Citation Nr: A25035365 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240702-453598 DATE: April 16, 2025 ORDER Entitlement to service connection for right femur fracture with subsequent pinning of the right upper thigh; right hip strain with right lower extremity lumbar radiculopathy, is granted. Entitlement to service connection for left hip strain with left lower extremity lumbar radiculopathy as secondary to right femur fracture with subsequent pinning of the right upper thigh; right hip strain with right lower extremity lumbar radiculopathy, is granted. FINDINGS OF FACT 1. The Veteran's right femur fracture with subsequent pinning of the right upper thigh existed prior to his active-duty service, but was aggravated beyond the natural progression of the disability by his service. 2. The Veteran's current right hip strain with lower extremity lumbar radiculopathy is the result of his right femur fracture with subsequent pinning of the right upper thigh. 3. The Veteran's left hip strain with left lower extremity lumbar radiculopathy is also the result of his right femur fracture with subsequent pinning of the right upper thigh. CONCLUSIONS OF LAW 1. The criteria for service connection for right femur fracture with subsequent pinning of the right upper thigh have been met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.304(b). 2. The criteria for service connection for right hip strain with right lower extremity lumbar radiculopathy, secondary to right femur fracture with subsequent pinning of the right upper thigh, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. 3. The criteria for service connection for left hip strain with left lower extremity lumbar radiculopathy, secondary to right femur fracture with subsequent pinning of the right upper thigh, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 13, 1974 to May 31, 1974. The Agency of Original Jurisdiction (AOJ) issued a rating decision denying the Veteran's claims for service connection for bilateral hip strain with lower extremity lumbar radiculopathy in September 2019 which constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Following higher-level review (HLR) then an appeal to the Board which resulted in remand, the AOJ issued another decision in July 2022 denying the Veteran's service-connection claims. The Veteran's representative submitted a motion for revision of the July 2022 AOJ decision based on clear and unmistakable evidence (CUE), which the AOJ discussed in an August 2022 rating decision. Following HLR of the July and August 2022 rating decisions, the claims were returned for further development following which the AOJ once again denied the service-connection claims in a June 2023 rating decision. In December 2023, the Veteran requested HLR review of the June 2023 decision. In April 2024, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior June 2023 decision. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b); see also Spicer v. McDonough, 61 F.4th 1360, 1365-66 (Fed. Cir. 2023) (holding all that is needed is a "but for" causation or aggravation to show entitlement to secondary service connection). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Right femur fracture with subsequent pinning of the right upper thigh The Veteran contends that his right femur fracture with subsequent pinning of the right upper thigh was aggravated by his active-duty service, resulting in his current disability of right hip strain with right lower extremity lumbar radiculopathy. Specifically, the Veteran reports that he had surgery to repair a right femur fracture approximately one year prior to his May 1974 enlistment, and that the right femur fracture with subsequent pinning of the right upper thigh was asymptomatic and apparently healed at the time of his enlistment, but due to the stress put on his leg during basic training his preexisting condition was worsened beyond its natural progression, resulting in his current right hip disability. See HLR Informal Conference Worksheet dated October 17, 2022. The Veteran's April 1974 enlistment examination noted a right upper leg scar. The Veteran was admitted in Army hospital for administrative purposes because he had complaints of pain and weakening in the right thigh related to a one year old right upper femur fracture with subsequent pinning. The Veteran was "unable to keep up in training," and subsequently a Medical Evaluation Board proceeding in May 1974 found him medically unfit due to pain and weakening in the right thigh secondary to a one year old fracture with subsequent pinning of the right thigh. The Veteran's service records include a Medical Board determination dated May 24, 1974, finding that he had "[p]ain and weakening of the right thigh secondary to old fracture sustained one year ago with subsequent pinning of upper right thigh." The record includes a July 2019 VA examination, in which the examiner noted bilateral hip strain and radiculopathy. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As a rationale, the examiner stated that although the Veteran's radiculopathy and hip pain are most likely aggravated by in-service physical training, there is no proof in the Veteran's chart that support any previous complaints of back, hip or leg pain. The AOJ requested an addendum opinion from the July 2019 VA examiner to clarify whether the Veteran's right leg/thigh/hip pain during service was clearly and unmistakably only the natural progression or consequence of the pre-service fractured right leg that required pinning, without evidence of worsening to an abnormal or unexpected level of severity. The Board has previously found that the August 2019 addendum opinion was inadequate due to its "mere inclusion of the facts of the case in the rationale without providing analysis." Following remand from the Board, a December 2021 VA medical opinion was procured, then an addendum VA opinion in March 2022. The March 2022 opinion found "no evidence of aggravation beyond a natural progression" of the Veteran's right femur fracture with subsequent pinning. The Veteran submitted a December 2021 private medical which states: After a review of the pertinent records and the Veteran['s] history, it is my professional opinion that the evidence does not clearly and unmistakably show (i.e., it is undebatable) that the Veteran's right hip/leg/thigh condition was not aggravated by service or that any increase in disability was due to the natural progression of the condition. It is at least as likely as not that his right hip condition with lower extremity radiculopathy was aggravated by his service. He reports that he was asymptomatic and recovered from his preexisting injury prior to enlistment. His entrance physical only notes a scar to the right upper leg and lists no other abnormalities of the lower extremities. His in-service complaints of pain and weakening in the right thigh are well documented and the previous C&P examiner also opined that there was an aggravation of his condition due to in-service physical training. Based upon the documentation I have evaluated as well as the veteran's history it is evident that his baseline at entrance was pain free with no noted abnormalities of strength to include complaints of weakness. He has documented in service stressors and has complained of pain and disability since. Although he has not had adequate medical care for these issues over the years, he reports that he self-treated and avoided medical appointments due to financial constraints of having a large family and inadequate resources. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. In this case, there is a question as to whether the claimed right femur fracture preexisted the Veteran's military service from May 13, 1974 to May 31, 1974. In the Veteran's entrance examination conducted on April 19, 1974, he was noted to have a scar on his upper right thigh, but there is no mention on the entrance examination of a previous fracture. The appellant established "veteran" status based on his period of active-duty service from May 13, 1974 to May 31, 1974. The Veteran's April 19, 1974 entrance examination is absent of any notations of defects, infirmities, or disorders of the right femur or hip, apart from noting a scar on his upper right thigh. Additionally, the evidence is at least in approximate balance as to whether right hip disability manifested during service. The Veteran reports that that he experienced right hip pain during basic training, which was the basis for his separation from service. Therefore, with respect to the Veteran's right hip fracture with subsequent pinning of the upper thigh, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as evidence that is obvious or manifest. 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). Here, the Veteran does not dispute that his right hip fracture with subsequent pinning of the right upper thigh existed prior to service. The Veteran reports that he had a right hip fracture and surgery to correct it approximately one year prior to his enlistment, and that such hip fracture was asymptomatic and apparently healed at the time of his enlistment. Thus, the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's right hip fracture with subsequent pinning of the right upper thigh preexisted service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing 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). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Regarding the second prong, the VA medical opinions at best say that there is no evidence of aggravation, which is insufficient. See Horn, supra. The December 2021 private medical opinion addresses the evidence under the correct standard, and further finds based on the evidence of record that it is at least as likely as not that the Veteran's right hip disability was worsened beyond its natural progression by service, and provides a sufficient rationale in support. The most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. 2. Right and left hip strain with lower extremity lumbar radiculopathy The Veteran contends that his right hip condition that existed prior to and was aggravated by service caused a change of gait which has led to his current right and left hip strain with lower extremity lumbar radiculopathy. An April 2022 VA medical opinion stated regarding the etiology of the Veteran's bilateral hip conditions: When pain is confined to a specific area this will often cause a person to move differently to avoid putting weight on the affected area or engaging in any activity that might increase pain. This, in turn, can lead to overcompensation when there is an opposing joint to put more of the strain or workload on. This appears to be the case with this Veteran who has a history of traumatic injury of the Rt leg. He has resultingly overused and stressed the hips and lowback. The December 2021 private clinician also opined that it was at least as likely as not that the Veteran's current bilateral hip strain with lower extremity lumbar radiculopathy is at least as likely as not due to the right femur condition that existed prior to and was aggravated by service, and it is at least as likely as not that his left sided hip condition with radiculopathy is related on a secondary basis ... It is well known throughout the orthopedic community that change to an individual's natural gait, stance, or posture will precipitate pain and dysfunction in the lower extremities, which could range from the feet to the lower back. An alteration to one's natural ambulation has also been known to cause abnormal movement of the hip joints, leading to inflammation of the tendons, soft tissue, and fascia of the hip flexors and lower back paraspinal muscles. This is consistent with the kinetic chain theory that links impairments in the lower extremity strength, stability, and/or flexibility to back injury due to kinetic chain forces. His chronic right hip condition can precipitate dysfunction on the left. The surrounding joints in the body are not accustomed to this abnormal movement, causing them to compensate their movements, thus increasing the demands placed on the joint, muscles, and soft tissues of the hips and back. (Continued on the next page) ? Based on the foregoing, the Board finds that the competent and credible evidence of record establishes that the Veteran's current right and left hip disabilities are service-connected secondary to his right femur fracture which existed prior to and was aggravated beyond its natural progression by the Veteran's service. His claims for service connection for right and left hip strain with lower extremity lumbar radiculopathy are granted. S. Kim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. West 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.