Citation Nr: 21029112 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-07 532 DATE: May 12, 2021 ORDER Service connection for bilateral avascular necrosis of the hips is denied. FINDINGS OF FACT 1. The Veteran has a current disability of bilateral avascular necrosis of the hips, which is a form of arthritis. 2. Symptoms of avascular necrosis were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. 3. The avascular necrosis did not have its onset during service and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral avascular necrosis of the hips have not been met. 38 U.S.C. §§ 1110, 1112, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army during the Gulf War Era from August 1998 to December 1998, and from February 2002 to March 2009. The Veteran initially applied for service connection (compensation) for the avascular necrosis in November 2014. The claim was denied in an April 2015 rating decision. In December 2015, the Veteran requested the claim for the avascular necrosis be reopened. The denial was continued in a March 2016 rating decision. The Veteran filed a notice of disagreement with the March 2016 rating decision. This decision is based on the timely appeal of the March 2016 decision. Service connection for bilateral avascular necrosis of the hips is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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. Avascular necrosis is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as avascular necrosis (a form of arthritis) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In this case, the evidence shows a current diagnosis of avascular necrosis of the hips. See November 2014 VA Treatment Records. The Veteran contends that the current avascular necrosis of the hips is caused by a fall in service in August 2003, as well as using high dose steroids for skin disorders during service. After weighing the evidence, lay and medical, the Board finds that symptoms of the avascular necrosis of the hips were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service. Service treatment records are negative for evidence of a hip injury during service or hip complaints or symptoms during service. Service treatment records specifically document a shoulder injury, treatment, and medical board, but do not similarly reflect a hip injury or hip symptoms. Service treatment records show treatment or reports of various symptoms, including PTSD, anxiety, sleep disturbance, depression, shortness of breath, chest pain, fluttering heart, hearing loss, knee problems, shoulder limitations, generalized pain, passing out, eustachian tube dysfunction, gastroenteritis, and specific falls with ankle pain. Examinations during service did not reveal any hip symptoms. For example, physical examinations in June and October 2008 showed normal musculoskeletal system and no mention of hip injury or symptoms, and no findings pertaining to a hip disorder. The service treatment records, which are complete, show the Veteran's extensive medical histories reported during service after the alleged 2003 hip injury that do not mention any hip injury or symptoms and a hip injury. Service treatment records specifically show a fall in 2003 that resulted in ankle injury and symptoms, with no mention or complaints of hip injury or symptoms. The records show the Veteran availed himself of treatment, and thoroughly documented symptoms that he did have, including other orthopedic symptoms. As the records are complete, and a hip injury and symptoms are such that they would have been recorded had they occurred, especially in the context of clear documentation of a shoulder injury, tends to show that no in-service hip injury, disease, or even symptoms occurred. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). The first mention of any hip disorder is in the post-service treatment records in September 2014 (there are VA treatment records from January 2014 that note pain in the right hip; however, the pain is described as originating in the lower back and radiating down to the right hip, rather than originating from the hip itself). The Veteran went to the VA clinic after developing pain in the right hip, which he reported as beginning the previous week after jogging. The Veteran reported to the clinic that he cannot recall ever injuring his hip in the past. A VA treatment report from December 2014 notes that the Veteran reported that, prior to September 2014, he had experienced no hip pain or trauma or injury to the hips. Later, in January 2017, a VA treatment report shows the first time the Veteran started reporting a different history of hurting his hip in Iraq, with high doses of prednisone being a contributing factor. Later during the claim for compensation, during a hearing before the Board in February 2021, the Veteran testified that, as a result of falling off a cliff in service, he had discomfort in the hips. He reported that discomfort went away, but would return throughout the years. After considering the inconsistent reports of onset of hip symptoms, the Board finds that the Veteran's reported history of the hip pain beginning in September 2014 is more credible than his reported than the later histories of the hip pain beginning in service. Service treatment records are negative for any hip injury, disease, or event, or even symptoms during service. Prior to September 2014, the record shows no complaints, symptoms, or treatments for hip pain (excluding the January 2014 hip pain radiating from the spine), and no mention in any history of hip injury or symptoms in or since service. The absence of relevant is consistent with the Veteran's report of onset in September 2014 and inconsistent with an earlier onset date. Finally, the reports of a September 2014 post-service onset of symptoms were made during treatment, whereas the reports of an in-service onset were made later in time and for compensation purposes. Medical histories for treatment purposes are highly probative because one is expected to present an accurate medical history in order to receive efficacious medical treatment. After service the Veteran did not file a claim for service connection for a hip disability when seeking service connection for other disorders believed to be related to service. The record includes several rating decisions prior to the April 2015 rating decision on appeal that include adjudications for disorders, none of which include claims for service connection for a hip disability or include even oblique references to a hip injury or symptoms in or since service. Given these facts, as well as the absence of any in-service complaint, finding, or reference to treatment for a hip disability or related symptoms, the Board finds that the Veteran's recently reported history of an in-service hip injury and symptoms made pursuant to this claim for compensation is inconsistent with and outweighed by the other lay and medical evidence of record, and is not credible. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that a lengthy period of absence of medical complaints for condition can be considered as one factor in resolving claim); Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). As the onset of the hip symptoms was September 2014, five years after service, the Board finds that symptoms of the avascular necrosis of the hips were not chronic in service, were not not continuous since service, and did not manifest to a compensable degree within on year of service. After weighing the evidence, lay and medical, the Board finds that the avascular necrosis did not have its onset during service and is not otherwise related to active duty service. The weight of the lay and medical evidence, as analyzed in this Board decision, shows no hip injury, disease, or even symptoms in service. The weight of the evidence also shows no high steroid dosage during service. The Board has been unable to find any note in the service treatment records regarding use of high dose steroids to substantiate that assertion. There is a mention in October 2008 of use of non-steroidal anti-inflammatory drugs for an in-service shoulder injury, but this does not show high dosage or suggest an event that has potential to cause harm to the hips. The service treatment records show normal treatment rather than an event pertaining potential harm to the hips. (Continued on the next page) For these reasons, based on the multiple factors stated in this decision, the Board finds that there was no in-service hip injury or disease or chronic symptoms of a hip injury during service. As the weight of the evidence shows no in-service injury or disease, the appeal must be denied. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The Veteran was examined by VA in January 2018. The examiner opined that the avascular necrosis of the hips is less likely than not due to or the result of service. The examiner reasoned relying upon accurate facts that, because there were no complaints of hip pain or other condition in the service treatment records, and the Veteran first complained of hip pain in September 2014 after jogging (five years after service), the current avascular necrosis was not connected to service. The VA examiner noted risk factors for avascular necrosis include prior bone fractures, joint dislocations, use of steroids, and excessive alcohol consumption. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.