Citation Nr: 21041991 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-01 793 DATE: July 10, 2021 ORDER The issue of service connection for left hip arthritis is denied. FINDING OF FACT The preponderance of the evidence is against finding that left hip arthritis began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left hip arthritis are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training in the United States Marine Corps Reserve from October 2009 to June 2010 with additional training to April 2014. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in September 2016 and a Statement of the Case (SOC) was issued in October 2016. The Veteran perfected an appeal by submitting a timely VA Form 9 in December 2016. The issue was previously before the Board. In December 2018, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to schedule a VA examination for the Veteran. The Veteran was afforded a VA examination in October 2019. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in October 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term active military, naval, or air service includes: (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Service connection may also be granted for any disability resulting from an injury in the line of duty while performing inactive duty training (INACDUTRA). 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. § 101(24), 1131) (stating that the law permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty). For members of the reserve components of the Armed Forces, qualifying active duty includes service on active duty under a call or order to active duty under section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of Title 10. See 38 U.S.C. § 3301(1)(B). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. Service connection for left hip arthritis The Veteran contends that he injured his left hip during INACDUTRA on January 12, 2013 and that it caused his left hip arthritis. The Veteran's service records show that the Veteran was on inactive duty from January 12, 2013 to January 13, 2013. The Veteran's service treatment records do not document an injury to his left hip. The first recorded complaint of back pain was on January 29, 2013 when the Veteran complained of low back pain "after playing hockey." In February 2013, he reported left leg pain after initially sustaining an injury to his lower back after playing hockey. In May 2013, a periodic health assessment notes that the Veteran had arthritis in his left hip due to "military backpack." In June 2013, the Veteran reported that he took medication for "arthritis in his back and hips secondary to carrying heavy packs in the military." There is no record, and the Veteran does not contend, that there was a specific injury to his left hip involving a military backpack during ACDUTRA or INACDUTRA. In September 2013, a private medical practitioner reported that the Veteran presented with "a chronic history of low back pain as well as leg pain" but did not discuss any reports of chronic left hip pain. In October 2013, the Veteran reported "occasional" left hip pain. The Veteran also reported that he continued to work with his chiropractor for his back pain but only extra strengthening for his hip. In October 2015, the Veteran reported that he has had left hip and low back issues since being in the military. In December 2016, the Veteran submitted statements from fellow Marines that report the Veteran complaining of a back injury during a drill weekend in "early 2013" caused by moving radio equipment and removing tires. None of the statements refer to the Veteran's contended injury to his left hip. In October 2019, the Veteran was afforded a VA examination for his claim of service connection for left hip arthritis. The examiner noted that the Veteran's reduced range of motion was in part due to the Veteran's " suboptimal effort," but the Veteran was diagnosed as having degenerative arthritis in his left hip. The diagnosed arthritis was not significant according to imaging studies. The VA examiner then opined that the Veteran's left hip arthritis was less likely than not caused by the claimed in-service injury in January 2013, as the condition was "acute only" during service. As rationale, the examiner noted the lack of evidence documenting chronicity and that the event described by the Veteran "was not severe enough to result in the development of subsequent arthritis today." The examiner also noted that the Veteran's imaging study revealed "no significant arthritis changes." The Board finds the October 2019 VA examination to be adequate as it is supported by rationale, to include an assessment of the Veteran's current left hip arthritis and the Veteran's own description of the alleged injury that occurred in January 2013. There is no medical opinion to the contrary. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran's current arthritis of the left hip is not causally related to his active service or any incident therein, to include his participation in the drill in January 2013. As discussed above, contrary to the reports of his back injury, there is no contemporaneous medical treatment record of the Veteran's left hip injury. Had the Veteran experienced symptoms of left hip disability, he would have reported it in a clinical setting as he did with his other ailments involving his low back and left leg. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, to the extent the Veteran asserts that a relationship exists between his left hip arthritis and his purported hip injury in January 2013, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran's left hip arthritis is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran's left hip arthritis have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran's left hip arthritis and his purported injury in January 2013, service connection on a direct basis must be denied. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for left hip arthritis is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.