Citation Nr: 1114629 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 09-29 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from April 1993 to April 1998. This matter comes to the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In an April 2008 rating decision, the Boise RO, inter alia, denied service connection for a bilateral hip disability. In a June 2009 rating decision, the Boise RO granted service connection for PTSD and assigned an initial 30 percent disability rating. The Board notes that although the appellant is a resident of Oregon, his claims were adjudicated by the Boise RO as he is a VA employee at the RO in Portland, Oregon. See M21-1, Pt. III, Subpart. ii, Ch. 5.A.2a. In a November 2009 statement, the appellant indicated that he wished to withdraw his pending appeal with respect to the issue of entitlement to service connection for gastroesophageal reflux disease (GERD). Accordingly, the Board finds that such issue is no longer within its jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease); see also 38 C.F.R. § 20.204 (2010). In January 2011, the appellant testified at a Board videoconference hearing with respect to the remaining issues on appeal. As set forth in more detail below, a remand is necessary with respect to the claim of entitlement to an initial rating in excess of 30 percent for PTSD. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The appellant's current bilateral hip disability, including trochanteric bursitis with degenerative changes, is as likely as not causally related to his service-connected bilateral knee, ankle, and foot disabilities. CONCLUSION OF LAW Affording the appellant the benefit of the doubt, service connection for a bilateral hip disability, including trochanteric bursitis with degenerative changes, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Background The appellant's service treatment records show that in January 1997, he was hospitalized after he sustained multiple injuries in a motor vehicle accident, including injuries to his back and right knee. During the course of hospitalization, X-ray studies of the appellant's pelvis were performed and revealed no abnormalities, including of the hip joints. Diagnoses included compression fracture of L3 and right posterior tibial avulsion fracture. In April 1998, the appellant was medically discharged from active duty as a result of his disabilities. In May 1998, the appellant submitted an original application for VA compensation benefits, seeking service connection for multiple conditions, including numerous orthopedic disabilities incurred in the January 1997 motor vehicle accident. His application, however, is silent for any mention of right or left hip disabilities, as is medical evidence received in support of the original application. In a July 1998 rating decision, the RO granted connection for multiple disabilities, including status post compression fracture, L3, with degenerative changes, L3-4, rated as 20 percent disabling; and status post posterior tibial fracture, right knee, rated as 10 percent disabling. The RO also granted service connection for multiple additional orthopedic disabilities, including residuals of blunt chest trauma with sternum fracture, rated as 10 percent disabling; and bilateral pes planus, degenerative changes in the right knee, and degenerative changes in the left knee, all rated as zero percent disabling. Pursuant to subsequent claims filed by the appellant, his service-connected orthopedic disabilities are currently as follows: posterior tibial fracture, status post multiple surgeries, right knee, rated as 30 percent disabling; compression fracture of the lumbar spine, rated as 20 percent disabling; residuals of blunt chest trauma with sternum fracture, rated as 10 percent disabling; right ankle strain, rated as 10 percent disabling; left ankle strain, rated as 10 percent disabling; degenerative changes in the right knee, rated as 10 percent disabling; status post trauma of the right shoulder, rated as 10 percent disabling; degenerative changes in the left knee, rated as zero percent disabling; and bilateral pes planus, rated as zero percent disabling. Evidence assembled in connection with these claims included a November 1999 VA medical examination report which notes that X-ray studies of the appellant's pelvis conducted in connection with the examination showed sclerotic facet joints bilaterally at L5/S1, very slight sclerosis of the sacroiliac joints, mild buttressing of the femoral necks, and borderline narrowing of the hip joints. In December 2007, the appellant submitted a claim of service connection for a bilateral hip disability, which he theorized may be secondary to his service-connected low back disability. In pertinent part, VA clinical records assembled in connection with the appellant's claims show a long history of treatment for various orthopedic complaints, including pain and degenerative changes in the low back, knees and ankles, as well as bilateral foot pain. In June 2007, the appellant sought treatment for chronic ankle pain as well as new onset bone pain in his right lower extremity. He denied recent injury. The examiner noted that without a specific injury, the appellant's right lower extremity symptoms were unlikely secondary to a traumatic fracture. Subsequent X-ray studies were negative. The examiner indicated that given these X-ray findings, it was likely that the appellant had changed his gait due to ankle pain which may have resulted in additional leg and joint pain. In September 2007, the appellant sought treatment for hip pain. In October 2007, the appellant reported that he had had bilateral hip and low back pain since his in-service automobile accident. X-ray studies showed mild degenerative changes of the hips, bilaterally. The appellant underwent VA medical examination in March 2008 at which his complaints included multiple joint pains, including in his back, hips, knees, ankles, and feet. The examiner noted that the appellant's medical records documented multiple orthopedic issues including degenerative joint disease of the lumbar spine and four knee surgeries. The appellant reported that his hip pain began eight to nine months prior with a generalized ache which increased with activity. After examining the appellant, the examiner diagnosed him as having chronic lumbar spine strain with degenerative changes. Also diagnosed was bilateral hip greater trochanteric bursitis with minimal degenerative changes. The examiner indicated that he did not believe that the appellant's service-connected low back disability had caused him to develop degenerative changes in the hips. He did indicate, however, that the appellant's hip disability was associated with an overuse injury or compensation. In that regard, he concluded that the appellant's hip disability was not consistent with compensation from his service-connected low back disability. Rather, he concluded that the appellant's bilateral hip disability was most likely consistent with compensation due to foot and ankle problems which had altered his gait. The examiner concluded that the appellant's bilateral hip disability was therefore most likely related to his lower extremity disabilities, rather than his back disability. The appellant again underwent VA medical examination in June 2009. On examination, the appellant's complaints included low back pain, as well as bilateral hip, knee, ankle, and foot pain. The examiner noted that the appellant's medical records documented that he had been issued bilateral ankle and knee braces, a back brace, and orthotics. The examiner also noted that the appellant had used crutches during episodes of flare-ups of his bilateral foot pain. After examining the appellant and reviewing his claims folder, the examiner's diagnoses included trochanteric bursitis with IT band syndrome of the bilateral hips and degenerative changes. The examiner concluded that these conditions bore no relationship to the appellant's service-connected lumbar spine disability. He concluded, however, that the appellant's bilateral hip trochanteric bursitis and IT band syndrome were secondary to his service-connected bilateral ankle and foot disabilities, as on objective examination he had exhibited an antalgic gait with poor mechanics. The examiner noted that this was consistent with the overuse improper mechanics with ambulation from which the appellant was suffering. Additionally, the examiner noted that although X-ray studies had shown incidental findings of mild degenerative changes, these were unrelated to the appellant's service-connected low back, bilateral knee, ankle, and foot disabilities. The examiner, however, explained that the appellant's current bilateral hip symptoms such as pain and decreased range of motion were secondary to his greater trochanteric bursitis, not degenerative changes. At his January 2011 Board hearing, the appellant testified that he first began experiencing hip symptoms in 2001, including pain and grinding. He recalled that he sought treatment and was diagnosed as having arthritis and prescribed physical therapy and pain medication. He indicated that more recent diagnoses included iliotibial band syndrome and greater trochanteric bursitis. The appellant testified that it was his belief that his service-connected orthopedic disabilities caused his bilateral hip disability. Applicable law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2010). Service connection for certain diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2010). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2010). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). 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). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant seeks service connection for a bilateral hip disability. He contends that his bilateral hip disability is causally related to an altered gait caused by his service-connected orthopedic disabilities. As discussed in detail above, the appellant has twice been examined by VA medical professionals for the purpose of obtaining an opinion regarding the etiology of his current bilateral hip disability. Both VA examiners expressly concluded, after examining the appellant and reviewing his claims folder, that the appellant's bilateral trochanteric bursitis is causally related to his service-connected lower extremity disabilities, including bilateral ankle and foot disabilities. The Board finds that these medical opinions are persuasive and assigns them great probative weight. The opinions were rendered by medical professionals who have the expertise necessary to opine on the matter at issue in this case. In addition, both examiners addressed the appellant's contentions, based their conclusions on a review of the claims folder and an examination of the appellant. Both examiners provided a rationale for their conclusions. Indeed, their rationale that the appellant's bilateral hip disability is due to an altered gait from his service-connected lower extremity disabilities appears to be consistent with the other evidence of record, including the June 2007 VA clinical record noting that the appellant had changed his gait due to ankle pain which may have resulted in additional joint pain. In addition to the factors discussed above, the Board notes that the record contains no probative evidence contradicting the conclusions of these VA examiners or otherwise suggesting that the appellant's current bilateral trochanteric bursitis is due to any other cause than his service-connected lower extremity disabilities. For these reasons, the Board assigns the March 2008 and June 2009 VA medical opinions great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). Here the Board notes that the VA examiners appeared to have disagreed with respect to whether the appellant's bilateral hip degenerative changes were causally related to his service-connected lower extremities. For the reasons discussed above, the Board finds that both examination reports are entitled to equal probative weight. Thus, the Board finds that the evidence is in equipoise as to whether the appellant's bilateral degenerative changes are due to his service-connected lower extremity disabilities. Thus, service connection for degenerative changes of the bilateral hips is warranted. The Board observes that this conclusion is strengthened by the fact that X-ray studies of the appellant's pelvis conducted in November 1999, shortly after the expiration of the one year regulatory presumptive period, identified borderline narrowing of the hip joints, bilaterally. See 38 C.F.R. §§ 3.307, 3.309 (2010) (noting that a chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis); see also Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). As indicated previously, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made. Thus, the Board finds that the evidence of record is at least in equipoise and therefore sufficient to award service connection for a bilateral hip disability, including trochanteric bursitis with degenerative changes. ORDER Entitlement to service connection for a bilateral hip disability, including trochanteric bursitis with degenerative changes, is granted. REMAND The appellant also seeks an initial disability rating greater than 30 percent for his service-connected PTSD. Specifically, he argues that his service-connected psychiatric symptomatology more nearly approximates the criteria for an initial 50 percent disability rating for PTSD. Since the RO last reviewed this matter in the January 2010 Statement of the Case, the appellant has submitted numerous pieces of pertinent evidence, including a February 2010 statement from his VA psychologist addressing the severity of the appellant's service-connected PTSD, as well as statements from his spouse, a former colleague, his supervisor, and former supervisor, describing the effects of the appellant's PTSD symptomatology on his social and occupational functioning. This evidence is highly pertinent to the appellant's appeal and he has not waived his right to initial RO consideration of such evidence. Because the record on appeal contains no indication that the RO has considered this evidence, a remand is necessary. See 38 C.F.R. § 20.1304 (2010). Accordingly, the case is REMANDED for the following action: After accomplishing any additional development deemed necessary, the RO should review all the evidence of record, including the additional evidence received since the last Statement of the Case in January 2010. If the benefit sought on appeal, i.e. an initial 50 percent disability rating for PTSD, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the appropriate opportunity to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2010). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs