Citation Nr: A25035349 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 190423-19104 DATE: April 16, 2025 ORDER The claim for entitlement to service connection for left hip condition is denied. FINDING OF FACT There is no evidence of an in-service event or injury that caused or is otherwise related to the Veteran's claimed left hip condition. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a left hip condition have not been met. 38 U.S.C. §§1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Army, with active duty service from May 1976 to October 1976, March 1977 to September 1992, September 2004 to January 2006. The Veteran's service includes participation in Operation Iraqi Freedom. This matter comes before the Board of Veterans' Appeals on appeal of an April 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran filed a VA Form 10182 and elected the hearing docket. In April 2020, the Veteran filed a timely switch to the evidence submission docket. Therefore, the Board may only consider the evidence of record at the time of the RO decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following VA's notice that the appeal has been switched to the Evidence Submission docket. 38 C.F.R. § 20.303(b)(2). The Board notes that the evidence switch docket letter was issued on August 27, 2024. The Board notes that a Board decision was previously issued on this matter in July 2023, prior to the evidence docket switch being completed. The Board notes that the docket switch was finalized on August 27, 2024. The Board notes that pursuant to the docket switch letter, the Board has considered evidence within 90 days of the August 27, 2024, docket switch letter. The Board notes that no additional substantive medical or lay evidence was received within 90 days of the original April 1, 2020, VA Form 10182 requesting to switch dockets. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This matter is now properly before the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). With a chronic disease shown 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, i.e., "nearly equal". 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). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). Entitlement to service connection for a left hip condition. The Veteran contends that he should be service connected for his left hip condition. The Board has carefully and sympathetically reviewed the Veteran's entire claims file. The Board finds that there was no evidence submitted within the 90-day evidentiary window that started on August 27, 2024. In a November 2018 VA treatment record, it was noted that the Veteran reported left hip pain which developed over the prior year. Imaging from x-rays revealed minimal arthritic changes of the left hip, diagnosed as greater trochanteric bursitis of the left hip. The Board notes that the Veteran does have a current diagnosis of a left hip condition of record. The Veteran's December 2018 claim form indicated that he had a left hip condition; however, there was no other evidence submitted to support his claim. The Veteran did not provide any medical records, private treatment records, lay statements or argument in support of his claim. Furthermore, the Veteran's VA treatment records and service treatment records did not show complaints of pain or problems with the left hip while in service. The Veteran did not provide any information or contentions that related his left hip condition to service. Further, while arthritis is a chronic disease under 38 C.F.R. § 3.309(a), the Board does not find the probative evidence of record allows for service connection on a chronic basis. There is no evidence that left hip arthritis was noted or affirmatively shown to have been manifested in service or to a compensable degree within one year of discharge. 38 C.F.R. §3.303(a), 3.307, 3.309. There is no indication that he was diagnosed with a left hip condition at that time. His post-service medical records do not refer to chronic or ongoing left hip pain at any point until November 2018, over a decade since the Veteran's last separation from active duty. The Veteran's did not provide any indication of a diagnosis or treatment for a left hip condition in treatment notes between his separation from service in January 2006 and the November 2018 diagnosis. The Board finds that the Veteran has not asserted any contentions or evidence in support of the contention that his left hip condition was noted in service or within one year of service with continuity of symptomatology since service. The Board notes that the Veteran was not afforded a VA examination for his claimed left hip disability. The Board finds that the only evidence of record associating the diagnosed left hip condition with active-duty service first arose in the August 2020 appellate brief. When the April 2019 rating decision on appeal was issued, the record did not reflect any evidence of in-service left hip complaint, injury, or pain, nor did it reference reports of or treatment for left hip pain within a year of separation. The Veteran's filings in this appeal did not indicate or assert the means by which his claimed condition could be associated with an in-service injury or event. The VA must provide an examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App.79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2018). The Board has considered the August 2020 statement submitted by the Veteran's representative in which it was argued that a remand is warranted for examination and consideration of the combat presumption under 38 U.S.C. § 1154(b).However, the Board does not find that there was sufficient medical or lay evidence at the time of the April 2019 rating decision to suggest that a left hip disability was related to combat, and as such, the Board cannot identify a predecisional duty to assist error. In a February 2016 Gulf War examination note, the only musculoskeletal symptoms reported by the Veteran involved the knee and lower leg. The Veteran did file a claim for the left hip and left knee in December 2018. However, he did not suggest that these conditions were incurred in combat. In fact, a November 2018 VA treatment note reflects that left hip pain only began over the past year. At no point prior to the April 2019 rating decision did the Veteran suggest he suffered a left hip injury as a result of combat. Under 38 U.S.C. § 1154(b), "[i]n the case of any veteran who engaged in combat with the enemy in active service with a military, naval, air, or space organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran." In the present case, the Veteran did not allege that his left hip disability manifested during service, and as such, the agency of original jurisdiction did not err in not getting a VA medical examination. Therefore, the argument provided by the Veteran's representative does not warrant a remand under the AMA. If the Veteran would like further consideration of this argument, he is invited to file a Supplemental Claim. Here, the Board finds that there is no evidence of record that the Veteran's left hip condition manifested during an applicable presumptive period or from an event, injury, or disease that occurred in service. There is also no indication of record that the Veteran's left hip condition or hip pain may be associated with service. Thus, in this case, there is insufficient evidence of record to trigger the requirement that the VA provide the Veteran with a VA examination. The Board finds that the RO did not make a pre-decisional duty to assist error. Under the AMA, the Board's ability to remand claims for additional development, including to obtain a VA examination or medical nexus statement, is limited to instances where there was a pre-decisional duty to assist error, or a failure to satisfy a regulatory or statutory duty. Therefore, the Board finds that the evidence of record is persuasively against granting the Veteran's claim for service connection for a left hip condition. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Counsel, H. Hailu 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.