BVA9508267 DOCKET NO. 91-43 419 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Service connection for a right hip disability of undetermined etiology. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from December 1974 to June 1978. This case was previously before the Seattle, Washington, Department of Veterans Affairs (VA), Regional Office (RO) in January 1979. At that time, it was found that no right hip disability had been diagnosed in service. This appeal arises from a September 1989 rating decision of the Seattle, Washington, VA, RO, which found that the veteran had not submitted new and material evidence to reopen his claim for service connection for a right hip disability. This decision was confirmed and continued by a rating action issued in September 1990. The veteran testified at a personal hearing in January 1991; the hearing officer issued a decision in May 1991. This case was remanded in May 1992 for further development, following which the denial was continued in February 1993. In April 1994, the Board of Veterans Appeals (Board) denied the veteran's claim. In May 1994, the appellant's accredited representative submitted a motion for reconsideration of the April 1994 decision of the Board. The motion for reconsideration was granted by order of the Chairman of the Board on July 1, 1994, pursuant to his authority under 38 U.S.C.A. § 7103 (West 1991). Following this order, an Independent Medical Expert's opinion was requested in November 1994. This opinion was provided in January 1995. This decision by the Reconsideration Section replaces the decision of April 1994 and is the final decision of the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that service connection should be granted for his right hip disability. He asserts that he first began to suffer from this in service; therefore, service connection would be justified. DECISION OF THE BOARD The expanded section of the Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the expanded section of the Board that the evidence supports a finding that the veteran has submitted new and material evidence to reopen his claim for service connection for a right hip disability; it also supports a finding of entitlement to service connection for a right hip disability. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a right hip disability in January 1979. 2. Evidence submitted since that time reveals that the veteran suffers from a right hip disability that existed prior to his service and which increased in severity during his period of service. CONCLUSIONS OF LAW 1. Evidence received since the RO denied entitlement to service connection for a right hip disability in January 1979 is new and material, and the 1979 decision is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a)(1994). 2. The right hip disability clearly and unmistakably existed prior to service, and the presumption of soundness at entrance into service is rebutted. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107(a) (West 1991). 3. The veteran's preexisting right hip disability was aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107(a) (West 1991); 38 C.F.R. § 3.306(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). A veteran who had wartime service or peacetime service, after December 31, 1946, is presumed to be in sound condition except for those defects noted when examined and accepted for service. Clear and unmistakable evidence that a disability which was manifested in service existed before service will rebut this presumption. 38 U.S.C.A. § 1111 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.306(a) (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). The specific finding requiring that an increase in disability during peacetime service is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(c) (1994). The applicable criteria state that a notice of disagreement shall be filed within one year from the date of mailing of the notification of the initial review and determination; otherwise, that determination will become final and is not subject to revision on the same factual basis. The date of the notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1994). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). After carefully reviewing the record, the undersigned have concluded that the evidence submitted since the January 1979 decision by the RO is new and material. That is, it is evidence which has not previously been considered and which is relevant and probative of the issues being considered. Colvin v. Derwinski, 1 Vet.App. 171 (1991). It is apparent that this evidence, including the opinion of the Independent Medical Expert, when viewed in the context of all the evidence of record, might change the outcome of the decision. Given this determination, the claim is reopened and the entire evidence of record will be considered in determining whether entitlement to service connection is warranted. Such a review of the merits of the claim by the expanded section of the Board will not result in prejudice to the appellant given the fact that his request for service connection is being granted. Bernard v. Brown, 4 Vet.App. 384 (1993). The veteran's service medical records reveal that the August 1974 entrance examination was negative. By December 16, 1974, he was complaining that his right hip gave out on him whenever he put any weight on it. He denied any previous injury, but noted that this problem had occurred periodically since the previous year. A palpable pop was heard along the greater trochanter on extension and flexion. The assessment was pop secondary to ilio- trochanteral slide. In March 1977, he continued to complain of right hip pain for the past two years. His separation examination of May 1978 reflected slight crepitus with flexion of the right hip. There was full range of motion and no tenderness. Following his discharge from service, a VA examination was performed in October 1978. An x-ray revealed no abnormalities. He had discomfort in the right hip with internal and external rotation. The impression was discomfort in the right hip. Private records from June 1983 revealed the veteran's complaints of some pain and snapping of the right hip. X-rays were interpreted as showing early evidence of ischemic necrosis of the femoral head. The objective examination revealed painful rotation of the hip and crepitation of the greater trochanter. A follow-up examination later that month concluded that the diagnosis of aseptic necrosis was probably correct. This diagnosis was maintained after a private examination was performed in October 1985. This examination revealed that the x- rays were unchanged from 1983. The objective examination was negative, and the hips displayed good range of motion. There was no adduction or flexion contracture. In February 1990, the veteran's private physician opined that the veteran had degenerative joint disease (DJD) in both hips. A diagnosis of ankylosing spondylitis was felt to be consistent with the findings of hip degeneration and his elevated sedimentation rate. An x-ray found DJD in both hips. A private record from March 1990 included an x-ray report which showed mild degenerative changes with sclerosis and osteophytic formation of the right femoral head. This was felt to have existed for many years. In January 1991, the veteran testified at a personal hearing. He stated that he suddenly suffered from hip pain in service upon arising one morning. He was reportedly told that he had torn a cartilage. Since then, he said that he has continually suffered from right hip pain and popping. In March 1991, a VA examination was conducted, during which the veteran complained of pain in both hips. An x-ray revealed minor DJD in both hips. The diagnosis was DJD in both hips. In November 1992, he was again examined by VA. This examination noted pain and some limitation of motion in the right hip. The objective examination found that the veteran displayed 110 degrees of bilateral flexion, 40 degrees of abduction and 10 degrees of internal rotation, all of which were painful. External rotation was to 30 degrees. There was also pain with Patrick's test. It was noted that avascular necrosis cannot be apparent on x-ray for many years. Therefore, x-rays can be negative for some time. It was then opined that the answer to the veteran's hip pain could very well be avascular necrosis, particularly since DJD in someone 20-25 years of age is highly unusual. If the x-rays revealed avascular necrosis, then it could have begun in service. The diagnosis was probable avascular necrosis. In January 1993, the March 1991 x-ray was subjected to additional review. It was noted that this showed moderate changes with spurring consistent with ankylosing spondylitis. There was no obvious evidence of avascular necrosis to substantiate the 1974 diagnosis. In November 1994, this case was referred to an Independent Medical Expert for an opinion. The following three questions were asked: 1. Does the information contained in the military service records suggest that the veteran suffered from a hip disorder that would have manifested itself prior to his entrance onto active duty? 2. If the veteran did suffer from a hip disorder that began before he entered active duty, do the symptoms identified in service represent an increase in severity of that disorder? 3. If the veteran's right hip disorder did not have its onset before his entrance into service, do the symptoms that manifested in service represent the onset of degenerative joint disease? In January 1995, the opinion from the expert was rendered. This opinion included responses to the specific questions asked above: 1. On his examination at NRMC, Branch Dispensary MCAS, El Toro on December 16, 1974 under the subjective statement it is recorded: 'his hip gives out while running and with weight bearing. This has occurred periodically since last year. No prior injury'. I believe this note documents that since he joined the service in 8/74, that he had symptoms prior to that time since this statement reflects that symptoms would have had to occur since 1973 by this notation in the service medical record. 2. The appellant was treated for pain in the hip and by the time of discharge it was noted that he had crepitus on his discharge examination in 1978. The fact that he had never seen a physician for it previously, but did require treatment during service and had a hip abnormality noted at the time of discharge, establishes that in fact, his hip disorder did increase in severity during his period of active duty, although his discharge exam also noted that there was no hip tenderness and that he had full range of motion. Thus, his symptoms of a worsening disorder were quite mild during his time in service. 3. The intermittent pain and popping I believe was established by record as having began prior to his entrance into service based on his initial history on 12/16/74. At that time his ability to give an accurate history was optimal as the time span up to that point was the least (only one or two years). When in 1977 he stated he had it for a 'couple of years,' by then it was several years into the problem and it is difficult for patients to remain as accurate as more and more time elapses. Following these responses, the opinion went on to discuss the difficulty evidenced in the record in establishing a clear diagnosis. It was noted that both ankylosing spondylitis and avascular necrosis have been diagnosed. After a comprehensive review of the evidence of record, the opinion stated that it was more likely that the veteran suffered from ankylosing spondylitis. It was then stated: In summary, I believe that it might be useful to obtain a MRI scan to see if the patient has avascular necrosis and if he does, then the AVN is probably service related and the ankylosing spondylitis is not, since A.S. usually starts with more stiffness and aching, symptoms which were more apparent later. However, usually when a doctor diagnoses two conditions in the same hip in a young man, he is wrong about at least one of them. I suspect that he only has ankylosing spondylitis. Generally, ankylosing spondylitis involvement of the hip usually is more of an synovitis type pain with stiffness in the morning and the type symptoms that he complained of on 10/22/78. Although it would be atypical to start with popping and snapping, this may have been more of the doctors interpretation (or misinterpretation) of the patients symptoms. By 10/22/78, he clearly is complaining of synovitis type symptoms. The record states: 'still receive pain when I apply weight to right leg and is stiff after long drive or when waking up.' This is very characteristic of the type pain one gets with ankylosing spondylitis which can in many instances present with significant hip complains and which can be asymmetric, especially early on. This symptoms complex is much more suggestive of the presence of ankylosing spondylitis at that time than is the popping and giving away which is more suggestive of an intraarticular cartilage abnormality which, although it could result from ankylosing spondylitis, is more likely to result from avascular necrosis. If he has only ankylosing spondylitis, then I suspect he had minimal onset just prior to enlistment with worsening while in the service. The fact that the appellant entered the service with a totally normal hip exam and left with crepitus which had become restricted range of motion within six months of his discharge is highly suggestive that the severity of his underlying hip disorder did increase during his time in the service, and that it probably is due entirely to ankylosing spondylitis which is difficult to diagnose in the early stages. After a careful review of all of the evidence of record, it is the conclusion of the undersigned that service connection for a right hip disability is warranted. While the record is equivocal as to the precise diagnosis of the right hip disorder, that same evidence clearly shows, based upon the veteran's own statements, that a hip disability, while minimal in nature, did exist prior to his entry onto active duty. Therefore, the evidence clearly rebuts the presumption of soundness upon entry into service. Upon entrance onto active duty, he was asymptomatic. However, shortly after entrance, he began to complain of pain in the right hip. By the time of his discharge in May 1978, crepitus upon flexion of the right hip was noted. After separation from service, he continued to complain of chronic pain in the right hip, popping and snapping of the joint and some give away. This evidence was evaluated by an Independent Medical Expert. After a comprehensive review of the record, it was the opinion of this expert that the veteran had, indeed, suffered from a minimal right hip disorder at the time of his entrance onto active duty. It was then opined that this duty caused a worsening of this disability. This was demonstrated by the facts that he was asymptomatic upon entrance, with symptoms gradually worsening during service until, by his discharge, crepitation was present. The Independent Medical Expert recommended a MRI scan to see if the veteran has avascular necrosis, and while this study is not needed for a favorable decision on the issue presented it would be useful for rating the disability. Therefore, after considering the evidence, the expanded section of the Board finds that the veteran's preexisting right hip disability of undetermined etiology was aggravated by his period of service. Thus, the evidence supports a finding of entitlement to service connection for a right hip disability. ORDER Service connection for a right hip disability of undetermined etiology is granted. C. P. RUSSELL D. C. SPICKLER KENNETH R. ANDREWS J. E. DAY R. PELLETIER M. CHEEK NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.