Citation Nr: 0737157 Decision Date: 11/27/07 Archive Date: 12/06/07 DOCKET NO. 03-33 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for degenerative joint disease of the right hip. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from July 1971 through July 1974, and from September 1981 through December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By an August 2000 rating action, the RO originally denied service connection for degenerative joint disease of the right hip as not well grounded. The veteran did not appeal that denial. The RO then correctly readjudicated the veteran's claim on a de novo basis in the July 2002 rating decision now under appeal. When a claim has been denied as not well grounded and that denial became final between July 14, 1999, and November 9, 2000, VA may Readjudicate that claim as if the denial had not been made. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 7, subpart (b), 114 Stat. 2096, 2099 (2000). Following the October 2004 Travel Board hearing before the undersigned, this matter was remanded in February 2005 for additional development. This case has now been satisfactorily developed and is again before the Board for appellate review. FINDINGS OF FACT The evidence of record shows that the veteran incurred a hip injury during his service as a parachutist, and that the injury resulted in his currently diagnosed degenerative joint disease of the right hip. CONCLUSION OF LAW Degenerative joint disease of the right hip was incurred in the veteran's active duty service. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking service connection for degenerative joint disease of the right hip, which he contends manifested as a consequence of his status as a paratrooper in active service and a particularly hard landing while conducting a parachute jump in 1984. To establish service connection, the record must show (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Nonetheless, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). The medical evidence in this case clearly establishes a current disability. In particular, in May 1998 the veteran was seen in a VA urgent care clinic for right hip pain. In March 1999, the same month in which the veteran filed his claim, he was diagnosed by a primary care physician with degenerative joint disease of the right hip. A June 1999 x- ray confirmed the diagnosis as severe osteoarthritis of the right hip. While treatment records are somewhat sparse, there is no doubt that the veteran has a current right hip disability. Most recently, an October 2004 statement from a nurse practitioner at the Atlanta VA Medical Center confirms the diagnosis as "advanced avascular necrosis of the right hip." There is a current right hip disability in this case. The question is whether it is related to service. The first place to look for evidence of an in-service incurrence of a disability is naturally the veteran's service medical records (SMRs). Unfortunately, in this case, the veteran's SMRs are unavailable. In May 2002, a statement was submitted into the record indicating that the National Personnel Records Center (NPRC) conducted an extensive and thorough search of the records among its holdings, and was unable to locate the veteran's SMRs. The NPRC "concluded that the records either do not exist, that NPRC does not have them or that further efforts to locate them at NPRC would be futile." Because the veteran's service medical records are unavailable, VA has a heightened duty to consider the applicability of the benefit of the doubt, to assist the veteran in developing the claim, and to evaluate and discuss the evidence favorable to the veteran. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The veteran contends that he initially hurt his hip in 1984 in Fort Bragg during a qualifying parachute jump. See hearing transcript at page 3. The next day he noticed a large bruise from the front to the back of his hip. Id. at page 4. He had trouble walking immediately thereafter and was reportedly put on light duty. Id. at page 5. However, he has clearly stated that he did not seek medical treatment during service for this injury. Id. As such, it appears that the loss of service medical records in this case is harmless. The veteran himself has stated that there would be no relevant evidence in those records. The question still remains, however, whether there is medical evidence in the claims folder sufficient to establish the medical nexus needed for service connection under 38 C.F.R. § 3.303. The veteran's opinion alone is not enough. The veteran is not a medical professional and, therefore, his statements are not competent evidence of a medical nexus between his current right hip disability and service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 495 (1992). Competent medical evidence of a causal connection is required for service connection. The first medical evidence of a possible past hip fracture came in the September and November 2002 VA records. A September 2002 report shows the veteran's description of a 1984 parachute jump in service that is consistent with his hearing testimony. Post-traumatic degenerative joint disease of the right hip was diagnosed and it was suggested that "in review of the history, and the current findings on x-ray, it is reasonable to assume that this vet had a fracture at the time of the incident that has healed, but now with DJD." A November 2002 review of radiology readings showed that "there is the suggestion of an old impacted subcapital fracture." The report also indicated that while a CT scan showed no overt evidence of a prior fracture, the right hip was "quite asymmetric from the other hip." Based upon the veteran's reported history, the November 2002 report shows a diagnosis of right hip subcapital fracture, old, and posttraumatic degenerative joint disease of the right hip. An August 2003 VA outpatient treatment note also indicates that "it is certainly plausible that this patient's disease process is traumatic in origin and military service related." These opinions were made based upon the veteran's reported history as a parachutist in service. The Board notes that the veteran has accurately reported his status, as his service personnel records are available and have been reviewed. A September 1981 document confirms his assignment to the 82nd Airborne, and the DD Form 214 for this second period of service shows that he is a recipient of the parachutist's badge. Although the service medical records are not available, and would not show evidence of treatment for a hip injury in service even if they were, the Board finds that his lay testimony is credible. He accurately reported his airborne status prior to VA obtaining the personnel records with confirmation of that fact. In addition, he has consistently reported a hard landing in 1984 throughout the course of this appeal, both to the undersigned in the October 2004 hearing, and to the medical doctors of record. The doctors have issued favorable nexus opinions based upon this credible lay testimony. There is, in fact, no evidence contradicting the veteran's testimony, only evidence supporting the notion that his current hip disability is causally connected to his airborne activity in service. Based on the veteran's credible lay evidence, coupled with competent medical opinions supporting his claim, the Board will resolve all doubt in the veteran's favor regarding his degenerative joint disease of the right hip. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Washington v. Nicholson, 19 Vet. App. 362, 366-67 (2005). In light of the lay and medical evidence discussed above, the Board finds that the veteran's degenerative joint disease of the right hip was incurred during his second period of active service, and he is, therefore, entitled to service connection. A discussion addressing whether VA's duties to notify and assist the veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the veteran in the development of his claim. See 38 U.S.C.A §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). In addition, the RO can provide the veteran with the appropriate information concerning the rating to be assigned and the effective date when it effectuates this decision. ORDER Entitlement to service connection for degenerative joint disease of the right hip is granted. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs