BVA9502295 DOCKET NO. 93-06 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for aseptic necrosis of the left femoral head. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from September 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1988 decision of the Department of Veterans Affairs (VA), Los Angeles, California, Regional Office (RO), which found that no new and material evidence had been presented to reopen a claim for service connection for aseptic necrosis of the left femoral head. After canceling numerous hearings scheduled throughout 1990, the veteran testified at a hearing conducted at the RO in December 1990. An RO decision in March 1973, in part, determined that a post- service dislocation of the veteran's left hip was not part of his original service-connected disability of that joint and, therefore, in effect, denied service connection for residuals of the post-service injury of the left hip. That decision was not appealed and became final. There was no medical evidence of necrosis of the left hip at that time, and it was not mentioned in the rating decision. The next rating decision was in July 1979 denying a permanent and total disability rating for pension purposes. A March 1979 VA examination had diagnosed aseptic necrosis of the left femoral head, and this disability was listed as non-service-connected in the rating decision, without any discussion and without notice to the veteran. The first actual consideration of service connection for necrosis of the left hip was the September 1988 rating decision now on appeal, which found no new and material evidence to reopen the claim. Under these circumstances, I find that this issue should have been considered on its merits, rather than as an application to reopen a previously denied claim. Volume III of the veteran's claims file contains a June 1991 request for waiver. This is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his aseptic necrosis of the left femoral head was caused by his service-connected fracture and dislocation of the left hip. His representative cites the medical literature in pointing out that the most common cause of the disability at issue is a fracture or dislocation of the femoral neck. A VA examination is requested. DECISION OF THE BOARD 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 files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is in equipoise and supports a grant of secondary service connection for aseptic necrosis of the left femoral head. FINDING OF FACT The veteran's aseptic necrosis of the left femoral head is etiologically related to his service-connected fracture and dislocation of the left hip. CONCLUSION OF LAW Aseptic necrosis of the left femoral head is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 5107(b) (1993); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from September 1966 to July 1969. The service medical records show that he was hospitalized from November 1968 to February 1969 following an auto accident, which resulted in a left hip injury. It was reported upon admission that the hip appeared to be grossly dislocated at the joint. X-rays of the left hip revealed an acetabular fracture. The final diagnoses were fracture of the left acetabulum and dislocation of the left hip secondary to trauma. An RO decision in August 1970 granted service connection and assigned a noncompensable rating for fracture of the left acetabulum and dislocation of the left hip. Private clinical records show that the veteran was hospitalized in September 1972 after he had fallen off a horse and injured his left hip. The admission diagnosis was recurrent posterior dislocation of the left hip. The dislocation was reduced without any difficulty. He was transferred to a VA hospital where he remained for approximately three weeks. An X-ray examination during that time showed good alignment of the left hip with no acetabular fracture. He was placed in traction. The pertinent discharge diagnosis was dislocation of the left hip. The veteran underwent a VA orthopedic examination in March 1979. His complaints included left hip pain and numbness of the outside of the left thigh. A limp secondary to left hip pain was observed. Clinical findings included limitation of motion of the left hip and poor muscle strength in the left hip region. An X-ray examination of the joint revealed aseptic necrotic changes of the femoral head. Private clinical records dated from April to July 1982 show that the veteran was evaluated for left hip complaints following a fall from a ladder in April 1982. It was reported following an X-ray examination of his left hip shortly after the injury that he had post-traumatic arthritic narrowing, reactive sclerosis, and subarticular erosions in his left hip following two prior hip joint dislocations. An RO decision in December 1982 increased the rating for the veteran's left hip disability from noncompensable to 10 percent. VA clinical records dated in the 1980's show that the veteran was seen on numerous occasions for evaluation and treatment of left hip pain. It was reported on a number of occasions that he had had chronic left hip pain since he sustained a 1973 (post- service) left hip dislocation. A CT scan in February 1983 revealed post-traumatic changes of the left femoral acetabular joint and a possible free fragment in the medial aspect of the left femoral acetabular joint; it was noted that there was no evidence of avascular necrosis. An X-ray examination in June 1985 showed a subchondral defect with marginal sclerosis of the left femoral head and further study was recommended. Following an orthopedic examination one month later, the impression was residuals of fracture dislocation of the left hip with traumatic arthritis. An RO decision in August 1985 increased the rating for the veteran's left hip disability from 10 percent to 20 percent. A VA CT scan of the veteran's left hip in April 1987 revealed deformity of the left femoral head with a subchondral cyst in the anterior surface, which was reportedly compatible with mild degenerative changes that might be related to trauma. Additional VA clinical records show that the veteran continued to be seen on an outpatient basis on multiple occasions during the late 1980's to 1990 for evaluation and treatment of left hip pain. He was admitted to a VA hospital in late June 1987 for possible open exploration and removal of a fragment, along with possible arthroplasty of the left hip, but the surgery was canceled. Subsequently dated outpatient clinic records indicate that he was rescheduled for left hip surgery, but it was not performed. It was reported in an outpatient clinic record dated in April 1988 that he had chronic left hip pain secondary to two traumatic dislocations and traumatic avascular necrosis. It was subsequently noted on several occasions that the veteran's left hip pain was secondary to his two prior hip injuries. It was opined in September 1988 that his osteonecrosis of the left femoral head occurred because of his previous hip fracture and/or hip dislocations. Similar assessments were subsequently reported. It was noted in December 1988 that the nature of his avascular necrosis was possibly post-traumatic with two prior dislocations. A transcript of testimony presented by the veteran at a hearing conducted at the RO in December 1990 is on file. He described an in-service motor vehicle accident which resulted in a fracture and dislocation of his left hip. He said that he was treated for left hip symptoms, including pain, during the years immediately after that injury and ever since. He indicated that he started to have a left leg limp at the time of his second left hip injury after service. He further testified that he was diagnosed with aseptic necrosis of the left femoral head a number of years later, and he pointed out that it developed in the same area as his original in-service injury. He said that he has been told by physicians that both injuries contributed to the deterioration of the head of his femur. He recalled that he was advised shortly after his first injury that a hip replacement would eventually be necessary. He indicated that his left hip injury during service was far more severe than his post-service trauma to the same joint. In support of that conclusion, he pointed out that the first injury resulted in a fracture as well as a dislocation of the hip. Additional VA outpatient clinic records, dated from June 1990 to November 1991 are on file. The veteran continued to be seen for evaluation and treatment of left hip pain. II. Analysis The Board initially finds that the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. The relevant evidence has been obtained by the RO, and there is no further duty to assist the veteran in developing facts pertinent to his claim. Id. The veteran claims that his aseptic necrosis of the left femoral head is etiologically related to his service-connected fracture and dislocation of the left hip. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). The medical literature has been cited in support of the argument that the disability at issue is often associated with trauma. That the veteran's avascular necrosis of the left femoral head is post-traumatic in origin is not in dispute. However, since he sustained both in-service and post-service injuries involving his left hip, and only the former is service connected, the question remains whether his avascular necrosis of the left femoral head was caused by the first injury. In reviewing the post-service medical documentation on file, I note that it was reported on a number of occasions that the veteran has had chronic left hip pain since he sustained a 1973 - post-service - left hip dislocation. This would tend to suggest that it was the latter injury that eventually resulted in avascular necrosis of the left femoral head. However, it has also been reported on several occasions by physicians that his 1973 left hip injury and 1968 in-service trauma to the same joint eventually culminated in the pathology in question. Thus, there is medical opinion of record that supports the contended causal link. It is pertinent to point out that the veteran's left hip injury that occurred during service resulted in a gross dislocation and fracture of the left hip, whereas the second injury resulted in a dislocation only that was reduced without any complication. Moreover, he was hospitalized for a far longer period of time following the first injury. Thus, it would appear that his service-connected injury not only contributed to the eventual deterioration of his left femoral head, but was in all probability a primary cause. In any event, it is my judgment that the evidence for and against the claim that there is a causal relationship between the veteran's avascular necrosis of the left femoral head and his service-connected left hip injury is in equipoise. Accordingly, under 38 U.S.C.A. § 5107(b), secondary service connection for the disability at issue is warranted. (CONTINUED ON NEXT PAGE) ORDER Secondary service connection for avascular necrosis of the left femoral head is granted. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.