Citation Nr: 1340066	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  10-10 641	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a right hip disorder, including as secondary to service-connected right knee and right ankle disabilities.

2.  Entitlement to service connection for a left hip disorder, including as secondary to service-connected right knee and right ankle disabilities.

3.  Entitlement to service connection for a left knee disorder, including as secondary to service-connected right knee and right ankle disabilities.

4.  Entitlement to service connection for a left ankle disorder, including as secondary to service-connected right knee and right ankle disabilities.

5.  Entitlement to an increased rating for right knee chondromalacia with patellar realignment, rated as arthritis, and evaluated as 20 percent disabling prior to July 1, 2012 (excluding a period of temporary total 100 percent rating from January 29, 2004 to June 1, 2004) and in excess of 10 percent disabling from July 1, 2012.

6.  Entitlement to an increased rating for a right knee subluxation, evaluated as 20 percent disabling as of June 19, 2012.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel


INTRODUCTION

The Veteran served on active duty from August 1997 to February 2003. 

These matters come before the Board of Veterans' Appeals (Board) from April 2004 and July 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In a July 2012 rating decision, the RO granted a separate 20 percent rating for right knee subluxation, effective June 19, 2012 and decreased the disability rating for right knee chondromalacia from 20 to 10 percent, effective July 1, 2012.

In March 2013, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development.  (The Board mischaracterized the rating that had been assigned for right knee subluxation as a 10 percent rating.  As noted above, a 20 percent rating had been assigned by the RO.)

(The issues of entitlement to service connection for left hip, left knee, and left ankle disabilities, each claimed as secondary to service-connected right knee and right ankle disabilities, and entitlement to higher ratings for right knee disabilities are addressed in the remand that follows the decision below.)


FINDING OF FACT

The Veteran has right hip greater trochanteric bursitis that is as likely as not caused by his service-connected right knee disabilities.


CONCLUSION OF LAW

The Veteran likely has right hip greater trochanteric bursitis that has been caused by his service-connected right knee disabilities.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he has a right hip disability secondary to service-connected right knee and right ankle disabilities.

For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the claimed disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310 (2013); see Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

The evidence of record includes a May 2013 VA examination report in which the examining orthopedic surgeon diagnosed mild right hip greater trochanteric bursitis.  The Veteran is also service-connected for right knee chondromalacia with patellar realignment, which is rated as arthritis, and right knee subluxation.  Therefore, the first and second Wallin elements have been satisfied.  

The May 2013 examiner specifically opined that the right bursitis may be as likely as not related to his service-connected right knee disabilities.  In support of the conclusion, the examiner explained that during the standing phase, the Veteran had his knee slightly flexed due to the flexion contracture and thus caused the slight flexion of his right hip, which in turn may aggravate and lead to the right hip trochanteric bursitis.

With resolution of reasonable doubt in the Veteran's favor, the Board concludes that the competent and persuasive evidence of record establishes that the Veteran's current right hip greater trochanteric bursitis is as likely as not caused by his right knee disabilities.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). 


ORDER

Service connection for a right hip greater trochanteric bursitis is granted.


REMAND

The Board previously remanded the case for additional development in March 2013.  The requested development was not completed.  The case is again remanded to ensure compliance with the previous remand.  See Stegall v. West, 11 Vet. App. 268 (1998).

The agency of original jurisdiction (AOJ) obtained and associated with the claims file ongoing records of evaluation and treatment from the Fayetteville VA Medical Center (VAMC) dated from January 2012 to May 2013.  The Veteran was also afforded a VA examination by a physician.  Unfortunately, the examiner's May 2013 report does not contain an explanation regarding the left knee.  The examiner reviewed the claims file, noting that the Veteran was diagnosed with chondromalacia of the bilateral knees at the Fayetteville VAMC in September 2003 and that the Veteran reported left knee symptoms starting around 2004.  Following a physical examination, the diagnosis was left knee chondromalacia of the patella.  The examiner opined that the "left knee disability is due to the chondromalacia patella diagnosis and not as a result of the service-connected right knee disability or the right Achilles tendonitis."  Here, the examiner merely concluded that the Veteran's claimed left knee disability was due to the diagnosis he provided on examination and included no explanation as to why the right knee and right ankle disabilities had not caused or aggravated the left knee chondromalacia.  

In addition, the May 2013 VA examiner diagnosed mild left hip greater trochanteric bursitis and left Achilles tendonitis and opined that these disabilities were less likely than not related to the right knee and right ankle disabilities.  The examiner believed that the left hip and left ankle disabilities "may be more related" to the left knee chondromalacia disability.  Consequently, entitlement to service connection for left hip and left ankle disabilities may be dependent on the outcome of the left knee claim.  As a result, an additional remand is required to obtain a medical opinion with supporting rationale regarding the left knee, left hip, and left ankle disabilities.

Also, the Board notes that the Veteran's service treatment records include a May 1998 complaint of left ankle pain, which was diagnosed as anterior tibial tendonitis, and a November 1998 report of posterior left knee and calf pain after a tripping injury, which was assessed as "status post left posterior popliteal fossa/proximal lateral gastrocnemius."  On remand, the examining physician should carefully review the service treatment records to determine whether any of the claimed disabilities is directly traceable to the Veteran's period of military service.  

Regarding the increased ratings claim, the examiner's May 2013 report and August 2013 addendum were not fully responsive to the April 2013 remand directives and appear to contain some inconsistent findings regarding the right knee.  For example, on examination, right knee active extension was "-20 [degrees.]"  However, at the end of the examination report, the examiner summarized that the Veteran had "pain after full extension, which is -20 [degrees]."  The Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees, and extension limited to 20 degrees would warrant a 30 percent rating.  See 38 C.F.R. §§ 4.71, Plate II; 4.71a, Diagnostic Code 5261.  Also, the report did not address the extent and severity of any recurrent subluxation.  Therefore, the Board finds that the Veteran should be afforded an additional VA examination to determine the extent of his service-connected right knee disabilities.

On remand, the AOJ should also obtain outstanding records of evaluation and treatment pertinent to the left hip, left knee, left ankle, and right knee from the Fayetteville VA Medical Center (VAMC), dated from May 2013 to the present.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Finally, in its April 2013 remand, the Board pointed out that the right knee chondromalacia disability, which had been rated as arthritis, had been rated as 20 percent disabling since February 2003 before being reduced by the July 2012 rating decision.  The AOJ was directed to address the provisions of 38 C.F.R. § 3.344 regarding the stabilization of ratings to determine whether the reduction for the right knee rating was proper.  In reviewing the claims file, including the September 2013 supplemental statement of the case (SSOC), it appears that the AOJ did not take any action to review the rating reduction.  On remand, the AOJ should review the right knee rating reduction with consideration of the applicable regulations.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claims.  The AOJ should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record.

Even if the Veteran does not respond, the AOJ should obtain from the Fayetteville VAMC ongoing records of evaluation and treatment for left hip, left knee, left ankle and right knee disorders dated from May 2013 to the present.

2.  Upon completion of the above, the AOJ should arrange for the Veteran to be scheduled for a VA examination conducted by a physician to determine the nature and likely etiology of his claimed disorders affecting his left hip, left knee, and left ankle, and to determine the current severity of his service-connected right knee disabilities.  The claims folder must be made available to the examiner(s) prior to the examination for review.  All indicated studies should be performed.  The examiner(s) should address the following:

(a)  Identify any current, chronic disorder(s) found on examination of the left hip, left knee, and/or left ankle.  For each disability, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current, chronic disorder of the left hip, left knee, and/or left ankle began in service, is due to any incident in service, or is due to any arthritis that became manifest within one year of separation from military service. 

In providing the requested opinions, the examiner should address May and November 1998 service treatment records that pertain to left ankle and left knee complaints, respectively. 

(b)  The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current chronic disorder of the left hip, left knee, and/or left ankle was caused, or was made worse beyond natural progression, by the Veteran's service-connected right knee and/or right Achilles tendonitis.  

The examiner is also asked to determine whether the Veteran's use of medication to treat his service-connected hypertension has made worse any current, chronic disorder of left hip, left knee, and/or left ankle.  (As noted in the prior remand, VA treatment records in 2010 include reports of severe right knee symptoms and in an April 2010 record swelling of both legs was attributed to hypertension medication.)

The examiner must provide a detailed rationale for his conclusions.  

(c)  The examiner should also determine the extent of the Veteran's service-connected right knee disabilities and identify the severity of any recurrent subluxation and/or lateral instability of the right knee (slight, moderate, or severe); and the active and passive ranges of motion of the right knee in degrees.  The examiner also should comment on the functional limitations caused by the Veteran's service-connected right knee disability to include whether such disability causes weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy.  The examiner must note at what degree in the range of motion that pain is elicited as well as the severity of such pain.  With respect to subjective complaints of pain, the examiner should comment on whether they are supported by objective findings, whether any pain is visibly manifested upon palpation and movement of the knee, and whether there are any other objective manifestations that would demonstrate disuse or functional impairment of the knee due to pain attributable to the service-connected disabilities.  All functional losses experienced by the Veteran should be equated to additional loss of motion (reported in degrees beyond what is shown clinically).  This should be done for both flexion and extension.

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that definite opinions with respect to left hip, left knee, and left ankle disorders can be obtained.)

3.  The AOJ must ensure that the medical examination report(s) and opinions comply with this remand and the questions presented in the request.  If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate.

4.  The AOJ must consider the provisions of 38 C.F.R. § 3.344 with respect to the July 2012 rating reduction for the right knee disability and determine whether the reduction was proper.  After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issues remaining on appeal.  If any benefit sought is not granted, the Veteran and his representative should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board.

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).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs