Citation Nr: 21031489
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 18-28 139A
DATE: May 24, 2021

ORDER

Entitlement to service connection for a right hip disability is denied.

FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran's right hip disability was either proximately caused or aggravated by a service-connected disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1964 to August 1967.

This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated January 2018 issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for right hip pain. The appeal has previously been before the Board in June 2019 where it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Service Connection

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.

In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Entitlement to service connection for a right hip disability as secondary to a back disability

The Veteran claims entitlement to service connection for a right hip disability as secondary to a back disability. Following a thorough review of the Veteran's medical records, the Board finds that he is not entitled to an award of service connection.

The Veteran has not alleged that the right hip disability actually had its onset in service or that there was any injury to the right hip in service. In his original claim he described "right hip pain secondary to degenerative disc disease." As a result, the Board will limit its analysis to the secondary service connection theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008).

As an initial matter, the Board finds that the Veteran has satisfied the first element of secondary service connection, a current disability. A review of the Veteran's November 2017 VA examination shows the Veteran has osteoarthritis of the right hip that was diagnosed in 1996. See VA Examination dated November 2017. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability.

As to evidence of a service-connected disability, the Veteran is service-connected for degenerative joint disease, lumbosacral spine with intervertebral disc syndrome (IVDS), among other disabilities. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection on a secondary basis: evidence of a service-connected disability.

Turning next to evidence of a causal relationship between the service-connected disability and the current disability, the Board finds the weight of the competent evidence does not support a nexus. In determining this, the Board finds the medical opinion of the January 2020 VA examiner to be probative and entitled to significant weight.

A review of the Veteran's medical treatment records following service show a scan of the hips revealed marginal hip spurs in January 1996. A January 2006 medical treatment record noted that there was no hip joint tenderness present. Scans of the Veteran's hips in November 2017 showed mild osteoarthritis of the right hip.

The Veteran was provided a VA examination in November 2017. The examiner opined that the Veteran's right hip disability was less likely than not proximately due to or the result of the Veteran's service connected condition. The examiner provided,

There is nothing in the Veteran's history or examination to suggest that his hip discomfort is result of degenerative joint disease, lumbosacral spine with intervertebral disc syndrome. He does have minimal arthritic change in his right hip, but this is not caused by his spine complaints and I could find no service related treatments of his hip. His complaint of discomfort, elicited by history obtained this visit, does not fit any known dermatome or combination of dermatomes.

In a February 2018 Notice of Disagreement (NOD), the Veteran wrote, "The change of gait has caused this pain and discomfort...The pain at times is excruciating."

In a June 2019 BVA decision, the Board remanded the Veteran's right hip disability claim. In its decision, the Board determined that the November 2017 VA examination was inadequate for adjudication purposes as the opinion addressed causation but did not address aggravation.

Thereafter, the Veteran underwent another VA examination in January 2020. The examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The VA examiner provided a thorough rationale referring to the evidence of record:

The two conditions are not medically related. The claimed disorder is a separate entity entirely from the service connected condition and unrelated to it. The medical literature does not support a medical relationship. A nexus has not been established. Veteran was diagnosed with osteoarthritis of the right hip, per the DBQ. Standard texts, such as Wheeless and current literature do not support that a condition of one joint, including the lumbar spine, causes a condition in another joint. This is especially true with DJD, which is due to the degeneration of the cartilage of the affected joint. Therefore, it is less likely than not that the Veteran's right hip osteoarthritis is due to, caused by or aggravated by the Veteran's back conditions.

The VA examiner also noted that regardless of an established baseline, the Veteran's right hip disability was less likely than not aggravated beyond its natural progression by the service-connected condition and gave the same rationale provided above.

As the examiner's opinion is based on an accurate factual picture, and answers the questions asked, the Board finds there has been substantial compliance with its remand directives.

The Board finds the opinion of the January 2020 VA examiner to be probative, as it provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board finds that the question of whether a nexus exists between the Veteran's service-connected disability and his current right hip disability is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education or knowledge. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Because the Veteran does not have specialized medical training, experience, or knowledge, his opinion, no matter how sincere, is not competent nexus evidence.

Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes a causal relationship between the Veteran's right hip disability and a service-connected disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

 

ROBERT N. SCARDUZIO

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Bristor

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.