Citation Nr: 21028525 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-08 252 DATE: May 11, 2021 ORDER Service connection for a left hip disorder on a secondary basis is granted. Service connection for a right hip disorder on a secondary basis is granted. Service connection for a low back disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1966 to July 1968, including service in the Republic of Vietnam and is in receipt of a Purple Heart. 2. Left and right hip disorders, diagnosed as degenerative arthritis, can be attributed to a service-connected shell fragment wound (SFW), right foot and service-connected disability of SFW, left thigh disability. 3. A back disorder, diagnosed as degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and mild spondylosis, was not shown in service and is not causally or etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. A left hip disorder is due to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2020). 2. A right hip disorder is due to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2020). 3. A back disorder was not incurred in or aggravated by active service, and was not caused by or permanently worsened in severity by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In connection with this appeal, the Veteran testified at a January 2021 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309 (a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309 (a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Bilateral Hip Disorder The Veteran contends that he developed bilateral hip disorder as a result of service-connected SFW of the right foot and left thigh. Turning first to the Veteran's primary argument that a bilateral hip disorder is secondary to a service-connected disability, the first element of service connection is met as bilateral hip disabilities were noted at a July 2016 VA examination and he was diagnosed with bilateral degenerative arthritis. The examiner noted that the disorder was diagnosed in 2009 in the right hip and 2012 in the left hip. The record also shows that he underwent a total right hip replacement in 2008, and a total left hip replacement in 2016. As such, the first element of secondary service connection, a current diagnosis, is met. Additionally, the Veteran has been service connected for SFWs of the right foot and left thigh since July 1968. Accordingly, the second element of secondary service connection, a service-connected disability, is met. As to a medical nexus between the hip disorders and the service-connected SFWs, the Veteran's VA treating physician, Dr. D.M., opined in June 2016 that the Veteran's current hip pathology was at least as likely as not the result of his service injury. The physician noted that the Veteran had long standing left hip pain and he was being evaluated for a hip replacement. He indicated that the Veteran injured his right foot on active duty in March of 1968 and subsequently discovered that his legs were not equal in length. The Veteran stated that he had pain in the foot and hip ever since this injury and had developed severe osteoarthritis which was most likely secondary arthritis of the left hip. This evidence weighs in favor of the claims. On the other hand, on a July 2016 VA Hip and Thigh DBQ, after examining the Veteran and reviewing his full medical record, the examiner opined that the Veteran's bilateral hip degenerative arthritis was less likely than not (less than 50% probability) proximately due to or the result of a service-connected disability. The examiner noted that the weight of the credible medical or scientific literature did not support SFWs to the right foot or soft tissue of the thigh would result in a bilateral hip condition. She indicated that there was no medical or scientific literature which supported that an altered gait resulted in problems with the bilateral hips. Next, she noted that the only time a relationship could be established between trauma to an extremity causing problems in the bilateral hips was in the case of a leg length discrepancy of 1.5-2 inches. She explained that a SFW to the right foot or soft tissues of the left thigh did not affect leg lengths and that the Veteran had a leg length discrepancy of 1cm which he had before his injury. She noted that the Veteran's bilateral hip condition was not due to or related to his shrapnel injury of the right foot or left thigh. Additionally, she indicated that he was able to work and he was able to do activities such as gardening and cross country skiing after service. Further, she noted that the Veteran had degenerative changes of the bilateral hips which would not be unusual for a person of the Veteran's age and it was part of the aging process and that his BMI placed him in the obese category which could put strain on the lower extremities leading to degenerative changes. This evidence weighs against the claim. Next, the Veteran claimed that a bilateral hip disorder was permanently aggravated by his service-connected disabilities. The evidence must show that his service-connected disabilities caused a permanent worsening of the underlying condition, rather than a temporary increase in symptomatology. To that end, a July 2016 VA examiner found that the Veteran was diagnosed with degenerative changes in his right hip in 2009, 41 years after service, and he also underwent hip replacement. He was diagnosed with degenerative changes in his left hip in 2012, 44 years after service. He was also able to do physically demanded activities such as hunting, cross country skiing, gardening, and moving furniture. However, in an August 2016 statement, the Veteran indicated that he had not skied or hunted in over 30 years and even then, he did not do either activity on a regular basis. Further, he testified at the January 2021 Board hearing that he had not skied or hunter in over 30 years and that Dr. D.M. was his VA primary care physician who had access to the Veteran's records and had a more in-depth understanding of the Veteran's history and condition. Upon review of all the evidence of record, there is evidence weighing both for and against the claim. In other words, the evidence discussed above is at least in equipoise as to whether the Veteran's bilateral hip disorder is secondary to his service-connected SFWs of the right foot and left thigh disability. Resolving all reasonable doubt in his favor, service connection for the left and right hip disorder, diagnosed as degenerative arthritis, is warranted. Back Disorder The Veteran contends that he developed a back disorder as a result of his service-connected disability of SFW, right foot, and/or service-connected disability of SFW, left thigh and/or his now service-connected bilateral hip disorder. Specifically, the STRs are silent for complaints of, treatment for, or diagnoses of a back disorder, strains or injuries to the back during his active duty. Further, at the July 1967 separation examination, his spine was clinically normal and he denied arthritis, or bone pain, or recurrent back pain. As such, the evidence does not support direct service connection. Turning first to the Veteran's primary argument that his back disorder is secondary to a service-connected disability, the first element of service connection a current disability is met. The Veteran's back disability was noted at a July 2016 VA examination and he was diagnosed with degenerative arthritis of the spine, IVDS, and mild spondylosis of the lumbar spine. The examiner noted that the condition was diagnosed in 2016. As such, the first element of secondary service connection, a current diagnosis, is met. Additionally, the Veteran has been service connected for SFWs of the right foot and left thigh since July 1968. Further, as discussed above, the Board is granting the Veteran's claim for service connection for a bilateral hip disorder. Accordingly, the second element of secondary service connection, a service-connected disability, is met. As to a medical nexus between the Veteran's back disorder and service-connected disabilities, in a July 2016 VA examination, after examining the Veteran and reviewing the medical record, the examiner opined that the Veteran's back disorders were less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected disabilities The examiner noted that the weight of the credible medical or scientific literature did not support that SFWs or a bilateral hip disorder would result in a back disorder. She indicated that there was no medical or scientific literature which supported that an altered gait resulted in problems with the back. Next, the examiner noted that the only time a relationship could be established between trauma to an extremity causing problems in the back was in the case of a leg length discrepancy of 1.5-2 inches. She explained that the SFWs or bilateral hip disorder did not affect leg lengths and that the Veteran had a leg length discrepancy of 1 cm. which he had before his in-service injury. The examiner noted that the Veteran's back disorder was not due to or related to his shrapnel injury of the right foot or left thigh or bilateral hip disorder. Further, she noted that the Veteran had mild degenerative changes of the spine which would not be unusual for a person of his age and it was part of the aging process and his BMI placed him in the obese category which could put strain on the back leading to degenerative changes. As the medical evidence does not support a nexus between a service-connected disability and a back disorder, service connection on a secondary basis is not warranted. Next, the Veteran claimed that a back disorder was permanently aggravated by his service-connected disabilities. The evidence must show that his service-connected disabilities caused a permanent worsening of the underlying condition, rather than a temporary increase in symptomatology. To that end, the July 2016 VA examiner opined that the Veteran's back disorder was less likely than not aggravated beyond its natural progression by his service-connected SFWs or bilateral hip disorder. The examiner found that the Veteran was diagnosed with mild degenerative changes in his lumbar spine in 2016, 48 years after service. The examiner noted that mild degenerative changes of the lumbar spine would not be unusual for a person of his age and it was part of the aging process and, as noted above, his BMI placed him in the obese category which could put strain on the back leading to degenerative changes as can his activities after service. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that the examiner misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has considered the Veteran's lay statement that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.