Citation Nr: 21029152 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-19 742 DATE: May 12, 2021 ORDER Entitlement to service connection for a left hip disorder manifested by pain with functional impairment is granted. Entitlement to service connection for a right hip disorder manifested by pain with functional impairment is granted. FINDINGS OF FACT 1. The Veteran's left hip disorder is manifested by pain and functional impairment. 2. The Veteran's right hip disorder is manifested by pain and functional impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disability are met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disability are met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1978 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). In October 2018, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of the hearing is associated with the claims file. This matter was previously before the Board in May 2019 at which time it was remanded for an addendum opinion and for further development of the record. This matter was again before the Board in August 2020 at which time it was again remanded for an addendum opinion. This matter was again before the Board in January 2021 at which time it was again remanded for an addendum opinion. The Board's remand directives and the subsequent actions by the AOJ will be discussed below. Service Connection In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a left hip disorder 2. Entitlement to service connection for a right hip disorder The Veteran has asserted that his left and right hip disorders are related to his military service, including documented parachute jumps. In January 2021, the Board remanded this matter for an opinion as to whether the Veteran's bilateral hip pain reaches the level of a functional impairment of earning capacity so as to constitute a current disorder. The Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). The Federal Circuit held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Id. Pursuant to the remand, an addendum opinion was submitted in March 2021. The examiner noted that records were reviewed. The examiner opined that the claimed hip disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was as follows: There is no evidence of an acute or chronic hip condition while in service. There is no evidence of a hip condition until in or around 2015. The Veteran was diagnosed with minimal osteoarthritis bilaterally on x-rays on 8/8/15. The Veteran's x-rays dated 12/12/18 are negative bilaterally for any significant anatomical change. Only an MRI can determine if minimal DJD is present, but currently, the diagnosis would be "hip pain, etiology undetermined." As no nexus is established in service or proximate to service and the Veteran had a clear onset of symptoms in or around 2015, it is less likely than not that the veteran's bilateral pain is due to or incurred in events in service. It is highly unlikely that a condition arising in service would not have manifested sooner and more severely than the medical evidence suggests in 2015. The examiner noted that he reviewed the conflicting medical evidence. He stated that the Veteran's limitations due to the bilateral hip pain include loss of effective range of motion which would limit use of stairs and ladders, crouching or squatting, strenuous activity and repetitive use (control pedals other than driving). The Veteran could likely perform duties at a light to moderate level, but certainly light duty. However, these limitations are less likely than not related to military service. The Board notes that the examiner described the Veteran's hip disorder as "hip pain, etiology undetermined." The Board notes that the remand directives required the examiner to consider the Veteran to be competent and credible to report experiencing pain in his hips, although the examiner did not directly address the Veteran's lay statements. In addition, the examiner did not expressly address whether the Veteran's bilateral hip pain reaches the level of a functional impairment of earning capacity so as to constitute a current disability. Without addressing that issue, the examiner opined that it is less likely than not that the Veteran's hip pain is related to military service and that the functional impairment/limitations due to bilateral hip pain are less likely related to service. The Board declines to remand again, finding that while worded differently than the remand directives, the examiner's opinion provides sufficient information for the Board to address this issue, and the record contains sufficient evidence upon which to make a decision on the merits. The Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Pursuant to Saunders, "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board notes that the examiner describes the Veteran's hip disorder as "hip pain, etiology undetermined." Thus, the issue is whether the Veteran's hip pain alone rises to the level of a functional impairment. In terms of functional impairment, the Board finds that the examiner's opinion that the Veteran could likely perform duties at a "light to moderate level, but certainly light-duty" does not fully address the medical evidence of record, including VA medical records, private medical records, the Veteran's hearing testimony and lay statements, and evidence considered in relation the Veteran's application for Social Security disability benefits. A January 2002 emergency room report indicated that the Veteran presented with pain in his left lower back radiating to his hip. An August 2002 private medical exam with MRI noted right hip and leg sharp, gripping, burning pain, 9 on a scale of 1 - 10. In August 2006, the Veteran reported that when being treated for a knee injury caused by a parachute jump during service in 1979, he was in a full leg cast to his hip for two months. In April 2016, a private orthopedic surgeon provided a medical opinion that the Veteran's mid and low-back disorder of multi-level disc protrusions are causally related to injuries sustained in a documented parachute jump during active service. As relevant here, the doctor reviewed a U.S. Military Academy Department of Physics publication that discussed the physics of the forces and stresses that are sustained in parachute jumping. The doctor stated that forces from direct contact with the ground are transmitted though the lower extremity structures, skeletal and soft tissue at the foot, leg below the knee, ankle and knee joints, femur, hips and pelvis. The medical description of the Veteran's pain included a diagram that indicated pain in his knees, thighs, lower back, and hips. A May 2016 medical noted indicated that the Veteran reported sharp bilateral hip pain while walking. In a July 2016 Hip and Thigh Conditions Disability Benefits Questionnaire, the examiner noted that the Veteran Pt complained of pain in his hips. He also complained of excruciating low back pain and muscle spasms with hip movement. The examiner noted trochanteric bursa pain. The examiner was unable to speculate as to amount of pain caused only from hips vs. low back pain. The examiner noted a disturbance of locomotion, interference with sitting, interference with standing. He noted a decreased ability to stand, walk, bend, sit, squat, and lift. In his July 2016 VA Form 9, the Veteran stated that he had difficulty concentrating at work because of right hip pain. In August 2018, the Veteran testified that a VA doctor told him his hip problems could be caused by his altered gait from his knee problems and back problems. He noted that he has a diagnosis of osteoarthritis for his hips. He testified that he was not seeing a doctor because "there is nothing they can do." The only alternative is surgery but it is unclear whether it would help. In an October 2019 Hip and Thigh Conditions DBQ, the examiner noted the Veteran complained of bilateral hip pain. The Veteran reported that he was not able to kneel or squat or stand straight. Interference with sitting and standing was noted. The examiner noted that the Veteran was unable to stand or walk for prolonged periods, unable to bend or squat, and unable to climb or descend stairs. The Veteran has been diagnosed with residuals, injury to right knee and degenerative joint disease; spinal stenosis and herniated discs in the thoracolumbar spine; and radiculopathy of the bilateral lower extremities, with sciatica; related to an in-service injury during a parachute jump. However, his hip pain was not considered in the evaluations for those disabilities and in fact was found to be a separate and distinct diagnosis. As noted in the most recent remand, the Veteran is competent and credible to report that he has pain related to his hips. That includes reporting the onset of such pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe his symptoms however not to diagnose those symptoms. While VA examiners have been unable to associate the Veteran's hip pain with a diagnosed disability, the fact remains that the Veteran has established that he experiences hip pain that causes functional loss. The Board finds that pain alone can constitute a ratable disability in this circumstance and, thus, for the purpose of this decision, the Board will accept that the Veteran has a bilateral hip disability owing to his pain in this hip, even absent an underlying diagnosis accounting for such pain. The evidence of record, including VA medical records, private medical records, the Veteran's statements that his claimed disabilities prevent him from working, and his hearing testimony, establish that the Veteran's hip pain rises to the level of functional impairment, and therefore qualifies as a disability per Saunders. The specific functional loss to be attributed to hip pain will be determined by the RO in assigning the appropriate disability evaluation. For the purposes of this decision, it is sufficient that the Veteran has shown that he experiences hip pain that has caused functional loss and that his bilateral hip pain has been related by the Veteran's private examiner and the Veteran's own statements to the Veteran's parachute jumps during service. Service connection is for such disability is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.