeal for additional development. A January 2021 Decision Review Officer decision granted service connection for a left knee disability. As this grant represents the full benefit sought, the issue is no longer on appeal before the Board. Although evidence was added to the record after the December 2020 supplemental statement of the case (SSOC) was issued, this evidence is duplicative and was discussed in the December SSOC. A waiver is not needed. 38 C.F.R. § 19.31. Service Connection for a Right Hip Disability When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Secondary service connection requires a current disability exists and a finding that that disability was proximately caused, or aggravated, by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b). Active military, naval, or air service includes active duty as well as any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The claimant bears the burden of establishing Veteran status during periods of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the Veteran's periods of ACDUTRA and INACDUTRA is not appropriate. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); as discussed above, arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, however, because presumptive periods do not apply to periods of ACDUTRA and INACDUTRA, service connection via the demonstration of continuity of symptoms is only applicable in the present case for the Veteran's period of active service from April 1988 to August 1988, February 2003 to October 2003, and January 2008 to February 2009. In the current appeal, the Veteran contends that his right hip disability is related to his active service. Specifically, he contends that he injured his right hip while completing military training exercises, including walking long distances and lifting heavy equipment. See January 2002 Lay Statement from Veteran. Alternatively, the Veteran contends that his right hip disability is secondary to his service-connected lumbar strain disability. As an initial matter, while the Veteran has a current diagnosis of degenerative arthritis of the right hip, see, e.g., December 2015 VA Examination Report for Hip and Thigh Conditions, the record does not reflect medical evidence showing any manifestations of arthritis of the right hip during his active service periods or during any of the one-year presumptive periods after his separation from active service. To the contrary, the record does not reflect any complaints or findings consistent with this disability until October 2015 (more than six years after the Veteran's separation from active service). Accordingly, service connection is not warranted on a presumptive basis as to this claim. 38 C.F.R. §§ 3.307, 3.309. Having determined that presumptive service connection is not warranted, the Board's inquiry turns to whether service connection on a direct basis is warranted. In this regard, the Veteran has a current right hip disabilitydiagnosed as coxofemoral joint arthritis and pelvic enthesopathy and degenerative arthritis of the right hip. See, e.g., December 2015 VA Examination Report. Service treatment records are silent for any symptoms, diagnoses, or treatment of the right hip. Indeed, throughout the service medical records, the Veteran denied any hip problems, and none were noted by a medical professional during service. The first documented evidence of complaints for the right hip is in October 2015, approximately six years after active service and a few months after the last ACDUTRA/INACDUTRA period. The Veteran was afforded a VA examination for his right hip in December 2015. The examiner negatively opined that the Veteran's right hip disability was less likely than not proximately due to, or the result of, the service-connected lumbar spine and radiculopathy. The examiner explained that there is no evidence in medical literature that a lumbar radiculopathy causes degenerative changes of a joint. She further noted that the Veteran's right hip condition is more likely related to the natural aging process. The examiner did not render an opinion regarding either direct service connection or aggravation. At a November 2019 VA examination, the Veteran reported that he had been experiencing pain in his right hips since October 2015. The examiner opined that it was less likely than not that the right hip condition was proximately due to, or the result of, the service-connected lumbar spine disability with right lower extremity radiculopathy. She explained that these conditions are in two different anatomical areas with different bony structures and nerve supplies, which are unrelated to each other. She further stated that the Veteran's bilateral hip conditions are due to normal progression of the aging process. The examiner also opined that it was less likely than not that the right hip disability was aggravated by the service-connected lumbar spine disability and right lower extremity radiculopathy. As rationale, she stated that there was no evidence that the Veteran's hip condition was aggravated beyond the natural progression of the disease by the lumbar spine disability and lower extremity radiculopathy. For the first time, in November 2020, the examiner provided an opinion regarding direct service condition, to include whether the Veteran's right hip disability was caused by, or related to, his active duty service and periods of ACDUTRA and INACDUTRA. After examining the Veteran's service and medical records, including the periods of ACDUTRA and INACDUTRA, she negatively opined that the Veteran's hip disability was not related to any period of service, including ACDUTRA and INACDUTRA. She stated that the Veteran was in annual training from July 5, 2014 to July 19, 2014, and from June 27, 2015 to July 11, 2015. However, she noted, the Veteran did not complain of hip pain until October 2015. Specifically, she explained, a note from the Veteran's primary care treatment physician states, "Right hip pain with extension, rotation/left knee no swelling or erythema. No tenderness to palpation/right shoulder mild crepitus, no pain with ABD or rotation. Assessment was right hip pain DJD likely." The examiner referred to x-ray results that were ordered at that time, in October 2015. She explained that, although there are documented records of complaint of back pain from the Veteran in November 2014, after his July 2014 ACDUTRA training, there is no such evidence of complaints about the hip. The examiner emphasized that the right hip complaint was not during a certified period of annual training. She stated that, after reviewing right and left hip X rays that were done in October 2015, they are compatible with non-traumatic degenerative arthritis of the right and left hip joints due to normal progression of the aging process. She reiterated that there is no evidence that the Veteran's right hip disability was aggravated beyond normal progression of the disease by any verified period of ACDUTRA/INACDUTRA. Regarding secondary service connection, the examiner opined that the Veteran's right hip disability was not caused or aggravated by any of his service-connected disabilities. She stated that medical evidence supports the fact that all the Veteran's hip disabilities and service-connected disabilities are unrelated to each other anatomically and by pathophysiology. She also explained that the conditions are in different anatomical areas with different bony structures and nerve supplies that are unrelated to each other. The examiner reiterated that there is no evidence that the Veteran's hip condition was aggravated by any service-connected disabilities. The Board has carefully evaluated the evidence and, for reasons stated below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's right hip disability is related to his service, including any period of ACDUTRA or INACDUTRA. The Board also finds that the Veteran's right hip disability is not secondary to the service-connected lumbar strain or right lower extremity peripheral radiculopathy. Regarding service connection on a direct basis, the Board finds the most probative evidence of record shows that the Veteran did not sustain an in-service disease or injury that caused his right hip disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As previously stated, the Veteran's service treatment records are absent of findings related to a right hip injury, or complaints and treatment related to the right hip. Importantly, his separation physical examinations do not indicate any abnormal findings related to the hips. There is also no evidence to indicate that the Veteran had a right hip disability within a year of leaving service. The evidence shows that the Veteran was not diagnosed with a right hip disability until October 2015, approximately six years after he left service. See December 2015 VA Examination Report. There is simply no competent and probative evidence to show that the Veteran had a right hip disability during serviceand no competent and probative evidence that his current right hip disability is related to such active duty. In addition, the November 2020 VA examiner explained that a review of the evidence does not support a finding that the Veteran's right hip disability is related to any period of ACDUTRA or INACDUTRA. The Board has considered the provisions of 38 C.F.R. § 3.303 (b), relating to chronicity and continuity of symptoms. However, the first post-service evidence of complaint of, or treatment for, symptoms associated with the right hip following the Veteran's discharge from active service was in October 2015, more than six years after leaving service. Also, the Veteran's separation physical examination reports document normal findings for the hips. The service treatment records and VA examinations therefore contradict any lay assertion from the Veteran that his current right hip disability manifested during a period of active service. As such, continuity of symptomatology after active service is not demonstrated. With respect to secondary service connection, the Board finds that the Veteran's right hip disability was not caused by, aggravated by, or proximately due to, the service-connected lumbar strain, right lower extremity peripheral radiculopathy, or indeed any other service-connected disability. In making this determination, the Board assigns probative weight to the opinion of the November 2020 VA examiner. The examiner thoroughly reviewed the Veteran's claims file and considered the Veteran's report of symptoms and medical history. The VA medical opinion is probative because it is based on an accurate medical history and provides an explanation that contains a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's lay assertions that his right hip disability is related to his active service, including periods of ACDUTRA and INACDUTRA, or is secondary to his service-connected lumbar strain and right lower extremity peripheral radiculopathy disabilities. However, the Board does not assign much probative weight to these statements because a determination as to the etiology of a musculoskeletal disability or arthritis is medically complex, requiring specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Here, the Veteran is not shown to have the medical training to render competent opinions about such complex medical matters. See id.; see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board, thus, finds that the weight of the evidence is against a finding of service connection for a right hip disability, to include as secondary to the service-connected lumbar strain or the service-connected right lower extremity peripheral radiculopathy. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Accordingly, entitlement to service connection for a right hip disabilityon either a direct or secondary basisis denied. 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.