Citation Nr: A25035806 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240815-463396 DATE: April 18, 2025 ORDER Entitlement to service connection for left hip status post total hip arthroplasty (left hip disability) on a direct basis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's left hip disability had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left hip disability on a direct basis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to October 2003. This case comes before the Board of Veterans' Appeals (Board) from a September 2023 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Prior to the decision on appeal, the RO denied service connection for the Veteran's left hip disability in a June 2022 rating decision, which was subject to higher-level review pursuant to the Veteran's May 2023 VA Form 20-0996, Request for Higher-Level Review. In the September 2023 rating decision on appeal, the RO confirmed the previous denial. In the August 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 2022 agency of original jurisdiction (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 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. Entitlement to service connection for left hip disability. The Veteran has raised the theory of entitlement based on secondary causation due to service-connected right hip degenerative joint disease with total hip replacement. Given that the instant favorable decision grants service connection on a direct basis for left hip disability, as explained below, a discussion of any other theory of entitlement is not necessary, as such would not result in an earlier effective date. Johnson v. Collins, __ Vet. App. __, No. 23-7589, 2025 U.S. App. Vet. Claims LEXIS 383 (Mar. 26, 2025) (the Board cannot dismiss an appeal from the denial of service connection for a disability for which service connection has already been granted without considering the effective date consequences of the grant of service connection on another basis); Cf. Stender v. Wilkie, No. 19-0068, 2020 U.S. App. Vet. Claims LEXIS 520, *5-*7 (Mar. 27, 2020) (mem dec) (Falvey, J.) (the Board erred in granting service connection based on the Camp Lejeune Contaminated Water (CLCW) presumption without considering other theories of entitlement that could warrant an earlier effective date because of the effective date of the CLCW presumption); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the following reasons, entitlement to service connection for the Veteran's left hip disability is warranted. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In its September 2023 rating decision, the AOJ favorably found that the Veteran was diagnosed with a disability, as the medical evidence from a private provider shows that she received a left total hip replacement in August 2018. The Board is bound by this favorable finding, 38 C.F.R. § 3.104(c), and the current disability requirement has thus been met. A January 1986 service treatment record (STR) contains an x-ray of the Veteran's hips, which showed severe degenerative changes of the right hip. While degenerative changes were not shown in the Veteran's left hip, the Veteran was nevertheless referred to the total joint replacement clinic in May 1986 for issues related to her right leg being one centimeter shorter than the left leg and her altered gait. In July 1995, STRs show that the Veteran was referred to physical therapy for issues that included "marked pelvic and lumbar spine movement in gait to compensate for capsular pattern of tightness in right hip," with the goal of being able to allow "static and dynamic weight bearing with optimal symmetry" in the hips. Following physical therapy, the Veteran's altered gait remained; the October 1996 orthopedic surgery consultation report identified an abnormal gait with a shortened right leg. The Veteran received a right hip prosthesis in July 2001. The record does not contain a separation medical examination. However, as the Veteran attended physical therapy to account for her altered gait and inability to bear weight symmetrically in her hips, the in-service injury element has been met. The remaining issue is thus whether there is a relationship between the current left hip disability and service. As shown in the private orthopedic treatment records VA received, in December 2009, the Veteran reported left hip pain that increased when weight bearing. Private orthopedic treatment records from July 2014 show that the Veteran reported mild discomfort and pain in the groin area, and experienced mild restricted rotation in the left hip; x-rays at that time showed moderate cartilage loss in the left hip. In January 2017, the Veteran presented with progressively symptomatic degenerative arthritis in her left hip based on reports of intermittent and aching pain, increased difficulty with daily activities, walking with a limp, and marked restriction in the range of motion in her left hip. By July 2018, the Veteran was experiencing excruciating pain in her left hip and requested a left hip replacement. In August 2018, private records associated with the Veteran's left hip total joint arthroplasty note the Veteran's history of degenerative arthritis of the left hip that has been unresponsive to conservative measures, and that functional activities have become difficult and painful. The surgical report stated that there were severe degenerative changes of the femoral head and acetabulum as expected, with extensive full thickness articular cartilage loss. In September 2018, the Veteran continued to report issues related to her altered gait and walking with a limp. In the above medical records, the Veteran has competently conveyed progressively worsening left hip pain since service and has been treated for these issues, including those related to altered gait and pain when weight bearing. Specifically, during service, the Veteran received physical therapy for her altered gait with the goal of being able to symmetrically bear weight in her hips when moving and standing. Within several years of separation, the Veteran reported left hip pain when weight bearing, similar to the concerns reflected in the in-service 1995 physical therapy report. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding observations). Generally, statements made for the purpose of medical diagnosis or treatment, such as the Veteran's 2009 statements to the orthopedist, are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")); White v. Illinois, 502 U.S. 346, 356 (1992) ("[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility...."). To that end, the Veteran reported that the observable pain in her left hip continued to progress; by 2014, she was diagnosed with moderate cartilage loss of the left hip and in 2017, the Veteran presented with progressively symptomatic degenerative arthritis with marked restriction in the range of motion in her left hip. The discernable limitation in her left hip associated with an altered gait continued after her August 2018 left hip replacement, with the Veteran again competently reporting her altered gait in September 2018. Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's longstanding accounts of ongoing discernable symptoms as to her altered gait and left hip pain and limitations are plausible, internally consistent, and consistent with the places, types, and circumstances of service, and there is nothing of equal or greater probative weight in the evidence of record to contradict this account of her discernable and ongoing symptoms culminating her diagnosed left total hip replacement in August 2018. Thus, continuous symptoms since service have been shown, thereby satisfying the third element of service connection on a direct basis. While the Board could remand the claim for a VA medical examination and opinion as to the etiology of the Veteran's left hip disability, such a request as to this disability could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is unallowable. 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"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's left hip disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left hip disability on a direct basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. T. Mowell, 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.