Citation Nr: 0813368 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 07-04 940 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral knee disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe. 2. Entitlement to service connection for bilateral hip disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from August 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 RO rating decision that denied service connection for bilateral knee disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe, and denied service connection for bilateral hip disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe. In January 2008, the veteran testified at a Travel Board hearing at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran is service-connected for residuals of a fracture of the left fifth toe. His service medical records do not show complaints, findings, or diagnoses of any right or left knee or hip disabilities. The service medical records do show treatment for a fracture of the left fifth toe in August 1966. Post-service treatment records show treatment for disorders including knee and hip problems. For example, a July 2005 report from R. K. Dhar, M.D., noted that the veteran was seen complaining of pain in his lower back and hips which began in September 2004. The diagnoses included trochanteric bursitis, osteoarthritis of the hip, and degenerative disc disease of the spine. An April 2006 statement from M. Riss, D.O., reported that the veteran's hip and knee problems were exacerbated by the original foot injury of 1966 due to his altered gait. The Board observes that there is no indication that Dr. Riss reviewed the veteran's claims file in providing his opinion. A June 2006 VA feet examination report related diagnoses of residuals of left fifth toe fracture; bilateral tailor's bunions; and submetatarsal five calluses of the left foot which was significantly thicker than the right foot. The examiner noted that such was due to abnormal weight-bearing from the fifth toe fracture. A June 2006 statement from A. E. Palmieri, M.D., indicated that the veteran had been under his care for hip and knee problems and that he was last seen at his office in June 2006. Dr. Palmieri stated that the veteran also had marked deformity of his foot at the fifth metatarsophalangeal joint secondary to a fracture he sustained during active military service in 1966. It was noted that over the subsequent years, the veteran had suffered intermittent episodes of severe foot pain resulting in a limp. Dr. Palmieri stated that it was his opinion, based on a reasonable degree of medical probability, that the veteran's current knee and hip problems had been exacerbated as a result of his altered biomechanics, i.e., abnormal gait pattern, during the symptomatic episodes related to his foot injury/deformity. The Board notes that there is also no indication that Dr. Palmieri reviewed the veteran's claims file in providing the above opinion. A September 2006 statement from a VA podiatrist, noted that the veteran's claims file and his June 2006 VA feet examination report were reviewed. The podiatrist indicated that the veteran's service records showed that he suffered a fracture to the fifth proximal phalanx at the base in August 1966. It was reported that the veteran had an injury with a hatch door that fell onto the foot and fractured the toe. The podiatrist stated that based on that information, the veteran's left hip condition and left knee condition were not caused by the fifth toe fracture. As to whether the hip and knee were aggravated by the fifth toe residuals of a fracture, the podiatrist commented that she could not provide the etiology of the hip and knee conditions or provide if the conditions were aggravated by the fracture of the foot without resulting to mere speculation. The Board observes that the VA podiatrist did not specifically address the statements from Dr. Riss or Dr. Palmieri. Additionally, there was no information provided concerning whether the veteran had any right knee or right hip problems and, if so, as to their etiology. An October 2006 VA orthopedic examination report indicated that a podiatry note regarding the veteran's left foot was not of record. The veteran reported that he injured his left foot in 1966 and that he had suffered from an intermittent limp since that time that occurred as often as several days out of the week while in the winter. He stated that he had a gradual onset of pain about ten or fifteen years ago in his left hip. The veteran also reported that his left knee had a gradual onset of pain ten or fifteen years ago. As to an impression, the examiner stated that at that point, he had no evidence of the veteran sustaining any injuries to his knee or to his hip. The examiner stated that he had no objective documentation of the veteran having a limp between 1966 and the present, which was forty years. The examiner commented that, therefore, he believed it would be purely speculative to make any definitive statement about causation of the veteran's left hip strain and his left patellar femoral syndrome. The examiner remarked, however, that if, in fact, the veteran had a limp for all of those years, which the podiatrist might be able to help determine, then it would be at least as likely as not that the hip and knee were secondary to the foot. The examiner noted that the veteran had no complaints about the right hip or knee and that his complaints were all left-sided. There is no indication that the examiner reviewed the veteran's claims file and he specifically indicated that he did not have the September 2006 podiatrist opinion. The Board observes that the opinions discussed above are contradictory. Additionally, as noted above, although the VA podiatrist stated that she reviewed the veteran's claims file in her September 2006 opinion, she did not discuss the opinions provided by Dr. Riss and Dr. Palmieri as to aggravation. Further, the VA examiner pursuant to the October 2006 VA orthopedic examination report did not review the veteran's claims file and did not have the September 2006 opinion from the VA podiatrist at the time of that examination. Board also notes that none of the opinions discuss whether the veteran has right knee or hip problems or their etiology. The Board observes that the veteran has not been afforded a VA examination with an opinion after a review of the entire claims file that addresses the opinions of Dr. Riss and Dr. Palmieri, as to his claims for service connection for bilateral knee disabilities and bilateral hip disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe. Such an examination should be accomplished on remand. 38 C.F.R. § 3.159(c)(4). Further, at the January 2008 Board hearing, the veteran testified that he was currently receiving VA treatment for his knee and hip disabilities. He stated that he was going through physical therapy at the Lyons, New Jersey VA Medical Center. He indicated that he probably went about every six months. The Board observes that there are no recent VA treatment reports of record. As there are possible further VA treatment records that may be pertinent to his claims, they should be obtained. See Bell v. Derwinski, 2 Vet.App. 611 (1992); 38 C.F.R 3.159(c). Accordingly, these issues are REMANDED for the following: 1. Obtain copies of the veteran's VA medical records, which are not already in the claims folder, concerning his claimed bilateral knee and bilateral hip problems, and dated since his separation from service, from the Lyons, New Jersey VA Medical Center. 2. Ask the veteran to identify all other medical providers who have treated him for bilateral knee and bilateral hip problems since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 3. Schedule the veteran for a VA orthopedic examination by a physician to determine the nature of his claimed bilateral knee disabilities and bilateral hip disabilities and their possible relationship to service or his service- connected residuals of a fracture of the left fifth toe. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current right and left knee disabilities and right and left hip disabilities. Based on a review claims file, examination of the veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is as likely as not (50 percent or greater probability) that any diagnosed right or left knee disabilities and right or left hip disabilities are etiologically related to the veteran's period of service. If not, the examiner should then opine as to whether the veteran's service-connected residuals of a fracture of the left fifth toe caused or aggravated (permanently worsened beyond the natural progression) any right or left knee disabilities and right or left hip disabilities, and if so, the extent to which they are aggravated. 4. Thereafter, review the veteran's claims for entitlement to service connection for bilateral knee disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe, and entitlement to service connection for bilateral hip disabilities, to include as secondary to service-connected residuals of a fracture of the left fifth toe. If the claims are denied, issue a supplemental statement of the case to the veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).