Citation Nr: 24013149 Decision Date: 03/28/24 Archive Date: 03/28/24 DOCKET NO. 23-00 250A DATE: March 28, 2024 ORDER Entitlement to service connection for a right hip disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has a right hip disability that is related to service. CONCLUSION OF LAW The criteria for service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1988 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) from a June 2018 decision by the Agency of Original Jurisdiction (AOJ) which was issued under VA's Legacy appeal system, in place at the time. The Veteran did not subsequently file a traditional Legacy appeal Notice of Disagreement (NOD), and instead, filed a VA Form 10182 in June 2019 and requested that his appeal be placed on the Board's Hearing Docket under VA's Appeals Modernization Act (AMA) system. However, in a June 2022 remand, the Board found that in reviewing the procedural history, it committed a procedural error in recognizing the Veteran's VA Form 10182 and initially treating his appeal under the AMA system. Hall v. McDonough, 34 Vet. App. 329 (2021). As noted by the Board in the June 2022 remand, although the AMA controls appeals that arise from all rating decisions issued on February 19, 2019, or later, the rating decision giving rise to this matter was issued in June 2018 before the AMA took effect. Second, the record shows that the Veteran did not choose to opt into AMA through VA's Rapid Appeals Management Program (RAMP) to have his appeal developed and heard under the AMA system. For these reasons, the Veteran's appeal should have correctly remained in VA's Legacy system, and procedurally, the Veteran's appeal should have remained in a posture where it was awaiting receipt of a timely NOD from the Veteran indicating his desire to seek appeal of the AOJ's January 2019 denials. As the United States Court of Appeals for Veterans Claims (CAVC) held in Hall, such error is not jurisdictional in nature, but rather is a procedural error that may be waived at the Board's discretion. In this case, the Board in the June 2022 remand found that the Veteran was least prejudiced by the Board's procedural error if it waived use of the improper VA 10182 and simply accepted and recognized the VA 10182 as the Veteran's timely Legacy appeal NOD. Thus, the Veteran's appeal was restored under the Legacy system. Accordingly, the June 2023 remand determined that the correct status of the Veteran's appeal was that it was re-docketed under the Legacy system and the Veteran's June 2019 VA Form 10182 was accepted as a timely NOD for the issue on appeal. Per the June 2022 Board remand instructions, VA issued an SOC to the Veteran in August 2023. The Board certified the appeal in November 2023 and noted that the Veteran did not elect an additional hearing. The Board additionally notes that the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in June 2022 which also addressed whether the issue before could be adjudicated under the AMA or was a Legacy appeal. Regardless, as the Board is granting in full the benefits sought on appeal, it follows that any ambiguity regarding hearing requests regarding this issue is inconsequential and, at most, harmless error, as the appeal is granted in full. See 38 C.F.R. § 20.1102. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran's service treatment records demonstrate that in January 2010, it was noted that the Veteran had musculoskeletal symptoms for the last year as he had right hip discomfort which seemed to fluctuate with stress. A February 2013 service treatment record also noted complaints of right hip pain. In a July 2019 correspondence, a private physician noted that the Veteran initially injured his hip while in service during a fall in 2013. This fall would be considered the primary causally relating factor as the in-service fall initiated the Veteran's degenerative joint disease in the right hip. Other factors included his left knee and low back disabilities which resulted in abnormal gait patterns over time. The Veteran underwent a VA examination in April 2017. The examiner opined that the Veteran's osteoarthritis of the right hip was at least as likely as not secondary to his service-connected left knee disability. In a May 2017 addendum opinion, the April 2017 VA examiner indicated that she changed her opinion as the Veteran's in-service in fall in 2013 did not report right hip pain. The examiner also noted that the Veteran did not report right hip pain at his exit interview as his only concern was his left knee. As a result, the examiner opined that the Veteran's right hip disability had no relationship to his left knee disability. The Veteran underwent a VA examination in July 2023. The examiner opined that it was at least as likely as not that the Veteran's right hip disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran had right hip osteoarthritis that was status post right hip total arthroplasty and that a January 2010 service treatment record demonstrated complaints of continuing right hip pain. The examiner also noted that the Veteran suffered an in-service fall in 2013 where he fell on his right wrist and right hip. While the Veteran did not have any right hip complaints at the time of this fall, his hip difficulties were well documented in the following years after this event. The examiner also opined that it was at least as likely as not that the Veteran's right hip disability was caused or aggravated by his service-connected low back left knee and low back disabilities. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a right hip disability is warranted. Initially, the Board notes that as there is a current diagnosis of right hip osteoarthritis that was status post right hip total arthroplasty, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As reflected above, the Veteran's service treatment records demonstrate multiple reports of right hip pain in service as well as an incident in 2013 where the Veteran fell on his right side. The Board notes that in a May 2017 VA addendum opinion, an April 2017 VA examiner opined that that it was less likely than not that the Veteran's right hip disability was caused by the Veteran's service-connected left knee disability. However, the Board notes that the examiner did not specifically address whether the Veteran's right hip disability was caused or aggravated by his service-connected left hip disability. Additionally, a private physician in June 2019 noted that the Veteran's left knee disability resulted in abnormal gait patterns over time while a July 2023 VA examiner opined that it was at least as likely as not that the Veteran's right hip disability was caused or aggravated by his service-connected low back left knee and low back disabilities. Notably, the private and July 2023 VA physicians indicated that they reviewed the Veteran's treatment records and provided a detailed history and detailed rationale for their opinions. The Board also notes that the June 2019 private physician and July 2023 VA examiner both determined that the Veteran's right hip disability was a result of the Veteran's service on a direct basis as well as secondary to his service-connected low back disability. The July 2023 VA examiner specifically noted that a January 2010 service treatment record demonstrated complaints of continuing right hip pain and the Veteran also suffered an in-service fall in 2013 where he fell on his right wrist and right hip. While the Veteran did not have any right hip complaints at the time of this fall, his hip difficulties were well documented in the following years after this event. Again, both the June 2019 private physician and July 2023 VA examiner also found that the Veteran's current right hip disability was secondary to his service-connected low back disability. The Board finds persuasive opinions from the opinions of the June 2019 private physician and July 2023 VA examiner attributing the Veteran's right hip disability to his service on a direct basis. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for a right hip disability is granted on a direct basis. See 38 U.S.C. § 5107(b). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board DeFrank, James 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.