Citation Nr: 22017453 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-58 000 DATE: March 25, 2022 ORDER Entitlement to service connection for a bilateral hip disability is denied. FINDING OF FACT The evidence of record is persuasively against finding that the Veteran's bilateral hip disability arose during or as a result of his active service, including as secondarily caused or aggravated by his service-connected knee and back disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to April 1981. This matter is on appeal from a May 2017 rating decision. In September 2019, the Veteran testified at a hearing before a Veterans Law Judge. A transcript is of record. In March 2020, the Veteran was notified that the Veterans Law Judge who held the September 2019 hearing is no longer available to participate in the decision. The Veteran's October 2017 substantive appeal (VA Form 9) was limited to the issue of an increased rating for chronic lumbar strain with degenerative disc disease. However, during the September 2019 hearing, the previous Veterans Law Judge and the Veteran's representative determined that the issues on appeal also included an increased rating for a surgical scar and service connection for a bilateral hip disability. By consistently treating a claim as if it is part of a timely filed substantive appeal, VA effectively waived all objections to the procedural adequacy of the appeal with respect to that issue. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). In its July 2020 decision, the Board stated that it found the Board had led the Veteran to believe that service connection for a bilateral hip disability was on appeal; therefore, the Board had taken jurisdiction of that issue. Finally, in the July 2020 decision, the Board remanded the hip issue for additional development, to include corrective action for a fully adequate VA examination. The Board finds that the RO substantially complied with its remand directives, insofar as the new VA examination addressed the deficiencies set forth in the Board's remand, and the Board may now proceed with adjudication. 1. Entitlement to service connection for a bilateral hip disability The Veteran asserts that he experiences a bilateral hip disability that arose during or as a result of his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, there exist two potential theories of entitlement to secondary service connection namely, causation under § 3.310(a) and aggravation under § 3.310(b). In this case, the Veteran's service treatment records (STRs) are negative for treatment, complaints, or diagnosis for hip conditions. The Veteran's VA treatment records are negative for treatment or diagnosis of hip conditions in the 12-month period immediately following his separation from active service. They are also negative for medical opinions supporting his claim. July 2006 VA treatment records reflect treatment for chronic hip pain. His VA treatment records reflect ongoing treatment for chronic hip pain. See, e.g., March 2011, May 2009, and December 2008 VA treatment records. In February 2017, the Veteran filed a claim for service connection for a bilateral hip condition. During the Veteran's May 2017 VA examination for hip and thigh conditions, the VA examiner noted a diagnosis for bilateral degenerative arthritis of the hips. The Veteran denied any current pain or issues with his hips. In an accompanying VA medical opinion, the VA examiner opined that it was less likely than not that his hip condition arose during or as a result of his active service. The VA examiner's rationale noted the lack of evidence of hip problems during service, and the Veteran's weight gain after separation from service, which was the more likely cause of the condition. During the Veteran's September 2019 Board hearing, he testified that he experienced occasional problems with his hips, but no doctor had ever told him that his condition was related to service. In a July 2020 VA medical opinion, the VA examiner found that the Veteran's hip condition was less likely than not related to service, including as secondarily caused or aggravated by his service-connected knee or back disabilities. The VA examiner's rationale noted once more the lack of evidence of hip problems during service, and the Veteran's weight gain after separation from service, which was the more likely cause of the condition. The examiner also noted that the Veteran drank more than five alcoholic beverages per day, which was likely a major contributor to his weight gain and subsequent hip problems. The Veteran has asserted that his hip conditions arose during or as a result of his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the July 2020 VA examination opinion and medical evidence of record. The Board finds that the evidence of record is persuasively against the Veteran's claim. The Veteran's STRs are negative for evidence of a hip condition during service, and the first documented treatment for a hip condition is from 2006, decades after separation from service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection, within the context of the entire record. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). No medical opinion supports the Veteran's claim, and the VA examiner opinions of record are all negative, including for secondary causation or aggravation. Additionally, during his Board hearing, the Veteran testified that no doctor had told him that his hip condition was related to service, and he did not provide any explicit theory as to how his condition was related to his active service. Based on these facts, the Board finds the evidence of record is persuasively against the Veteran's claim. Accordingly, the claim for service connection for a bilateral hip condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veterans claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.