Citation Nr: 21042302 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-30 498 DATE: July 12, 2021 ORDER Entitlement to service connection for a bilateral hip disability is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's current bilateral hip disability had its onset during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria to establish service connection for a bilateral hip disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In decisions dated February 2019 and March 2021, the Board remanded the matter for additional development. As an aside, the Board notes that the Veteran has a service connection claim for "abdominal and flank pain possible nerve issue" that is pending before it under the modernized appeals system. This issue will be addressed in a separate decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a bilateral hip disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Relevant here, the Veteran's diagnosed arthritis is considered by VA to be a "chronic disease" as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that he currently has a bilateral hip disability that is related to, or caused by, his active service. In the alternative, the Veteran asserts that his bilateral hip disability is secondary to his service-connected lumbar spine disability. As an initial matter, the Board finds that the Veteran has a current diagnosis of osteoarthritis of both hips. See December 2019 VA "Hip and Thigh Conditions" examination report. The Board acknowledges that in a March 2021 VA medical opinion, a VA examiner stated, "This Examiner was unable to find (as there is no or insufficient medical evidence) that the Veteran has bilateral hip disability. His bone scan and imaging are consistent with what would be expected someone Veteran's age. (In[]fact, considering his co-morbidities, age, life-style and weight, his hip imaging is remarkable and well preserved compared to his peers)." However, the March 2021 VA examiner failed to address the December 2019 VA examiner's diagnosis of osteoarthritis of both hips, which was confirmed by radiographic imaging. The Board also finds that the Veteran's hip symptoms are separate and distinct from the symptoms of his service-connected bilateral lower extremity radiculopathy. See March 2021 VA medical opinion. Therefore, a current disability, to include arthritis, is established. Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran experienced hip pain in service. In the December 2019 VA "Hip and Thigh Conditions" examination report, the Veteran stated that he developed a lot of hip pain during his service as a helicopter pilot. In Correspondence from the Veteran received April 2021, he stated, "While in service, the doctors gave several possibilities about the cause of my back pain, abdominal pain (torso & flank areas), pain through my waste (sic) and pelvis, going through my groin area and inner thighs and hips. The treatment was muscle relaxers, rest, and to stop running for a while. Other than that, there was nothing else they could do." The Veteran is competent to report such observable symptoms, and the Board finds no reason to doubt his credibility. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's in-service hip pain and his current bilateral hip disability. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hip disability had its onset during active service. First, the Board affords great probative value to the April 2021 medical opinions provided by the Veteran's private treating chiropractors, Drs. M.C. and C.C. In an April 2021 letter, Dr. M.C. wrote, "It is my opinion, that it is at least a 50 percent chance that his disability for his conditions, were incurred in or caused by his military service." Dr. M.C. further wrote, in pertinent part, "[The Veteran's] military, civilian, and VA medical records all state the same thing about him having pain in his pelvis, and pain down his groin and inner thighs. That has never changed. Those areas are all connected to each other and interdependent, and they can cause pain in the hip area." In an April 2021 letter, Dr. C.C. highlighted an in-service bone scan of the spine and pelvis dated September 1983, in which the interpreting radiologist noted a "Mild inflammatory reaction of the upper sacral bone, which may reflect some degree of arthritis." Dr. C.C. explained that "This joint is between the lumbar spine and the tailbone and is there to absorb shock between the upper body, the pelvis, and the legs. If it is not working properly, it can cause pain in the back, hips, and groin areas." Ultimately, Dr. C.C. opined, "it is at least a 50 percent chance that [the Veteran's] disability for his conditions, Spine/Abdominal and Torso area/Pelvic area/Groin and Inner Thigh area/Hip area, were incurred in or caused by his military service." The Board affords great probative value to the medical opinions provided by Drs. M.C. and C.C. given their opportunities to examine the Veteran over time as his treating chiropractors, their expertise as Doctors of Chiropractic, and their consideration of the Veteran's medical records. Second, the Board finds it at least somewhat significant that in an August 1998 private computed tomography (CT) scan report of the pelvis and hips, rendered less than six years after the Veteran's separation from active service, the interpreting radiologist wrote, "the hip joint spaces bilaterally appear slightly thinned. The lateral margins of the acetabulum are a bit pointed and sclerotic and the anterior margin of the acetabulum are slightly irregular as well but not on the articulating surface. Similar changes are noted at both margins of the symphysis pubis. These findings are certainly not acute and may indicate some type of indolent underlying arthritic condition. The changes could be due to degenerative arthritis." Third, the Board finds the March 2021 VA medical opinion inadequate as it is based, in large part, on what was found to be a lack of a current bilateral hip disability. However, as discussed previously, there is medical evidence of a current bilateral hip disability; namely, osteoarthritis of both hips confirmed by radiographic imaging. See December 2019 VA "Hip and Thigh Conditions" examination report. Thus, the Board affords little to no probative value to the March 2021 VA medical opinion. For the sake of completeness, the Board notes that it previously found the January 2020 VA medical opinion inadequate in its March 2021 decision. (Continued on the next page) For these reasons, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for a bilateral hip disability is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.