Citation Nr: 24005255 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 18-31 032 DATE: February 1, 2024 ORDER Service connection for a left hip disability is denied. FINDING OF FACT The Veteran did not have a current left hip disability at any time during the pendency of this appeal. CONCLUSION OF LAW The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to May 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, during the course of the appeal, the Veteran died. His surviving spouse has been substituted as the Appellant and continues his appeal. In the Veteran's June 2018 substantive appeal (VA Form 9), he requested a videoconference hearing before a Veterans Law Judge. In March 2023, the Board sent the Appellant a hearing clarification letter and asked for her to clarify her desire for an optional Board hearing. The letter indicated that if the Appellant did not respond to the letter within 30 days, the Board will assume she does not want a hearing. As the Appellant did not respond to this letter, the Board will proceed with adjudication of this issue. This issue was previously remanded by the Board in April 2023 for additional development. Service connection for a left hip disability is remanded. During his lifetime, the Veteran had a pending claim for service connection for a left hip disability. He asserted a current left hip disability was due to or aggravated by a service-connected disability or disabilities, and service connection was therefore warranted on a secondary basis. Service connection may be granted for a 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 service. 38?C.F.R. §?3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases 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. §§?1101, 1112, 1113; 38?C.F.R. §§?3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. Finally, service connection may be awarded for a disability due to or aggravated by a service-connected disability or disabilities. 38 C.F.R. § 3.310. During his lifetime, the Veteran had a pending claim for service connection for a left hip disability. As noted above, this issue was remanded for additional development in April 2023. On that occasion, the Board noted that while an April 2017 VA examination of the Veteran's left hip found no evidence of a current disability, a subsequent April 2021 VA treatment record noted pain of the left hip. The Board further noted that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that pain, even in the absence of a presently diagnosed condition, can constitute a disability for VA purposes if it causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board determined, remand was required for an addendum opinion which addressed whether the Veteran's left hip pain could result in sufficient functional impairment to qualify as a current disability. Such opinions were received in July and November 2023. The Board finds these medical opinions are sufficient for VA purposes, as they provided the requested opinions based on review of the claims file and are accompanied by a detailed rationale. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Considering first the service medical records, these are negative for any diagnosis of or treatment for a chronic left hip disability. Likewise, private and VA treatment records immediately following service do not reflect a left hip disability immediately following service. Thus, the Board must conclude a current left hip disability was not incurred in service and did not manifest to a compensable degree within a year of service separation. At the time the Veteran filed a service connection claim for a left hip disability, he asserted such a disability was secondary to a service-connected low back disability. He did not allege onset of a chronic left hip disability during service. As such, service connection on a direct basis is not warranted, as the evidence is persuasively against such a claim. Pertinent to any claim for service connection is a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110" refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Additionally, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Upon receipt of the Veteran's service connection claim, he was afforded a July 2017 VA examination. Upon examination of the Veteran, a VA examiner found a current left hip disability was not present. Likewise, on remand, VA medical opinions dated in July and November 2023 also found a current left hip disability was not present at any time during the pendency of the appeal. The July 2017 VA examination noted normal range of motion for both hips, and an X-ray of the left hip was within normal limits, with no noted abnormalities. Rather, according to the 2023 medical opinions, the Veteran was experiencing radiation of his pain resulting from his degenerative disc disease of the lumbosacral spine into his left lower extremity. The Board notes the Veteran had already been granted service connection for degenerative disc disease of the lumbosacral spine, as well as a separate compensable rating for radiculopathy into the left lower extremity resulting from his lumbosacral spine disability. Reports of radiation of the Veteran's low back pain into his left lower extremity date back to service. According to a February 2000 private treatment record, the Veteran had lumbar radiculopathy at that time, with radiation into the left lower extremity. Likewise, post-service treatment records confirm ongoing radiation of pain into the left leg. For example, a February 2011 private treatment record noted the Veteran reported some radiation of his pain into his left leg. Subsequent VA outpatient treatment records, to include an April 2021 clinical notation, reflect the Veteran's complaints of left hip pain; however, they do not reflect a current diagnosis of a left hip disability. Based on this evidence within the record as well as the various VA medical opinions, the Board finds a current left hip disability has not been established. While the Veteran credibly reported pain in the area of his left hip during his lifetime, the medical evidence of record suggests this pain was related to, and a symptom of, his lumbosacral spine disability. Moreover, he was granted service connection for both a disability of the lumbosacral spine and radiculopathy of his left lower extremity. The Veteran and the Appellant have both alleged he had a current left hip disability. As laypersons, however, they are not capable of making medical conclusions; thus, these statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and lay statements therein cannot be accepted as competent evidence. Neither the Veteran nor the Appellant are also reporting an expert opinion as told to them, and their lay contentions have not subsequently been confirmed by a competent expert. (Continued on the next page.) ? Therefore, the Board finds that at no time during the pendency of the claim does the Veteran have a current diagnosis of a left hip disability, and the record does not contain a recent diagnosis of such disability prior to the Veteran's filing of a claim. Thus, as the totality of the evidence is persuasively against the claim, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claims for service connection for left hip, that doctrine is not applicable in the instant appeal and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.