Citation Nr: 1340504	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  08-12 725	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a disability characterized by left hip pain (claimed as bilateral hip condition), including as secondary to degenerative disc disease (DDD) of the thoracolumbar spine status-post fracture S-1 with spinal stenosis.

2.  Entitlement to service connection for a disability characterized by right hip pain (claimed as bilateral hip condition), including as secondary to DDD of the thoracolumbar spine status-post fracture S-1 with spinal stenosis.

3.  Entitlement to service connection for a disability characterized by left ankle/foot pain (claimed as bilateral ankle condition).

4.  Entitlement to service connection for a disability characterized by right ankle/foot pain (claimed as bilateral ankle condition).




REPRESENTATION

Veteran represented by:	Brooks S. McDaniel, Agent


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active duty from October 1973 to July 1989.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2007 rating decision that was issued by the Regional Office (RO) in Roanoke, Virginia.

The Board notes that the Veteran requested a hearing before a member of the Board.  However, the Veteran failed to appear for his hearing.  Therefore, his request is deemed withdrawn.  38 C.F.R. § 20.704(d).

In November 2010 and March 2012, the Board remanded the issues of service connection for a left and right hip disorder, a left and right ankle disorder, and residuals of a fracture of the right little finger, for further development.  With regard to the claim for service connection for a bilateral ankle[foot] disorder, no further action to ensure compliance with the Board's remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998).  

In a rating decision dated in October 2013, the RO granted service connection for right little finger interphalangeal joint fracture.  As such, this issue is no longer before the Board.

The issues of service connection for a disability characterized by left ankle/foot pain (claimed as bilateral ankle condition); and service connection for a disability characterized by right ankle/foot pain (claimed as bilateral ankle condition), are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Right ankle arthritis had its onset in service.

2.  Left ankle arthritis had its onset in service.


CONCLUSIONS OF LAW

1.  Left hip degenerative joint disease is related to active duty service.  38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

2.  Right hip degenerative joint disease is related to active duty service.  38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In April 1976 the Veteran was involved in a motor vehicle accident, during which he sustained a compressed vertebra fracture in the L-1 area, and for which he was repeatedly profiled/restricted to light duty for months on end; including during his last two years of service.  See, e.g., May 1989 Medical Board records.  In 1984 the Veteran was treated for right hip pain after a battalion run.  By 1988 he was described as "obese" and deemed unable to participate in physical training or perform the duties required by his military occupational specialty; and placed on weight control.  See, e.g., December 1988 service treatment records.  In July 1989 he separated from active duty service.  There is no allegation or evidence of the Veteran's having been overweight/obese prior to active duty service.

On VA examination in April 2011 the diagnosis, confirmed by x-ray, was mild degenerative joint disease of both hips.  In the ensuing opinion the examiner noted that the Veteran was obese, and averred that obesity is a significant contributing factor to degeneration of weight bearing joints.  Because the Veteran's obesity clearly began during active duty service, and as competent medical evidence shows that his bilateral hip degenerative disease is caused, at least in part secondary to his obesity, service connection for a right and left hip disability is warranted.  


ORDER

Service connection for left knee arthritis is granted.

Service connection for right knee arthritis is granted.


REMAND

As regards the Veteran's claim for service connection for a bilateral ankle condition, service treatment records relate complaints of bilateral heel pain in 1981 and 1984, and in September 1981 a "provisional" diagnosis of right ankle tendonitis was made; however, x-rays in 1981 were normal.

In a March 2009 VA examination report, the examiner indicated that the Veteran had early calcaneal spurring.  In August 2012 the Veteran was accorded a VA examination.  In the ensuing report, however, the examiner remarked that the Veteran was treated for heel spurs during service.  Unfortunately, it is unclear whether the examiner was intending to make a diagnosis, retrospectively, of heel spurs during service.  The evidence is therefore inadequate for a decision in this matter.  Remand for a new VA examination is therefore needed.  38 C.F.R. § 3.326(a).  On remand VA treatment records dated after July 2012 should be associated with the claims file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Associate, with the claims file, either physically or electronically, all of the Veteran's VA medical records dated after July 2012.  Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran.  

2.  Notify the Veteran that he may submit lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge regarding his ankle/foot complaints during and/or since service.  He should be provided an appropriate amount of time to submit this lay evidence.

3.  After completion of steps 1 and 2, schedule the Veteran for an appropriate VA examination regarding his claim of service connection for a bilateral ankle/foot disorder.  The claims file must be made available to, and reviewed by, the examiner.  All indicated tests should be done, and all right and left ankle and foot disabilities found to be present should be identified.  

Thereafter, the examiner must opine as to whether it is at least as likely as not that a current ankle/foot disorder is related to or had its onset during service, to include the Veteran's in-service weight gain.

A complete rationale for all opinions must be set forth in the examination report.

4.  Then, readjudicate the appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative, and then return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity 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).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs