Citation Nr: A25035798 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240731-460002 DATE: April 18, 2025 ORDER Entitlement to service connection for a right hip condition is granted. Entitlement to service connection for an acquired psychiatric condition, as secondary to service-connected right hip condition, is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, he experienced continuity of symptomatology since service related to his right hip condition. 2. Resolving all doubt in favor of the Veteran, his service-connected right hip condition caused his acquired psychiatric condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip condition have been met. 38?U.S.C. §§?1110, 1131, 5107;?38?C.F.R. §§?3.102, 3.303, 3.307, 3.309.? 2. The criteria for service connection for an acquired psychiatric condition, as secondary to service-connected right hip condition, have been met. 38?U.S.C. §§?1110, 1131, 5107;?38?C.F.R. §§?3.102, 3.310.??? REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to March 1976. This appeal has a lengthy procedural history and includes several Board decisions, Board remands, and United States Court of Appeals for Veterans Claims (CAVC) remands. Most recently, in December 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a November 2023 decision. In April 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2023 decision. In July 2024, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 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 Right Hip Condition The Veteran seeks service connection for a right hip condition that he contends has been ongoing since military service. See July 2024 VA 10182 Attachment. As an initial matter, a veteran 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. When no preexisting condition is noted upon entry, the veteran is presumed to have been?sound?upon entry and the presumption of?soundness?arises. To rebut the presumption of?soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. If the VA fails to rebut the presumption of?soundness, the claim is for service connection, not aggravation. 38 U.S.C. § 1111. Here, per the Veteran's reports, the record evidences a preexisting right hip condition prior to service. However, the Veteran's entrance examination showed no right hip complaints, he is presumed sound upon entry into service, and the VA has not shown by clear and unmistakable evidence that the condition existed prior to service and was not aggravated by service. Therefore, the claim is for service connection, not aggravation, and the Board will adjudicate the claim as such. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303. Service connection generally requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as?arthritis, will be presumed related to service if they were noted as chronic in service, manifested to a compensable degree within a year of separation from service, or if continuity of the same symptomatology of those diseases existed since service, with no intervening cause. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki,?708 F.3d 1331, 1338?(Fed. Cir. 2012); Fountain v. McDonald,?27?Vet. App.?258?(2015);?38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.? 38?U.S.C. §?5107;?38?C.F.R. §?3.102; see also Lynch v. McDonough,?21 F.4th 776 (2021).? Analysis As to a current disability, there is no dispute that the Veteran has osteoarthritis of the right hip. See October 2017 Hip and Thigh Conditions VA Exam. Notably, the Veteran's disability is considered a chronic disease pursuant to 38 C.F.R. § 3.309. As to an in-service incurrence, the Veteran reported that he slipped and fell on broken asphalt during a running exercise in basic training at Fort Jackson, South Carolina. A November 1975 service treatment record evidences that the Veteran complained of back pain after "P.T. (run)" the day prior. The examiner noted pain on the right side above the iliac crest. The examiner's treatment plan included analgesic balm, hot showers, TP 3x3 days. See November 11, 1975, Service Treatment Record. Here, while the records do not discuss the Veteran's right hip, it does confirm the Veteran had a fall in-service. Furthermore, the AOJ favorably found the Veteran's November 1975 fall evidence that a qualifying event, injury, or disease had its onset during the Veteran's service. The Board is bound by the favorable finding.? 38?C.F.R. §?3.104(c).? For the following reasons, the Board finds that the Veteran's right hip?condition?is related to his in-service fall during physical training and that there is continuity of symptomatology since service attributable to his right hip condition. In reaching the foregoing finding, the Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see also Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In October 1979, the Veteran filed an application seeking service connection for a cracked right hip bone that he contended occurred in December 1975. The Veteran noted that he received treatment in November 1975/December 1975 at the Army Hospital in Fort Jackson, South Carolina. See October 1979 VA Form 21-526, Veterans Application for Compensation. In January 1987, the Veteran filed an application seeking service connection for a hip injury that he contended occurred in August 1975. He noted that he received treatment in August 1975 at the Base Hospital in Fort Jackson, South Carolina. See January 1987 VA Form 21-526, Veterans Application for Compensation. In July 1987, the Veteran reported to two private medical appointments. At the first appointment, the Veteran complained of right hip pain, and the examiner noted probable arthritis of the right hip. See July 2, 1987, Medical Treatment Record. At the second appointment, the Veteran reported that he had pain in his right hip as a child and that it was relieved by Motrin. It was noted that the Veteran's right hip was dislocated in a motor vehicle accident in 1985. The examiner noted degenerative changes of the right hip and referred the Veteran to an arthritis clinic. See July 21, 1987, Medical Treatment Record. In August 1987, the Veteran reported to a private medical appointment and complained of right hip pain. See August 22, 1987, Medical Treatment Record. In September 1987, the Veteran reported for three appointments and underwent x-rays of the right hip. At the first appointment, the Veteran complained of right hip pain and reported that the pain started in 1975 due to falling during a field maneuver while in the United States Army. He explained that he was seen in the medic, given x-rays, and discharged from the military shortly after. He further explained that the hip pain was intermittent since then and worsening with cold weather. The Veteran denied any other problems besides the hip pain occasionally leading to falls when the joint gave away. As a part of his past medical history, it was noted that he was seen at a VA Hospital in Fort Jackson, South Carolina in October 1975 for hip problems and that his right hip was within normal limits. In conclusion, the examiner noted that the Veteran had right hip pain for 12 years and prescribed Motrin 800mg. See September 2, 1987, Medical Treatment Record. At his second appointment, the Veteran stated that his right hip pain improved with the medication and requested a refill. He also had an x-ray of the right hip. The radiology report noted irregularity and cystic changes along the lateral aspect of the femoral head and neck, deformity of the femoral head with displacement of the epiphyseal region inferiorly, and no fracture or soft tissue abnormality. The impression was slipped capital femoral epiphysis without change since July 22, 1987. See September 15, 1987, Radiology Report. At his third appointment, the Veteran complained of chronic right hip pain. He explained that he fell prior to the appointment due to instability of the hip and bruised his knee. The examiner stated that a September 15, 1987, x-ray showed slipped capital femoral epiphysis and referred the Veteran to the orthopedic clinic for management. See September 25, 1987, Medical Treatment Record. In October 1987, the Veteran underwent an x-ray of the right hip, and it was noted that there were no changes from the previous film. See October 7, 1987, Radiology Report. In September 1995, the Veteran filed an application seeking service connection for a hip condition. He stated that the condition was a result of basic training and noted that he received treatment at a U.S. Army Hospital in Fort Jackson, South Carolina. See September 1995 VA Form 21-526, Veterans Application for Compensation. In May 1998, the Veteran underwent an orthopedic consultation after complaining of right hip pain. As a history, the examiner noted that the Veteran reported that he injured his right hip approximately 23 to 24 years ago while in the service, and since then, he has had persistent recurring problems with progression of pain involving his right hip. The examiner further noted that the Veteran reported that he has been seen on several occasions, evaluated, given propriety conservative medication, however, he has pain with weight bearing and walks with a limp. After examination of the Veteran and x-rays, the examiner found that there appeared to be a slipped epiphysis on the right side with shortening of the neck and rotation of the femoral head, narrowing of the joint space, and spur formation superior to the acetabulum and inferior neck and head. See May 28, 1998, Orthopedic Consultation of Right Hip. In November 1998, the Veteran reported to an appointment and complained of right hip issues. See November 4, 1998, Medical Treatment Note. In March 1999, the Veteran underwent a podiatric consultation after complaining of significant pain with ambulation and low back muscle spasm. The examiner noted that the Veteran had a long history of right hip injury with resultant secondary osteoarthritis and painful ambulation. The examiner further noted that the Veteran was seen by another doctor in 1998 where he was diagnosed with residual from slipped epiphysis, right hip with resultant arthritic changes, and limited motion and treated with Indocin 50mg. After examination of the Veteran, the examiner noted several issues including significant leaning discrepancy, antalgic gait, and resultant arthritic changes secondary to prior right hip injury and referred the Veteran to an orthotist for fabrication of orthopedic shoes. See March 12, 1999, Podiatric Consultation. In July 2004, the Veteran filed an application seeking service connection for a right hip condition and a mental condition. The Veteran explained that he aggravated his hip joint during training which led to irrational physical and mental function. See July 2004 VA Form 21-526, Veterans Application for Compensation. In December 2004, the Veteran reported that he was in an accident in the military in 1975 resulting in his right hip osteoarthritis. He appeared to have been given Motrin. See December 17, 2004, Physician Progress Notes. In August 2005, the Veteran submitted a lay statement in support of his service connection claim for a right hip condition. The Veteran explained he was imprisoned from 1979-1988, in 1989, and currently. He stated that during a running training exercise in Fort Jackson, South Carolina, he slipped off the side of a broken asphalt road and fell on his right side. See August 5, 2005, Lay Statement. In December 2005, the Veteran stated that he slipped and fell off a roadside curb during basic training and aggravated a hip injury. He explained that he had a hip injury when he was 12 that did not require surgery. He contended that the right hip pain he currently suffered was from the fall during active military service. See December 8, 2005, Notice of Disagreement. In April 2006, the Veteran underwent an x-ray of the right hip after complaining of right hip pain due to a right hip injury. The x-ray impression was mild degenerative changes in the right hip with deformity of the right femoral neck and head from prior injury. See April 2, 2006, Medical Imaging. In October 2007, the Veteran reported degenerative joint disease of the right hip. See October 11, 2007, Problem List. In March 2008, the Veteran submitted a statement in support of his claim. He stated that his claim revolved around an injury that occurred while participating in a platoon run during basic training where he slipped on a piece of asphalt and exacerbated his hip injury. See March 2008 VA Form 21-4138, Statement in Support of Claim. In December 2010, the Veteran underwent physical therapy services for his right hip. He also had an x-ray of his right hip, and the report noted chronic post-traumatic changes, right neck of femur stable since previous study, unchanged appearance of left femoral head/neck junction, no acute fracture, and stable mild spurring of the superolateral margin of the right acetabulum. See December 2, 2010, Medical Record and Imaging. In January 2011, the Veteran was noted to have a medical condition that impacted his ability to walk distances and stand any length of time. He had a single pointed cane to help with the disability. See January 31, 2011, Medical Report. In August 2011, the Veteran underwent a physical therapy evaluation. He complained of right hip pain, and the examiner noted degenerative joint disease of the right hip. See August 2, 2011, Medicine and Rehabilitation Services Records. In January 2012, the Veteran was discharged from physical therapy as his right hip increased in strength. However, the Veteran complained that the right hip throbbed in the cold weather. See January 19, 2012, Physical Therapy Note. In August 2013, the Veteran requested to see a doctor regarding hip pain that he related to an old injury from the military. See August 2, 2013, Request. In April 2014, the Veteran underwent imaging on his right hip. The clinical finding indication was chronic hip pain with slipped capital femoral epiphysis, R/O osteoarthritis. See April 22, 2014, Imaging Report. In December 2014, the Veteran's imaging report found mild degenerative arthritis present with persistent deforming of the right femoral head neck junction. It was questioned whether there was a prior hip fracture. His left hip joint had minimal arthritis. The right hip was stable. See December 11, 2014, Imaging Report. In February 2015, the Veteran submitted a statement in support of his claim explaining that he needed treatment for pain in his hip since the date he got out the military. See February 1, 2015, VA Form 21-4138, Statement in Support of Claim. In March 2015, the Veteran saw a primary care provider for a followup. The Veteran reported chronic pain issues and explained that he was going to the clinic for Cortisone shots related to hip pain from a fall he experienced in 1976. He reported that he actively participated in the Pain Management Group. See March 17, 2015, Medical Treatment Record. In June 2015, the Veteran complained of right hip pain. The Veteran's history included recurrent right hip pain, x-rays, right hip osteoarthritis diagnosis, lateral hip pain for years that gets better and worse, and previous cortisone injections. Upon examination of the right hip, the examiner noted lateral hip pain radiating to the groin on hip internal and external rotation, severe tenderness to palpation over the trochanteric bursa right hip, and intact neurovascular. The examiner noted the following diagnoses: right hip osteoarthritis, right hip pincer impingement, and trochanteric bursitis. As a treatment option, the Veteran was injected with 40mg of Kenalog, 2ml of lidocaine, and 2ml of Marcaine over the trochanteric bursa of the right hip. See June 12, 2015, Progress Note; see also June 12, 2015, Imaging. In September 2015, the Veteran complained of chronic hip pain to his primary care provider. See September 18, 2015, Primary Care Provider Progress Note. In March 2017, the Veteran submitted a statement explaining that he hurt his back when he was 12, not his hip. He further explained that during service he fell during physical training and landed on his right hip, that he took over the counter medication and turned to drinking and drugs when the medication did not work, that he experienced chronic pain since his in-service injury, and that he sought treatment for his hip pain after service but was told to deal with the pain so he continued to self-medicate with drugs and alcohol instead of seeking treatment. See March 17, 2017, VA Form 21-4138, Statement in Support of Claim. In February 2022, the Veteran's nephew submitted a lay statement. The nephew stated that he lived with the Veteran when he was growing up. He explained that he does not remember the Veteran going into the military because he was born in 1975, but he does remember that after service the Veteran seemed to be in pain when he walked and limped. See February 14, 2022, VA Form 21-4138, Statement in Support of Claim. In October 2023, the Veteran submitted a statement explaining that he was incarcerated from 1983 to 1987 and was not involved in a motor vehicle accident in 1985. He further explained that during his incarceration in 1985, he would not have been allowed in any motor vehicle. See October 11, 2023, VA Form 21-4138, Statement in Support of Claim. Here, the Veteran consistently reported having experienced right hip pain since service. He provided competent and credible evidence that he began to experience right hip pain after his fall during his military service, and that these symptoms have continued to the present with no intervening cause. Even though there is a medical report that the Veteran dislocated his right hip in a motor vehicle accident in 1985, the Veteran explained that he was incarcerated from 1983 to 1987 and not allowed to be in a motor vehicle during that time. The Board finds no reason to question the veracity of such statements, and they are entitled to significant probative weight. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence). The Board acknowledges the August 2015, December 2015, October 2017, June 2018, April 2019, and June 2019 VA opinions against the claim. As the opinions have been found inadequate by either the Board or CAVC, the Board declines to address them further. Furthermore, the Board acknowledges the November 2022 VA medical opinion against the claim, which was obtained pursuant to the Board's most recent remand. However, as the examiner did not consider all the relevant facts, the Board affords the November 2022 VA opinion little probative weight. See Nieves-Rodriguez v. Peake,?22?Vet. App.?295?(2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Specifically, the November 2022 VA examiner relied on a statement in a medical record that the Veteran was in a motor vehicle accident in 1985 without acknowledging that the Veteran stated he was incarcerated in 1985 and not in a motor vehicle during at that time. Further, the examiner appeared to conclude that the Veteran's first report of right hip pain was related to a 1985 motor vehicle accident. However, in 1979, the Veteran reported that his right hip pain was related to a fall in 1975 during active military service. If the examiner acknowledged the foregoing facts and rejected them, the examiner should have detailed that in the rationale of the medical opinion. The Board acknowledges that the evidence is not totally irrefutable that the Veteran's right hip condition was caused by his in-service fall and that a more conclusive determination would require another VA medical opinion. However, given that the evidence contains a sufficient basis on which to grant service connection, the Board finds that a remand could be construed as remanding in order to obtain negative evidence, in violation of 38 C.F.R. § 3.304 (c). See 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination."). Resolving all doubt in favor of the Veteran, the Board finds that his right hip condition is considered a chronic disease pursuant to 38 C.F.R. § 3.309, that he experienced continuity of symptomatology since service related to his right hip condition, and that there were no intervening causes. Accordingly, based on the facts of this case, entitlement to service connection for a right hip condition is warranted. See 38?U.S.C. §§ 5107;?38?C.F.R. §§?3.102, 3.303, 3.307, 3.309.? Acquired Psychiatric Condition The Veteran seeks service connection for an acquired psychiatric disorder as secondary to his right hip condition. See July 2024 VA Form 10182 Attachment. The Board notes that service connection may be established on a direct or a secondary basis.? However, as the Veteran seeks service connection on a secondary basis, and the Board is granting the claim on that basis, the Board will limit its discussion accordingly and not address?service connection on a direct basis.?? Applicable Law 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?C.F.R. §?3.310(a).? A disability that is proximately due to, the result of, or chronically aggravated by a service-connected disease or injury is considered service-connected, and when thus established, this secondary condition is considered a part of the original condition.? 38?C.F.R. §?3.310(a) and (b).? Establishing service connection on this secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.? Allen v. Brown, 7?Vet. App.?439 (1995) (en?banc). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.? See 38?U.S.C. §?5107;?38?C.F.R. §?3.102; see also Lynch v. McDonough, 21 F.4th 776 (2021). Analysis As to a current disability, there is no dispute that the Veteran has been diagnosed with depressive disorder. See July 2015 Mental Disorders VA Exam. As to a separate disability already subject to service connection, the Veteran is now in receipt of service connection for a right hip condition. Therefore, the remaining question is whether the Veteran's depressive disorder is due to or aggravated by his service-connected right hip condition.? See Allen, 7?Vet. App.?at 439.?? As to nexus, there is a July 2015 VA medical opinion of record that the Veteran's claimed condition is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. See July 2015 VA Medical Opinion. The examiner did not include a rationale for the opinion; therefore, the AOJ requested an addendum opinion. The same examiner that rendered the July 2015 VA medical opinion rendered an August 2015 Addendum VA Medical Opinion. The examiner stated that the Veteran suffered an injury in service while in the military and could not perform many of his required tasks, that the Veteran sought treatment for his physical injuries, and that it is more likely than not that he suffered a depressive disorder as a result of his injury. The examiner further stated that the Veteran self-medicated with alcohol, socially isolated, and had anger issues throughout the years post military. The examiner concluded by stating that if the Veteran's hip injury is deemed service connected, then his psychiatric condition, which is a result of his constant pain from that injury, seems to be linked to military service as well. See August 2015 Addendum VA Medical Opinion. Here, the Board finds the rationale rendered by the examiner is logical, well-reasoned, thorough, and relied upon consideration of the entire record. The Board affords the medical opinion?great probative weight.? See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 301 (2008) (explaining that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two). There are no conflicting medical opinions. ?? Resolving all doubt in favor of the Veteran, the Board finds all three elements for service connection on a secondary basis, current disability, separate disability already subject to service connection, and medical nexus evidencing that the depressive disorder is due to the service-connected right hip condition, have been met. Accordingly, based on the facts of this case, entitlement to service connection for depressive disorder, as secondary to service-connected right hip condition, is granted.? See 38?U.S.C. §?5107;?38?C.F.R. §?3.102; Lynch,?21 F.4th at 776. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ti'a L. Smith, Associate 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.