Citation Nr: 1751062 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-21 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable rating for right calcaneal stress fracture (right heel disability). 2. Entitlement to an initial rating in excess of 10 percent for left hip stress fracture. 3. Entitlement to service connection for a right tibial stress fracture, to include secondary to service-connected right heel disability and left hip stress fracture. 4. Entitlement to service connection for a right knee condition, to include secondary to service-connected right heel disability and left hip stress fracture. 5. Entitlement to service connection for a right hip condition, to include secondary to service-connected right heel disability and left hip stress fracture. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2007 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The RO in Detroit, Michigan certified the appeal to the Board. The Veteran's claims file remains in the jurisdiction of the Detroit RO. In July 2016, the Board remanded the current issues for further evidentiary development. With respect to the claims for entitlement to an initial compensable rating for right heel disability and entitlement to service connection for right hip condition, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The issues of entitlement to an initial rating in excess of 10 percent for left hip stress fracture, entitlement to service connection right knee condition, entitlement to service connection for right tibial stress fracture, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the period under review, the Veteran's right heel disability has been productive of moderate symptoms such as intermittent pain, moderate flare-ups, and functional impairment that precludes prolonged standing and ambulation due to pain. 2. At no time during the pendency of the appeal has the Veteran had a current diagnosis of a right hip disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of the claim. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for right heel disability are met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. § 4.71(a), Diagnostic Code 5284 (2017). 2. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C.S. §§ 1101, 1110, 5103A, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Heel Disability The Veteran is seeking a higher rating for his service-connected calcaneal stress fracture. Currently, the Veteran is in receipt of a noncompensable disabling rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.S. § 1155 (LexisNexis 2017); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C.S. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare ups, and those factors not contemplated in the relevant rating criteria. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Veteran is currently rated under Diagnostic Code 5284, which indicates that foot injuries warrant a 10 percent rating for a moderate foot injury, a 20 percent rating for a moderately severe foot injury, a 30 percent rating for a severe foot injury, and a 40 percent rating with actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board notes that the terms "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017). In August 2008, the Veteran was afforded a VA examination. During the examination the Veteran rated his pain as a 1 or 2 out of 10, 10 being the most painful. The Veteran reported experiencing flare-ups every two or three weeks, usually lasting hours. He listed factors of prolonged walking, sitting or standing to precipitate flare-ups. Ultimately, the examiner evaluated the Veteran's flare-ups as "moderate." September 2009 VA treatment records documented the Veteran's reports of hip and heel pain. The Veteran reported taking aspirin to alleviate the pain. He indicated that he sometimes takes 4 to 6 tablets "when the pain is bad" and takes "Tylenol extra strength, two at a time, sometimes takes up to six a day." In April 2011, the Veteran was afforded a second VA examination for his right heel disability. The Veteran reported experiencing flare-ups weekly, lasting between one and two days. The examiner evaluated the Veteran's flare-ups as "moderate." According to the Veteran, his disability limits his ability to obtain employment because he is unable to stand when he has pain in his right heel. In addition, the examiner evaluated how his disability affects his ability complete daily activities. The examiner noted that the Veteran has moderate difficulty to complete chores, shopping, and recreation activities; severe difficulty to exercise; total limitation to engage in sports, mild difficulty to travel, and no limitation to eat and dress. Most recently, the Veteran was afforded a VA examination in September 2016. During the examination the Veteran rated his pain as a 1 out of 10, 10 being the most painful. He contended that he should be awarded a higher rating because "he had to get orthotics inserts for his heel injury." The Veteran did not report experiencing pain during the examination. Ultimately, the examiner opined that the right heel disability is "stable." The Board finds that the evidence more nearly approximates a moderate right heel disability such that an increased initial 10 percent rating is warranted. Specifically, the Veteran is shown to have symptoms of intermittent pain with moderate flare-ups. In general, the Veteran's disability results in functional impairment that impacts his ability to complete chores, recreational activities, exercise, and traveling. Although the Veteran did not report symptoms of pain during the September 2016 examination, the Board finds that the evidence of record supports a finding that the Veteran's residuals of the right heel rise to the level of moderate when considering frequency and severity of flare-ups. See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 204-07. The Board has considered whether a rating higher than 10 percent is warranted, but concludes that it is not. A higher rating is not warranted under Diagnostic Code 5284 because the evidence does not show that the Veteran's right heel disability has been productive of more than moderate symptoms or has resulted in actual loss of use of the right foot. Throughout the period on appeal, the Veteran's disability has been productive of intermittent pain and impaired ability to engage in physical activity without pain. As there is no evidence of significant worsening of the Veteran's condition since his last examination, the Board finds these reports highly probative in assessing the effect that his right heel disability has had on his ability to function under the ordinary conditions of daily life. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). Thus, the Board finds that the Veteran's disability picture more closely approximates the criteria for a 10 percent rating under Diagnostic Code 5284. II. Right Hip Condition Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.S. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first 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). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the Veteran seeks service connection for a right hip condition. In October 2009, the Veteran asserted that his "right hip pain" was incurred during active duty service. While post-service VA records document the Veteran's complaints of right hip pain, medical records do not reveal a medical diagnosis related to the Veteran's right hip. Although early VA examinations focused on the Veteran's service-connected left hip disability, the examination reports generally referred to the condition of the Veteran's right hip. The Veteran was afforded a VA examination in August 2008, addressing his complaints of pain in both hips. The VA examination report recorded an impression of normal hips, bilaterally. October 2008 and September 2009 VA treatment records documented a diagnosis of "possible bursitis." But, the condition was not later verified. An April 2011 VA examination report indicated a diagnosis of "unremarkable radiographs of the right hip." Following the Board's July 2016 remand, the Veteran was afforded a VA examination specifically for his right hip condition in September 2016. The VA examiner considered the Veteran's reports of an in-service injury to his right hip. X-ray findings did not support a diagnosable right hip disability. Ultimately, the examiner opined that the Veteran does not have a current diagnosis associated with his right hip. The Board acknowledges the Veteran's reports of right hip pain. However, an underlying disability has not been diagnosed, and pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While the Veteran is competent to state that he has right hip pain, as a lay person, he is not competent to provide evidence as to more complex medical questions. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Furthermore, as the Veteran has not indicated that his right hip conditions worsened since the September 2016 VA examination, a remand to ascertain whether he now has a right hip disability is also not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In short, the objective medical evidence of record does not establish a current right hip disability for VA purposes. In the absence of a current disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for a right hip condition is denied. Upon consideration of all of the evidence of record, the Board finds, for the reasons explained above, that the opinion of the VA examiner is the most probative evidence of record and carries the most probative weight on the question of whether the Veteran's right hip pain is related to his service. As the preponderance of the evidence weighs against the claim, service connection for a disability of the right hip (separate and distinct from a service-connected lumbar spine disability) is denied. See 38 U.S.C.S. § 5107(b) (LexisNexis 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER An initial rating of 10 percent, but no higher, for right calcaneal stress fracture is granted. Service connection for a right hip disability is denied. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's remaining claims. I. VA Examinations and Opinions A. Left Hip Stress Fracture The Veteran was afforded VA examinations in connection with his claim in August 2008, April 2011, and September 2016. However, due to inadequacies in those examinations and the accompanying medical opinions, an additional examination and opinion are needed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The August 2008, April 2011, and September 2016 examinations for the left hip stress fracture did not include the necessary findings regarding active motion, passive motion, weight-bearing, and nonweight-bearing testing of the left hip stress fracture. See Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, a new examination addressing entitlement to an increased evaluation for the left hip stress fracture is needed. B. Right Knee Condition The Veteran claims entitlement to service connection for a right knee disability. In September 2016, the Veteran was afforded a VA knee examination. There, the examiner concluded that the "Veteran does not have a current diagnosis associated with any claimed condition listed above." However, the September 2016 examination report reveals an impression of "[d]ifferential diagnostic considerations include but are not limited to sclerosing NOF, previous trauma, chronic osteomyelitis, adamantinoma, or possibly osteofibrous dysplasia . . . Recommend MRI for further evaluation." To resolve considerable discrepancy of the Veteran's current diagnosis during the examination, further development is necessary and the Veteran should be afforded a new VA examination. Barr, 21 Vet. App. at 311. C. Right Tibial Stress Fracture The Veteran claims entitlement to service connection for a right tibial stress fracture, or in the alternative, entitlement to service connection for right tibial stress fracture secondary to left hip stress fracture and right heel disability. In September 2016, the Veteran was afforded a VA examination. There, the examiner ultimately noted that the Veteran does not currently have or has had "recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fracture, chronic exertion compartmental syndrome or any other tibial and or fibular impairment." Contrary to the September 2016's statement, the April 2011 VA examiner verified a diagnosis of right tibial stress fracture. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The September 2016 VA examiner's opinion is inadequate because he did not consider previous diagnoses documented during the claim period. Id. As such, the Veteran should be afforded a new VA examination to identify the Veteran's right tibial stress fracture by medical diagnosis, determine its etiology, and evaluate its severity. Id. II. Intertwined Issues As the Veteran's pending increased rating claims for left hip stress fracture may affect the outcome of the claim of entitlement to a TDIU, a final decision on that issue would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, that claim is also being remanded. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional outstanding private treatment records that he wishes VA to obtain, and advise him that he may submit any additional evidence or information he might have to support his claims, to include lay statements. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. 2. Update the file with any VA treatment records relevant to the Veteran's claim dated from October 2007 to the present. If any requested records are unavailable, the Veteran should be notified of such. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA hip examination to determine the current level of severity of his service-connected left hip stress fracture. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should record the results of range of motion testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. Additionally, range of motion should be tested for the opposite undamaged joint, if applicable. If the examiner is unable to conduct the required testing or concludes that any of the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner should provide a retrospective medical opinion on the Veteran's range of motion of the left hip stress fracture throughout the time period of the claim (since October 2007). That is, with consideration of the evidence of record and his history, comment on the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing. If this opinion cannot be provided, the examiner should clearly explain why that is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and state why that is so. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee condition. If necessary, schedule the Veteran for MRI examination of the right knee. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Identity the Veteran's right knee condition by medical diagnosis. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. (b) State whether it is at least as likely as not (50 percent probability or more) that the right knee condition began in service or is otherwise related to service. (c) If not directly related to service on the basis of question (b), is it at least as likely as not that the right knee condition was caused by a service-connected disability, to include the Veteran's service-connected left hip stress fracture or right heel disability? Please explain why or why not. (d) If not caused by a service-connected disability, is it at least as likely as not that the right knee condition has been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the Veteran's service-connected left hip stress fracture or right heel disability? Please explain why or why not. (e) If the examiner finds that the right knee condition has been permanently worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the right knee condition that is attributed to the service-connected disability (e.g., change in range of motion, etc.). A complete rationale for the opinion rendered must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his right tibial stress fracture. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Identity the Veteran's right tibial condition by medical diagnosis. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. (b) State whether it is at least as likely as not (50 percent probability or more) that the right tibial condition began in service or is otherwise related to service. (c) If not directly related to service on the basis of question (b), is it at least as likely as not that the right tibial condition was caused by a service-connected disability, to include the Veteran's service-connected left hip stress fracture or right heel disability? Please explain why or why not. (d) If not caused by a service-connected disability, is it at least as likely as not that the right tibial condition has been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the Veteran's service-connected left hip stress fracture or right heel disability? Please explain why or why not. (e) If the examiner finds that the right tibial condition has been permanently worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the right tibial condition that is attributed to the service-connected disability. A complete rationale for the opinion rendered must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 6. After completing the requested actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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.S. §§ 5109B, 7112 (LexisNexis 2017). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs