Citation Nr: 1331122 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-42 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1989. He also served in the Virginia Army National Guard from May 1993 to May 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board previously remanded the appealed claims in August 2012 and again in May 2013. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. The issues of entitlement to service connection for a bilateral knee disorder and a spine disorder are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. A right hip disorder, status post total hip replacement, is shown by the evidence of record to be related to military service. 2. A left hip disorder, status post total hip replacement, developed as secondary to the now service-connected right hip disorder. CONCLUSIONS OF LAW 1. A right hip disorder, status post total hip replacement, was incurred in active military service. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. A left hip disorder, status post total hip replacement, is proximately due to service-connected right hip disorder. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to service connection for right and left hip disorders based on their having their origin in strenuous activities performed over the course of the his eight years in the Marines infantry, including long military marches and runs carrying heavy equipment. Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.303(a); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2013). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's statements are competent evidence as to a history of past injury, treatment, and symptoms to the extent they address matters observable to lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). A June 1989 service treatment record for the right ankle assessing inversion sprain noted some associated hip difficulty, stating somewhat cryptically, "caused hips to wear out." Service treatment and examination records fail to provide further comment addressing the hips. An April 2005 private orthopedic consultation treatment note informed that the Veteran had right hip pain "for many years" which had recently become worse. He was noted to be employed as a police officer at an airport. X-rays for the April 2005 treatment revealed advanced osteoarthritis of the right hip. The Veteran underwent right total hip replacement in August 2005. An x-ray of the left hip in 2006 revealed mild degenerative arthritis. However, left total hip replacement was performed in 2007. Upon a July 2010 VA examination addressing the Veteran's bilateral hips, the examiner provided a diagnosis of bilateral hip arthritis, status post hip replacements. That examiner further noted that records reflected that the left hip rapidly progressed in its degeneration within two years of the right hip becoming worse, "suggesting compensatory weight bearing effects." Thus, the July 2010 VA examiner has effectively opined that the Veteran's right hip disorder caused or aggravated the Veteran's left hip disorder, supporting service connection for a left hip disorder as secondary to the right hip disorder if service connection for the right hip disorder is established. In his VA Form 9 submitted in September 2010, the Veteran asserted that he was separated from service at 30 and had arthritis by 34, and now has had both hips replaced. The Veteran thus appears to have been referring to arthritis in the hips with diagnosis within four years of service separation. At least with regard to the right hip, this is consistent with the history noted upon private treatment in April 2005, when a years-long history of right hip pain was noted, and advanced arthritis of the right hip was confirmed by x-ray. Based on the heavy physical activity over eight years in service in the Marine infantry, the Veteran's assertions of a symptomatic hip beginning shortly after service, and the absence of evidence specific injury to the right hip or sustained strenuous activity (comparable to that in service) following service, the Board finds that the evidence preponderates in favor of a causal link between service activities and development of arthritis of the right hip following service. 38 C.F.R. § 3.303. While the Board notes the negative opinions provided by VA examiners in 2010, 2012, and 2013, these opinions generally failed to note the chronology of symptoms presented, or failed to consider partial attribution of the Veteran's hip disorder to service. Rather, the examiners either discounted the competent lay statements of past symptoms or past treatment, or did not address arthritis in the hip as beginning shortly after service, or simply opined that it was more likely that the greater portion of the Veteran's hip disorder was due to his post-service career as a police officer, based on 17 years of work as a police officer with moderate to heavy work in that capacity. While the VA examiner in June 2013 superficially appeared to address all the Board's concerns in a prior remand, a review of that examiner's analysis reveals that the examiner essentially discounted or gave no credence to the Veteran's account of having received treatment for his hips in the 1990s, in years shortly after service, or to the Veteran's report of having been diagnosed with arthritis at that time. While the examiner noted the Veteran's self-report of this history, the examiner went on to provide an analysis which instead relied on the supposition that "[t]here were no complaints or workup for any hip condition for about 15 years since active duty service." Thus, the Veteran's self-report was rejected as evidence, even while the examiner failed to provide a reason for rejecting that history. The Board finds such a rejection misplaced, as the private treatment records from 2005 reflect a "many years" history of right hip pain, consistent with the self-reported history upon VA examination. Because the Board finds the Veteran's self-reported history of such hip difficulty from the 1990s shortly after service to be both competent and reasonably credible, the Board finds its rejection by the VA examiner to be misplaced. See Jandreau, 492 F.3d at 1376. The Board further notes that arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a). See 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Accordingly, the Veteran's testimony of continuity of symptomatology must be considered in determining entitlement to service connection. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that the theory of continuity of symptomatology can be used as an alternative route to establishing service connection only in cases involving those conditions explicitly recognized as a chronic disease). The Board thus finds that many of the above-noted evidentiary suppositions by VA examiners are misplaced in this case. A supposition that 17 years of post-service police work has caused the a right hip disability cannot support a negative opinion if, as in this case, the weight of the evidence supports onset of symptomatic disability four years or less following service. The evidentiary record also does not support the characterization of the Veteran's post-service work as an airport police officer as moderate to heavy physical activity, as it has been characterized by VA examiners. While the walking involved in such work may reasonably be characterized as moderate activity, heavy activity is not supported by the record. In contrast, the Veteran's activities in the Marine infantry are conceded to be, at minimum, moderate to heavy physical activity. The Board finds that the weight of the evidence is to the effect that the Veteran's right hip was symptomatic in years shortly after service, and that this condition progressed in the decade up to 2005, to a point where identified arthritis of the hip was severe, leading to the right total hip replacement performed in 2005. Because VA examiners have found that prolonged moderate to heavy physical activity may be expected to have caused or contributed to the Veteran's hip disability, the Board finds that the moderate to heavy physical activity over eight years in the Marines infantry caused or contributed to the Veteran's right hip disability. Accordingly, the weight of the evidence favors the conclusion that the Veteran's military service substantially caused his right hip disability. The weight of the evidence further supports the conclusion that favoring the left side due to the very symptomatic right hip led to acceleration of arthritis in the left hip from 2005 to 2007, and thus the left total hip replacement in 2007. The Board accordingly concludes that the evidence preponderates in favor of the claim for service connection for a right hip disorder, status post total hip replacement, on a direct basis. 38 C.F.R. § 3.303. As supported by the July 2010 VA examiner's analysis, discussed above, the evidence also preponderates in favor of service connection for a left hip disorder, status post total hip replacement, as proximately due to the now service-connected right hip disorder. 38 C.F.R. § 3.310. ORDER Service connection for a right hip disorder, status post total hip replacement, is granted. Service connection for a left hip disorder, status post total hip replacement, is granted as proximately due to service-connected right hip disorder. REMAND Bilateral Knee Disorders Upon a July 2010 VA joints examination, the Veteran had complained of bilateral knee pain, stiffness, and joint limitation of motion. He reported a history of bilateral knee pain beginning in the final years of service. The examiner diagnosed chronic knee strain with limitation of motion. The examiner noted that there was only mild narrowing of the joint spaces, and explained that given the length of time since service, if there had been a condition from service then additional wear than was observed currently on x-rays would be expected to be seen. The examiner also noted the single record of right knee complaint in service in 1986, which was attributed to muscle strain. On these bases, the examiner concluded that it was not at least as likely as not that the Veteran's bilateral knee disorders originated in service. Upon an October 2012 VA examination of the hips, the Veteran reported that he began having bilateral knee pain in 1994 or 1995, and that this was first treated with pain medication. He reported at that time he had been told by his physicians that he had to have them replaced, but that he was too young. He had the right hip replaced in 2005, and the left hip replaced in 2007. The October 2012 VA knees examiner noted a single treatment for patellar pain in June 1986, with no other service record finding of knee impairment. At the October 2012 examination, the Veteran denied current problems with his knees, reporting that his knees started to hurt in 1988, but that it turned out this was due to his hips, and he did not have current knee pain. However, x-rays of the knees showed mild to moderate degenerative changes bilaterally, and the examiner diagnosed the same. The VA examiner in 2012 provided less adequate evaluations to support the opinions against a causal link to service for the Veteran's knee disorders that was provided by the July 2010 examiner. Additionally, the June 2013 VA examiner's analysis reveals that that examiner did not base his conclusions on a fair consideration of the Veteran's self-reported history (as discussed in the body of the Board's decision, hereinabove, granting service connection for the Veteran's hip disorders). However, the Veteran has also provided inconsistent narratives as to onset of his knee conditions. Because the Board has now service connected the Veteran's bilateral hip disorders, questions arise whether the Veteran's knee disorders may be service connected as secondary to the hip disorders. Remand is thus in order including for examination to address questions of secondary service connection. See 38 C.F.R. § 3.310. The Veteran explicitly raised the secondary issue in at his October 2012 VA examination, when he asserted that while he had difficulties with his hips and low back he also had symptomatic knees, but that his knee symptoms resolved with treatment or improvement of his hips. Back Disorder The Board in its August 2012 remand noted the Veteran's self-reported history of ongoing back pain dating from physical training with a heavy pack as an infantryman in service, with chiropractic care following service. The Veteran had contended that in the infantry he wore a pack of at least 75 pounds at least 75 percent of the time. He considered this to have contributed to his bilateral hip disability as well as his back. Service treatment records reflect a single record of complaint of back difficulty in August 1985. Upon VA examination in June 2013, the Veteran asserted that on active duty in the 1980s his back hurt, with gradual onset of pain due to heavy lifting as part of his service duties. He denied a history of pre-service injury or symptoms of back disability. He added that his completion of three Marine Corps Combat Readiness Evaluation System (MCCRES) tests, which consisted of running 24 miles in under eight hours and carrying combat loads of 70 pounds or more, worsened his back. He also alleged that on combat maneuvers near Bridgeport, California, he fell off a cliff striking his head and back on a slope, falling into a creek and awakening two days later, and subsequently being treated for head lacerations and soft tissue injuries. Service treatment records support the occurrence of this accident. At the June 2013 examination, the Veteran reported that even though he did not recall receiving a diagnosis or treatment for his back during service, he did have back pain which continued during service. He added that his back problems gradually worsened for four to five years following service separation, he received treatment by a private physician and by a chiropractor, and was he told that he had arthritis. Treatment included various medications. He also reported having been treated over the years three or four times with physical therapy, as well as with therapeutic injections, though without improvement in his symptoms. He complained of current constant, low-level back pain. The June 2013 VA examiner diagnosed degenerative joint disease of the lumbosacral spine and degenerative disc disease of the thoracic spine. The examiner noted that the Veteran had worked as a police officer for 17 years, that he stopped working due to disability of his bilateral hips, with bilateral hip replacements, and that received disability benefits from his police department. The examiner opined that it was not at least as likely as not that the Veteran's low back disorder was causally related to service, because the weight of the evidence favored causation by the Veteran's work as a police officer, as well as association with obesity and age. The Board has granted service connection for the Veteran's right hip disorder, including based on his self-reported history of pain proximate to service. The Veteran may well have had pain in the low back/hip region due to his right hip, with pain manifested in the hip and the low back. Thus, the Veteran's account of pain onset in the low back in service may potentially be an unreliable indication of date of onset on any degenerative disk disease or degenerative joint disease or other disorder of the low back. Such questions are best resolved by VA examination. A VA examination is thus in order to address the question of a low back disorder as secondary to the Veteran's service-connected bilateral hip disorders. See 38 C.F.R. § 3.310. The Board additionally observes that VA examiners in 2012 and 2013 did not adequately answer all the questions the Board asked and, therefore, are non-compliant with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding the Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The remands required that the examiners consider the Veteran's statements as evidence of prior disability (not relying only on the presence or absence of past examination or treatment record evidence), and required that the examiners address whether any portion of current disability is likely to be attributed to service, rather than the examiners merely stating that the greater part of the current disability is attributable to post-service police work activities, age, and body habitus (overweight/obesity), or not affording appropriate consideration to self-reported history of disability. In light of the remand, updated VA treatment records should be obtained. Accordingly, these issues are REMANDED for the following actions: 1. Obtain VA outpatient treatment records dated since March 2012. 2. After all records are obtained to the extent available, the Veteran must be afforded an appropriate VA examination to determine whether any degree of the Veteran's current spine and bilateral knee disorders are related to his military service or to his service-connected bilateral hip disorders, status post total hip replacements. The examination must be conducted by an examiner other than one of the examiners who has previously examined the Veteran for these claimed disabilities. Any indicated diagnostic tests and studies must be accomplished. The VBMS claims file must be made available to the examiner and reviewed. The examiner must be directed to specifically address the Veteran's lay description of in-service duties and his description of service and post-service symptoms and treatment. The examiner must recognize that not all past treatment records could be obtained due to policies within the medical profession of destroying records after an interval of years, and thus the Veteran's own lay statements may be accepted for accounts of past medical treatment or medical findings, when records of such treatment are no longer available. The examiner must not merely limit the rationale to review of the documented service and post-service treatment records. The examiner most also not assume that the Veteran's work as an airport police officer following service involved moderate to heavy physical activity, as prior examiners have done. Rather, the examiner should ask the Veteran to detail the nature of this post-service work. The examiner should then record this information on the examination report, and should base any assessment of post-service work on this self-report. As indicated in the prior remand, separately for each identified disorder of the back and of the right and left knees, the examiner must reconcile whether any degree of the disorder was caused by the physical duties of the Veteran's military service, to include long marches and runs carrying 75-pound packs of equipment as a Marines infantryman from September 1981 through September 1989; or whether any degree of the disorder was caused or aggravated (permanently increased in severity) by the Veteran's service-connected bilateral hip disorders. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, the evidence of record, and with consideration of the Veteran's statements as to his symptoms in service and since service discharge, the examiner must provide the above-requested opinions, separately addressing whether any degree of the Veteran's low back, right knee, and left knee disability is related to his military service, or was caused or aggravated (permanently increased in severity) by service-connected right or left hip disorders. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the remanded claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs