Citation Nr: 21040988 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-01 902 DATE: July 7, 2021 ORDER Entitlement to service connection for right hip trochanteric pain syndrome and bursitis (right hip disability) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's right hip disability is related to an in-service injury. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during the Vietnam Era from December 1968 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for right hip disability. In August 2016 a notice of disagreement (NOD) was filed and in December 2016 the RO issued a statement of the case (SOC). In January 2017 a substantive appeal (via VA Form 9) was filed requesting a hearing before the Board. The Veteran did not appear for the hearing and the Board will therefore consider the hearing request withdrawn. However, there is no potential prejudice to the Veteran because the benefit sought is being granted in full. In September 2017 the Veteran testified at a Decision Review Officer (DRO) hearing. A transcript of the hearing is associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Right Hip Disability In October 2015 a VA examiner diagnosed the Veteran with trochanteric pain in the right hip. An October 2015 X-ray report evidences bursitis in the right hip. Thus, a current right hip disability has been demonstrated. A September 4, 1969 service treatment record (STR) note indicates that the Veteran had a truck accident during service and injured his right hip. The Veteran's STRs document continued medical treatment for the Veteran's right hip in-service injury following the Veteran's September 4, 1969 truck accident. Thus, the in-service injury requirement is met. For the following reasons, the Board finds that entitlement to service connection for the Veteran's right hip disability is warranted. The October 2015 DBQ noted diagnoses of trochanteric pain and bursitis in the right hip. Thus, the two diagnoses contained in the October 2015 DBQ reflect that the Veteran has met the current disability requirement for service connection. The Veteran's September 1969 STRs and lay statements satisfy the in-service injury requirements. The dispositive issue is whether a nexus exists between the Veteran's current right hip disability and his military service. At the September 2017 DRO hearing the Veteran testified that since the in-service injury he suffers from pain, tingling and numbness that radiates from his right hip down his leg to his ankle. The Veteran stated that the prescribed medication to treat his right hip injury causes severe lethargy that prevents him from driving. The Veteran takes over the counter medication (OTC) to treat his right hip disability. The October 2015 VA examiner found that the Veteran's current right hip disability is less likely than not caused by the claimed in-service injury. The VA examiner relied upon an October 2015 X-ray report that evidenced bursitis in the right hip to render her finding. The VA examiner opined that the Veteran's current right hip condition is more likely related to aging and less likely than not related to the Veteran's in-service injury. However, the VA examiner failed to take into consideration the Veteran's competent and credible statements of his right hip injury in service, or of complaints of right hip pain for the last 45 years since service when formulating her opinion of the Veteran's right hip disability. The Veteran indicated during the examination and in his written statements that he has had pain and other symptoms since the in-service injury and also that he sought care for his hip several years after service. The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). The October 2015 examiner also relied on the fact that there was no record of a diagnosis for right hip disability until several years after discharge from service when providing her opinion. As the October 2015 examiner's opinion was largely based on the absence of contemporaneous medical evidence, it is of little, if any probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). At this point, the Board could remand the claim for yet another medical opinion. Given the evidence of record, however, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying the claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, __ Vet. App. __, No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *23 (June 22, 2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The evidence is sufficient to decide the claim. The Veteran has provided competent evidence of right hip pain since service which combined with the other evidence of treatment during service, supports that the Veteran's right hip disability was caused by service. The Veteran's statements regarding right hip pain since service are competent and there is no indication that the Veteran's statements lack credibility. See Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). There is an inadequate negative medical nexus opinion and competent, credible lay evidence of a current right hip trochanteric pain syndrome that had its onset in service. The evidence is therefore at least evenly balanced as to whether the Veteran's right hip disability is related to his in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection right hip disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Henderson, 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.