Citation Nr: 1749129	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  06-34 081	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for degenerative joint disease, left hip (left hip disability), as secondary to the service-connected Osgood-Schlatter's disease and instability, left knee (left knee disability).

2.  Entitlement to service connection for degenerative joint disease, right hip (right hip disability), as secondary to the service-connected Osgood-Schlatter's disease and instability, right knee (right knee disability).



REPRESENTATION

Appellant represented by:	Richard A. Rhea, Attorney at Law




WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Roya Bahrami, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to August 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Columbia, South Carolina and Montgomery, Alabama.

In February 2011, the Veteran testified before the undersigned at a Travel Board hearing; a transcript of that hearing is of record.

In August 2015, the Veteran again testified at a Travel Board hearing regarding the issues of entitlement to service connection for left and right hip disabilities.  However, VA was unable to produce a written transcript of the proceeding due to numerous inaudible information in the audio recording of the hearing.  The Veteran was informed of this fact in letters dated October 2015 and January 2016, and notified that he had the opportunity to testify at another hearing. He was told to respond to this notice within 30 days if he desired another hearing. Otherwise, the Board would assume that the Veteran did not desire another hearing and it would proceed with his claims. To date, the Board has received no notification from the Veteran requesting a new hearing, and as such, it is assumed that he does not desire a new hearing.

In May 2017, the Board granted TDIU and remanded the remaining claims on appeal for further evidentiary development. The AOJ continued the previous denial in an August 2017 supplemental statement of the case (SSOC). 


FINDINGS OF FACT

1.  The preponderance of the evidence does not show that the Veteran's left hip disability is caused or aggravated by his service-connected left knee disability.

2.  The preponderance of the evidence does not show that the Veteran's right hip disability is caused or aggravated by his service-connected right knee disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a left hip disability as secondary to service-connected left knee disability have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017).

2.  The criteria for service connection for a right hip disability as secondary to service-connected right knee disability have not been met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Board finds that VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103, 5103A (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2016). Moreover, since the May 2017 Board Remand, neither the Veteran nor his attorney has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Secondary Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted where a disability is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a 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, 48 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310  was revised to incorporate the analysis by the Court in Allen. The revised 38 C.F.R. § 3.310 provides, in essence, that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred.

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382   (1998).

The Veteran asserts that his right and left hip disabilities are secondary to his service-connected knee disabilities. He does not assert that his hip disabilities are related to service. See, e.g., June 2014 statement in support of claim.  As this theory of entitlement is not by the Veteran or raised the evidence of record, the Board will not address it.  Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory").

The Veteran is service-connected for Osgood-Schlatter's disease and instability of the left and right knees and has been diagnosed with degenerative joint disease of both hips. See, e.g., May 2014 VA examination report.  He has thus met the current disability requirement and the dispositive issue in this case is whether there is a relationship between either disability and the service connected knee disorders.  The Veteran was afforded two VA examinations, resulting in two medical opinions, regarding this issue.

The first VA hip and thigh examination occurred in May 2014. The examiner opined that the currently diagnosed bilateral hip disorders were not caused by or the result of service-connected Osgood-Schlatter's disease of both knees. The examiner reasoned that "there is no known connection between hip degenerative joint disease and Osgood Schlatter disease as causative. The knee disorder is self-limited and will not cause chronic ongoing knee problems and cannot therefore be the cause of any hip disorder."

In May 2017, the Board found that another opinion was necessary to address whether the Veteran's bilateral hip disabilities were aggravated by Osgood-Schlatter's disease of both knees. The Board also noted that the Veteran had recently been awarded service connection for instability of the knees, and thus the opinion should also address whether the Veteran's bilateral hip disabilities were caused or aggravated by instability of the knees.

Consequently, a second VA hip and thigh examination took place in July 2017. The Veteran reported that he began to experience symptoms of the bilateral hips in the 1970s, and was diagnosed with degenerative joint disease of the left hip in the 1990s. Imaging done in 2000 indicated degenerative changes. The examining physician noted review of the claims file, including VA and private treatment records, as well as the May 2017 Remand. The examiner opined that, based on a review of the records and discussion with the Veteran, the bilateral knee condition did not cause degenerative joint disease of the hips, and the hip disabilities were less likely than not aggravated beyond their natural progression by Osgood-Schlatter's disease and instability. The examiner further reasoned that degenerative joint disease is a multifactorial disease process, however it is not caused by Osgood-Schlatter's disease, which is specifically related to the knee. There is no specific relationship or pathophysiology between the knee disabilities and the hip disabilities.

The Board finds that the July 2017 VA medical opinion to be probative as to whether the Veteran's diagnosed bilateral hip disabilities are related to his service-connected knee disabilities. The examining physician reviewed and discussed the medical evidence of record and the Veteran's pertinent history and explained the reasons for the conclusion based on an accurate characterization of the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

The remaining medical evidence, to include post-service VA and private treatment records, show complaints and treatment for a bilateral hip disability, but does not address whether there is a link between the bilateral hip disability and a service-connected knee disability.

The Board has also considered the Veteran's statements regarding his belief that he has a bilateral hip disorder that is related to his service-connected disabilities. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to provide a medical opinion between his currently diagnosed bilateral hip degenerative joint disease and his Osgood-Schlatter's disease and instability of the bilateral knees. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Additionally, arthritis is a medically complex process because of its multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462   (2007). The etiology of the Veteran's hip disabilities is also a complex medical matter question because it involves internal and unseen system processes unobservable by the Veteran.  Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  The Veteran's statements in this regard are therefore not competent.

For the foregoing reasons, the Board finds that the weight of the evidence is against a finding of relationship between the Veteran's bilateral hip disabilities and his service-connected knee disorders.  Entitlement to service connection for these disabilities is therefore not warranted.  As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.




ORDER

Entitlement to service connection for degenerative joint disease, left hip, as secondary to the service-connected Osgood-Schlatter's disease and instability, left knee, is denied.

Entitlement to service connection for degenerative joint disease, right hip, as secondary to the service-connected Osgood-Schlatter's disease and instability, right knee, is denied.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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