Citation Nr: 22014701 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-37 426 DATE: March 14, 2022 ORDER Entitlement to service connection for a left hip disability is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current left hip disability is causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1995 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left hip disability. In September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. In a November 2021 letter, the Board informed the Veteran that it was unable to produce a transcript of the September 2021 hearing due to audio malfunctions. He was offered the opportunity to appear at another Board hearing and informed that he had 30 days to request another optional Board hearing. To date, no response has been received. The Board notes that the Veteran's notice of disagreement (NOD) also included the issue of entitlement to a temporary total evaluation due to convalescence following left hip arthroscopy, which the RO denied on the grounds that his disability was not service connected. The question of the appropriate rating (to include a temporary total rating) and effective date for the award of service connection, however, are downstream elements for the RO to consider in the first instance. The Board draws the RO's attention to the medical evidence of record, as well as the Veteran's lay statements, regarding his surgery and period of convalescence. Should the Veteran feel dissatisfied with the initial rating or effective date assigned, he may file an appeal with that decision. Entitlement to service connection for a left hip disability is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 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. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The Veteran contends that his left hip disability is secondary to his service-connected low back disability. In the alternative, the Veteran contends that his left hip disability is related to the "extreme wear and tear" on his body during his time in the service. See April 2017 NOD; July 2017 VA Form 9. The Veteran's service treatment records (STRs) are negative for complaints, observations, or treatment regarding a left hip disability. VA treatment records obtained in connection with the Veteran's claim noted a diagnosis of left hip arthritis. See 2016-2021 VA treatment records. In correspondence dated in April 2017, a private physician, Dr. H.L., opined that the Veteran's left hip disability was related to his service-connected low back disability. No rationale was provided. See April 2017 correspondence. The Veteran was afforded a VA examination in June 2016. The examiner noted a diagnosis of left hip osteoarthritis. The Veteran reported first noticing pain in his left hip in 1998 while on active duty after a forced march. He reported that he was treated for the condition during active service with chiropractic treatment and physical therapy. After examination of the Veteran and review of the claims file, the examiner concluded that the Veteran's left hip disability was not proximately due to or the result of his service-connected low back disability. The examiner opined in pertinent part, The vet was found to have Chondrolabral separation at the anterosuperior labrum; no morphologic abnormalities to suggest CAM or pincer type femoroacetabular impingement. In addition Xrays 5/06/2015 indicate mild osteoarthritic changes without acute osseous abnormalities in the left hip. These findings are conditions unrelated to the veteran's service connected back condition. The Veteran was afforded a VA examination in September 2017. The examiner noted a diagnosis of bilateral hip osteoarthritis. The Veteran reported that there was no specific trauma; however, he reported participating in frequent ruck marches and obstacle courses during active duty. He reported undergoing hip surgery in 2016. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran's left hip disability was not causally related to or aggravated by the Veteran's service-connected low back disability. The examiner opined the following in pertinent part, After reviewing the Veteran's C-file and the tabbed evidence thereof, there are several service treatment records suggesting a lower back condition. In addition X-rays 5/16/2015 indicate minimal degenerative changes without acute osseous abnormalities bilaterally. There is no clinical or patho-anatomical correlation between the two conditions. The veteran's current diagnosis is more likely due to an unrelated etiology. In correspondence dated in August 2021, a private physician, Dr. R.B., opined that the Veteran's left hip disability was causally related to active duty, as it was "likely sustained at the same time and by the same causation as the original service related low back pain, but not identified as such at the time of determination." See August 2021 correspondence received in September 2021. After a review of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the evidence is in equipoise as to whether the Veteran's current left hip disability is causally related to his active service. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current left hip disability. VA treatment records, as well as the June 2016 and September 2017 VA examinations, noted a diagnosis of left hip osteoarthritis. In addressing the second element, the evidence shows that the Veteran has competently and credibly reported that he participated in frequent ruck marches during active duty and experienced left hip pain following those activities. The Veteran is competent to provide such assertions, as his experiences during the military are within the realm of first-hand knowledge. He is deemed credible because he has remained consistent in his assertions. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Affording the Veteran the benefit of the doubt, the Board finds that the evidence establishes that the Veteran incurred a left hip injury during active duty. (Continued on the next page) With respect to the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current left hip disability is causally related to his active service. The Board finds the August 2021 nexus opinion from Dr. R.B. of great probative weight, as the physician rendered his opinion after review of the Veteran's medical records and provided a reasoned conclusion and detailed rationale. There is no medical opinion evidence to the contrary. Additionally, the Board finds the Veteran's statements both competent and credible regarding his participation in frequent ruck marches during active duty and his resultant hip pain which required surgery six years after separation. The Board assigns less probative weight to the June 2016 and September 2017 VA examinations, as the examiners failed to address direct causation and aggravation on a secondary basis. The Board also assigns less probative weight to the April 2017 private opinion from Dr. H.L. to the extent the physician failed to provide a rationale for the conclusion reached. The evidence is therefore at least evenly balanced as to whether the Veteran's left hip disability is causally related to his active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a left hip disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.