Citation Nr: A25035128 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241016-483601 DATE: April 16, 2025 ORDER Entitlement to service connection for a left hip disability to include degenerative joint disease is denied. FINDINGS OF FACT There is clear and unmistakable evidence that left hip disability to include degenerative joint disease preexisted the Veteran's service and was not aggravated by his service. CONCLUSIONS OF LAW The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from September 1979 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 3, 2024 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2024, the Veteran submitted VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of April 3, 2024-the date of the rating decision on appeal. See 38 C.F.R. §§ 20.301. If the Veteran submitted evidence that was added to the record after April 3, 2024, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501. Service Connection 1. Entitlement to service connection for a left hip disability to include degenerative joint disease. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). When the veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. On the other hand, where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.' Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) ("Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease."); see also 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable."). As an initial matter, the record has raised the issue of whether the Veteran had a preexisting disability. As noted above, a veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby, supra). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). Here, a February 1979 Report of Medical Examination at enlistment documented a left hip condition that had occurred as child in 1973 noted as a dislocated hip. The Veteran did not report any symptoms at enlistment, but orthopedic evaluation diagnosed the Veteran with slipped capital femoral epiphysis. As such, with respect to her left hip, the disability was noted to pre-exist service. Therefore, the presumption of soundness does not apply. As noted, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. In this regard, a review of the Veteran's service treatment records shows no reports or treatments indicating impairment for a left hip disability. Additionally, the Veteran's July 1980 separation examination showed that while she reported her pre-service left hip injury, she did not report any current symptoms or abnormalities. The Board notes that treatment alone does not establish a worsening, as it does not show an increase in frequency or severity of the condition. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here there were no temporary or intermittent flare-ups, or any complaints whatsoever, noted. After separation from service, VA treatment records show the Veteran first reported pain affecting the left hip in 1997. An April 2023 VA examination report shows that after a physical examination and review of the claims file, the VA examiner remarked that the Veteran's diagnosis of residuals status post left total hip replacement (which clearly and unmistakably existed prior to service) was not aggravated beyond its natural progression by military service. The VA examiner noted the Veteran's entrance examination which showed she had a history of slipped capital femoral epiphysis 1973 that required surgery and pinning that was removed 2 1/2 months later. The VA examiner also noted that the Veteran's separation examination showed normal bilateral extremities. The VA examiner also reported that there was no evidence of hip complaints or hip injury during military service or within 1 year of leaving service. The VA examiner determined that there was no evidence of continuous left hip complaints until many years after separation from service. VA treatment records were reviewed and in 2003, showed malunion of left femoral neck fracture with severe degenerative joint disease. She was noted to undergo a left total hip replacement in 2004. Based on medical literature review and review of the claims file, the VA examiner remarked that the Veteran eventually developed degenerative joint disease in the left hip. Degenerative joint disease in the left hip and subsequent left total hip replacement surgery to treat the degenerative joint disease were the natural progression of her left hip condition. The VA examiner reported that there was no medical evidence or literature reviewed that shows that military service aggravated her left hip condition beyond its natural progression. In a July 2023 statement submitted by the Veteran, she reported that she did not seek treatment for the left hip condition until 1997. The Veteran reported that while she did not see treatment for the left hip condition until 17 years after separation from service, she also had issues with her hip since separation from service. A July 2023 statement from the Veteran's close friend of forty-seven years, reported that she was also aware of the hip condition since the Veteran was 14 years old. The Veteran's friend reported that she witnessed the Veteran limping due to the hip condition before and after separation from service. After a review of the evidence of record, the Board finds that the evidence persuasively supports the finding that left hip disability clearly and unmistakably was not aggravated by service beyond its natural progression. The Board acknowledges the Veteran's assertion that her preexisting left hip disability was aggravated during service. However, she is not competent to render an opinion on the matter of whether any worsening was beyond the natural progress of the disease. As such, the Board finds that the April 2023 VA examination and opinion provides the most probative evidence of record with respect to the nature and etiology of the Veteran's current left hip disability. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The Board finds that this evidence is persuasive and has great probative weight. The medical report and opinion are detailed, provided a rationale for the opinions, and cited to the facts which supported the opinion. For these reasons, the Board finds that the evidence is clearly and unmistakably against finding that there was in-service aggravation of a left hip disability, and the claim must be denied. Michael Lane Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin 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.