Citation Nr: 1322001 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-03 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability. 2. Entitlement to a compensable evaluation for traumatic arthritis residuals of the right ankle. 3. Entitlement to a compensable evaluation for residuals of a fracture to the left tibia and fibula. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (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 Veteran contends that entitlement to service connection for a left hip disability is warranted. He alleges that he has a left hip disability which is related to his active duty service or to his service-connected right ankle or left tibia and fibula disabilities. In an October 2008 statement, he reported that his left leg has been 5/8 inches shorter than his right leg since an in-service injury in March 1966, and that he required a left hip replacement as a result. In support of his claim, the Veteran submitted an October 2009 statement from N. Camperlengo, M.D., who opined that it was as likely as not that the Veteran's hip replacement surgery was directly related to his having had a leg length discrepancy due to injuries sustained during a parachute jump in service. However, Dr. Camperlengo did not provide any supporting rationale for the opinion; nor did she indicate that she reviewed the Veteran's claims file or service treatment records in preparing the opinion. It is also unclear from Dr. Camperlengo's opinion, and from the remainder of the medical evidence of record, whether the Veteran has a residual left hip disability caused by the leg length discrepancy or the left hip replacement. The Veteran was provided with two VA examinations with regard to his left hip disability. A February 2009 VA examiner diagnosed osteoarthritis of the left hip and opined that it was less likely as not that the left hip osteoarthritis was due to his service-connected residuals of a fracture of the left tibia and fibula. The examiner did not provide any supporting rationale for the opinion. The Veteran underwent another VA examination in October 2009. The diagnosis was left hip osteoarthritis. The examiner concluded that it was less likely as not that the Veteran's degenerative joint disease was related to a leg length discrepancy, as that theory did not hold up to medical scrutiny. The examiner noted that this was further supported by the evidence showing relatively bilateral equal osteoarthritis of the hips which was consistent with the natural aging process. Although the VA examiners have both provided opinions that the Veteran's left hip osteoarthritis was not caused by his active duty service or a service-connected disability, neither examiner provided an opinion as to whether the Veteran's current left hip disability was aggravated by his service-connected disabilities. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As neither the February 2009 nor the October 2009 VA examiners addressed the question of whether the Veteran's current left hip disability was proximately caused or aggravated by his service-connected disabilities, the Board finds those opinions to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). Accordingly, the claim must be remanded for a new VA examination With regard to the Veteran's claims for compensable ratings of his service-connected right ankle disability and left tibia and fibula disability, the Board observes that the February 2009 VA examination is unclear as to the level of functional loss which may be caused by the Veteran's right ankle and left tibia and fibula disabilities. On the one hand, the examiner reported that there was no painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness, or instability, except as noted, and no additional limitation of motion after at least three repetitions except as noted. However, the examiner then reported that additional limitation of function due to flare-ups could not be determined without resorting to mere speculation. Thus, it is unclear to the Board from the current evidence in the claims file whether the Veteran's right ankle and left tibia and fibula disabilities cause functional loss beyond that contemplated by the assigned noncompensable ratings. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). For the foregoing reasons, the Board finds that a new VA examination to determine the current severity of the Veteran's right ankle and left tibia and fibula disabilities is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the VA Medical Center in Biloxi, Mississippi, and the VA outpatient clinic in Pensacola, Florida and any other associated outpatient clinic dated from February 2009 to the present. All attempts to obtain these records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left hip disability. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. The examiner should then offer an opinion as to whether the Veteran's left leg disability is at least as likely as not (50 percent probability or more) etiologically related to his period of active military service, to include his in-service parachute jump injuries. The examiner should specifically address the Veteran's contention that the injuries sustained from his parachute jump caused him to have a left leg length discrepancy, and the examiner should provide an opinion as to whether the Veteran currently has a leg hip disability caused by such leg length discrepancy. If the examiner's opinion is negative, then the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left hip disability is caused by or aggravated by any of his service-connected disabilities, including his service-connected right ankle disability and his service-connected left tibia and fibula disability. Aggravation means that the disability was permanently worsened beyond the natural progression of the disease. All necessary diagnostic testing should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale. 2. Provide the Veteran with a new VA examination to determine the current severity of his service-connected right ankle and left tibia and fibula disabilities. The claims file and a copy of this Remand must be provided to and reviewed by the VA examiner. Any appropriate diagnostic and/or radiologic testing should be conducted. All range of motion studies should be performed, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, including weakness, fatigability, incoordination, or limitation of function due to pain, as discussed in DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner should also discuss whether the Veteran's left tibia and fibula disability caused nonunion with loose motion or malunion with slight, moderate, or marked knee or ankle disability. Any opinion stated should be accompanied by a complete rationale, citing pertinent in-service and/or post-service evidence as appropriate. 3. Notify the Veteran that he must report for the examinations and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Readjudicate the issues on appeal. If any of the issues on appeal remain denied, issue a supplemental statement of the case containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for the Veteran and his representative to respond. Thereafter, return the appeal to the Board. 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).