Citation Nr: 1318220 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-37 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a back disorder, including as secondary to service-connected bilateral degenerative joint disease, first metatarsophalangeal joint of both feet, and degenerative joint disease, left and right knees. 2. Entitlement to service connection for a bilateral hip disorder, including as secondary to service-connected bilateral degenerative joint disease, first metatarsophalangeal joint of both feet, and degenerative joint disease, left and right knees. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from November 2004 to August 2007. These claims come before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Virtual VA paperless claims processing system (Virtual VA) includes no other pertinent documents for consideration in support of these claims. 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 sincerely regrets the delay associated with this action, but additional development is necessary to ensure that the Veteran's claims file includes all information needed to decide these claims. The Veteran seeks service connection for low back and bilateral hip disabilities as secondary to the service-connected degenerative arthritis he has in his feet/ankles and knees. Allegedly, the arthritis has caused him to change his gait to help relieve the pain and pressure in his ankles and knees, resulting in pain and stiffness in his low and mid back and hips. The Veteran alternatively claims that his nonservice-connected low back and bilateral hip disorders are aggravated by his service-connected feet and knee disabilities. The Veteran's service treatment records show complaints of upper back pain in March 2006 with an assessment of back strain. There were also complaints of bilateral hip pain on separation examination in February 2007. Just one month after the Veteran's separation from service, a VA treatment record dated in September 2007 shows that he complained of hip pain. It was noted that he carried a 30 pound machine gun and other heavy equipment almost all the time during service. On VA examination in February 2009, x-rays of the hips showed mild flattening of the bilateral femoral heads which can be seen with avascular necrosis. Subsequent magnetic resonance imaging (MRI) showed no avascular necrosis of the hips. X-rays of the spine showed minimal degenerative changes of the facets. The Veteran asserts the VA examination he underwent in February 2009 provided an inaccurate assessment of his physical condition. He further asserts that although the rating decision, in which the RO denied his claims, mentioned the MRI, it did not mention that the MRI showed wear on the head of his left femur. He claims that this finding can be directly attributed to his change in gait. The Veteran also asserts that he has limited range of motion, which testing in a doctor's office does not take into account. He contends that he is no longer able to pick up his 30-pound son unless he braces himself or his spouse hands his son to him while he is in a standing position. He further contends that he cannot lie on his sides with his weight against his hips on a hard surface, such as a carpeted floor, cross his left leg over his right without a popping or grinding sound occurring, or lay his left leg flat against his right leg. The Veteran points out that, before entering service in November 2004, he had no back problems. Allegedly, after injuring his feet and knees in service, he developed a slight limp and slight change in gait, the latter when walking extended distances. He asserts that, during this time period, he sustained no back injuries. The Veteran has submitted a statement from his spouse confirming his assertions. According to this statement, the Veteran experiences pain and stiffness in the lower back and hips when participating in the easiest of activities, including lifting their son. Allegedly, once the Veteran's back pain manifests, he begins to feel pain in his hips and this pain can last for a few days. The Veteran's spouse believes the Veteran's knee and feet conditions caused this pain as he never had it prior to being diagnosed with bilateral degenerative joint disease in the knees and feet. In November 2010, in response to the Veteran's dissatisfaction with the first examination, the RO afforded him another. The reports of these examinations are inadequate to decide these claims. In both cases, the examiners succinctly ruled out a relationship between the Veteran's low back and bilateral hip disabilities and his service-connected bilateral feet and knee disabilities on the basis that the Veteran's gait and wear pattern were normal and there was no evidence of undue stress on his hips/knees. Neither examiner considered the Veteran's and his spouse's assertions, noted above, some of which are competent on the matter of what lay-observable back and hip symptoms the Veteran has been experiencing since service. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In addition, neither examiner responded to the Veteran's assertion that the hip abnormality shown on the 2009 x-rays and MRI is indicative of an abnormal gait. Neither examiner offered an opinion regarding whether, as alleged, the Veteran's service-connected bilateral feet and knee disabilities are aggravating his low back and bilateral hip disabilities. Such an opinion is crucial especially considering the Veteran was discharged from service in August 2007 and, in February 2009, on x-rays, was shown to have minimal degenerative changes of the spine and flattening of the femoral heads of the hips. As the case must be remanded for the foregoing reasons, the Veteran's updated VA treatment records should also be obtained. Accordingly, this case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's treatment records from the Mount Vernon and Fayetteville VA treatment facilities, dated since September 2010. 2. Thereafter, obtain an addendum opinion to the February 2009 and November 2010 VA examinations. The claims file and a copy of this remand must be reviewed by the examiner. The VA examiner should indicate in the report whether the claims file was reviewed. If the examiner determines that a VA examination of the Veteran is necessary, then one should be scheduled. The examiner should identify all back and hip disorders found to be present. The examiner should discuss the significance of the back and hip findings shown on x-rays and MRI in 2009, including degenerative changes of the spine and flattening of the femoral head of the left hip. The examiner should discuss whether the hip abnormality is indicative of an abnormal gait. (a) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current back and/or hip disability had its clinical onset during active duty, or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the Veteran's statement that he carried a 30 pound machine gun and other heavy equipment almost all the time during service; the service treatment records showing complaints of upper back pain in March 2006 with an assessment of back strain and the complaints of bilateral hip pain on separation examination in February 2007; and the complaints of hip pain in the September 2007 VA treatment record, just one month after the Veteran's separation from service. The Veteran has stated that since service, he has experienced problems and his spouse has indicated that she has observed the pain and stiffness. For the purpose of providing this opinion, the examiner should accept as true the Veteran's and his spouse's assertions in this regard. (b) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current back and/or hip disability was caused by the Veteran's knee and foot disabilities, to include any associated gait disturbance. (c) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current back and/or hip disability is aggravated by the Veteran's knee and foot disabilities, to include any associated gait disturbance. The examiner must provide complete rationales for all conclusions reached. 3. Next, review the report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, readjudicate the claims on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). _________________________________________________ P.M. DILORENZO 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) (2012).