Citation Nr: 1749131	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  08-00 408	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a right hip disability.  

2.  Entitlement to service connection for a left hip disability.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and her daughter


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran was a long-time member of the United States Army Reserves, with a period of initial active duty training in July 1980, and a period of active duty from November 2002 to April 2003.  She additionally had multiple periods of active and inactive duty for training (ACDUTRA and INACDUTRA) through the completion of her Reserve obligation in April 2008; these periods are identified in the service personnel records associated with the claims file.  

This case was initially before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The Veteran has since relocated to the jurisdiction of the Atlanta, Georgia RO.  

In December 2013, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC.  A transcript of her testimony is associated with the claims file.  

In March 2014, October 2014, January 2016, and April 2017, the Board remanded the case to the RO, via the Appeals Management Center (AMC) for further development and adjudicative action.

This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran has right and left hip pain, without x-ray evidence of arthritis, that is more likely than not a manifestation of her fibromyalgia, which was not shown or diagnosed during a period of active duty or ACDUTRA.  
CONCLUSIONS OF LAW

1.  The criteria for service connection for a right hip disability have not been met or approximated.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016).

2.  The criteria for service connection for a left hip disability have not been met or approximated.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). 

VA's duty to notify was satisfied by a November 2008 letter to the Veteran.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  The Veteran's service treatment records (STRs), personnel records, and VA treatment records have been associated with the record.  The Veteran has provided testimony at a hearing.  The Veteran's claim was remanded by the Board, most recently, in April 2017 to obtain an adequate medical opinion.  There has been substantial compliance with the Board's remand directives.

In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

II.  Service Connection - Hips

The Veteran maintains that she has arthritis in both hips, that was incurred during a period of ACDUTRA; or, in the alternative, that her hip disability was caused by or aggravated by her service-connected lumbar spine disability.  In a September 2017 statement, the Veteran asserts that her medical records show diagnoses of hip pain, enthesopathy of the hip region, and degenerative arthritis of the hips.  She has also indicated that her hip pain began after her back surgery.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability.  See38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2016).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted for any disease 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).

Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  See Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

Active military, naval, or air service includes active duty, any period of active duty for training (ADT or ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (IDT or INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a).  

The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided 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.  

It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another.  See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  This responsibility is particularly important where medical opinions diverge.  The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another.  See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.

According to VA examination reports from April 2015, March 2016 and July 2017, degenerative arthritis of the bilateral hips is not shown on x-ray.  

A February 2006 Report of Medical History notes multiple medical problems including back surgery, a bulging disc in the cervical spine, and osteoarthritis - generalized every joint; and, indicates that the Veteran is "currently diagnosed with degenerative arthritis of the hips, vertebrae, shoulders, knees...."  However, there is no accompanying x-ray evidence to support those statements.  

Rather, October 2005 x-rays of the hip revealed mild bilateral hip bursitis, and the March 2016 VA examiner diagnosed bilateral trochanteris pain syndrome, including trochanteric bursitis.  The March 2016 examination report notes the onset in 2005, and notes the Veteran's reported history of the onset of hip pain during a period of ACDUTRA; however, the July 2017 examiner noted that the bursitis condition subsequently resolved, and is a separate condition not caused by or aggravated by her service-connected lumbar spine condition.  

In this regard, the July 2017 examiner noted that the Veteran's hip pain is a symptom of her fibromyalgia, which began in 2005, and not during a period of ACDUTRA, irrespective of the fact that the fibromyalgia was not diagnosed until 2009.  

The April 2015 VA examiner, by contrast, indicated that the Veteran's hip condition, along with her back, neck and shoulder pain, existed prior to entry into active duty in 2002.  That same examiner also opined that the Veteran's fibromyalgia, subsequently diagnosed in 2009, could explain many of these conditions.  

In either case, the Veteran's hip pain has been attributed to fibromyalgia, which was not diagnosed during a period of active duty or ACDUTRA.  In other words, regardless of the exact onset of the Veteran's hip pain, it is not shown to be due to disease or injury incurred during service.  

The Veteran is competent to report the onset of hip pain; however, the question of etiology in this case is a complex medical question not capable of lay observation.  Here, the medical evidence of record attributes the Veteran's bilateral hip pain to a diagnosis of fibromyalgia, and not to any injury, disease, or other event during active duty or during a period of ACDUTRA, including on a secondary basis.  

Significantly, the Board's April 2017 remand specifically identified the pertinent facts, specifically requested that the examiner address the Veteran's contentions; and, requested a medical opinion based on the totality of the evidence.  The July 2017 examiner provided opinions based on the entire record, and those opinions, as to likely etiology, are essentially consistent with the findings of the previous examiners.  With respect to etiology, the Board finds the VA examiners' findings more probative than the Veteran's lay statements, which are not supported by the medical record.

For these reasons, the preponderance of the evidence is against the claim and service connection a right hip disability and a left hip disability is not warranted.  As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application.  38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3.  


ORDER

Service connection for a right hip disability is denied.  

Service connection for a left hip disability is denied.  



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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