Citation Nr: 21029257 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-15 911 DATE: May 13, 2021 ORDER Entitlement to service connection for osteoarthritis of hips and joints, to include as secondary to service-connected bilateral foot disabilities is granted. FINDING OF FACT It is at least as likely as not that some portion of the current disability associated with arthritis of the bilateral hips has been aggravated by the Veteran's service-connected bilateral foot disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for arthritis of the bilateral hips as secondary to service-connected bilateral foot disability, have been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from September 1989 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In June 2018 the Board remanded the claim for an addendum opinion to address direct service connection. Service Connection When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a) (2018). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for osteoarthritis of hips and joints, to include as secondary to service-connected bilateral foot disabilities The Veteran contends that his bilateral hip and joint disability is due to his service, or in the alternative, aggravated by his service-connected bilateral foot disability. See June 2013 VA 21-4138 Statement in Support of Claim. The evidence of record shows that the Veteran was diagnosed with severe generalized osteoarthritis. See May 2013 Medical Treatment Record. Thus, the first element of service connection has been established. The remaining inquiry is whether the diagnosis was due to service. See 38 C.F.R. § 3.310. In reviewing the record, the Veteran is service connected for a bilateral foot disability. In a May 2013 opinion by a private physician notes "[t]he underlying etiology of his accelerated osteoarthritis at this time is not completely clear, but it could be as a result of his repeated exercises in the military as well as the over compensation by his joints in light of a bunion surgery that was not successful." See May 2013 Private Treatment Record. While the opinion provided is not conclusory, the standard does not require a definitive finding. Moreover, the physician indicates that the disability is "accelerated", a finding that suggests the Veteran's disability is not a normal progression of the disease, and further indicates that it could be due to his service-connected bilateral foot disabilities due to overcompensation, in addition to his military exercises. The Veteran underwent a VA examination to address causation or aggravation in April 2014 wherein the examiner found the Veteran's bilateral hip disability was "less likely than not that the Veteran's osteoarthritis of the bilateral hip is proximately due to or the result of his right foot bunionectomy and left mid-foot arthritis". By way of rationale, the examiner stated there was no documented relationship between the bilateral foot disability and his bilateral hip disability, "nor are these conditions associated with the accepted risk factor for hip osteoarthritis", contrary to the opinion provided by the private physician. The Veteran underwent an additional VA examination in April 2019 to address direct service connection wherein the examiner found the disability was less likely than not related to service. By way of rationale, the examiner found a lack of documentation in service and for 24 years following service. The Board finds that all available evidence favors a finding that the Veteran's right-hand disability is due to his service-connected bilateral foot disability. To the extent the VA provided negative opinions, the April 2014 VA examination failed to provide an adequate opinion as to whether the Veteran's bilateral hip disability was due to his service-connected bilateral foot disability as it did not address the Veteran's lay statements of over-compensation and the May 2013 private opinion. The April 2019 opinion was inadequate as it was predicated on a lack of documentation in service. In summary, a review of the complete record, including VA treatment, VA examinations, and the lay statements of the Veteran, indicates that the evidence is at least in equipoise. Resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's bilateral hip disability is warranted on a secondary basis. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.