Citation Nr: 1751718 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-08 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a left hip disability. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to a rating in excess of 30 percent for a right knee total arthroplasty from April 1, 2013 (right knee disorder). 5. Entitlement to an initial rating in excess of 30 percent for headaches. 6. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from January 1979 to January 1983. The Veteran also had over three month of earlier active duty service and over a year of earlier inactive duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). In April 2013, the Board issued a decision that, among other things, granted a 30 percent rating for the Veteran's headaches and remanded for additional development his claims of service connection for left ankle, left hip, and right hip disabilities as well as his claim for a TDIU. The Veteran appealed the Board's April 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2013 order, the Court granted the parties' joint motion for remand vacating the Board's April 2013 decision to the extent that it did not grant an initial rating in excess of 30 percent for headaches and remanding this issue for compliance with the terms of the joint motion. In June 2014, the Board remanded the claim for an initial rating in excess of 30 percent for headaches. In July 2017, the Board obtained a Veterans Health Administration (VHA) opinion in connection with the appeal. The claims for higher ratings for headaches and a right knee disorder as well as for 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. A left ankle disability is due to the Veteran's service-connected right ankle and knee disabilities. 2. A left hip disability is due to the Veteran's service-connected right ankle and knee disabilities. 3. A right hip disability is due to the Veteran's service-connected right ankle and knee disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 2. The criteria for service connection for a left hip disability have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 3. The criteria for service connection for a right hip disability have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that he is entitled to service connection for a left ankle and bilateral hip disabilities because they are caused by a gait disturbance caused by his service-connected right ankle, knee, and/or low back disabilities. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Initially, the Board notes that the Veteran is service-connected for right ankle, knee, and low back disabilities. Moreover, the record shows the Veteran being diagnosed with left ankle sprain with Achilles tendinities and degenerative joint disease as well as bilateral hip bursitis and degenerative joint disease. See VA examinations dated in September 2009 and November 2013. Furthermore, while in September 2009 the VA examiner opined that the Veteran's left ankle and bilateral hip disabilities were not due to his service-connected right ankle, knee, and low back disabilities, in July 2017 the VHA examiner opined that they were due, at least in part, to his service-connected right ankle and knee disabilities. Therefore, the Board finds that the evidence, both positive and negative, as to causation is at least in equipoise. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that secondary service connection for left ankle and bilateral disabilities is warranted. ORDER Service connection for a left ankle disability is granted. Service connection for a left hip disability is granted. Service connection for a right hip disability is granted. REMAND As to the claim for an increased rating for a right knee disorder, the Board finds that another remand is necessary because it is unclear from a review of the April 2017 VA examination report whether the examination included range of motion testing in both active and passive motion, weight-bearing, and non weight-bearing situations. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (holding that VA must consider the range of motion of a joint in both active and passive motion, weight-bearing, and non weight-bearing situations when rating a disability based on lost motion). As such, a new VA examination is necessary to conduct the appropriate range of motion testing. 38 U.S.C.A. § 5103A(d) (West 2014). As to the claim for an initial rating in excess of 30 percent for headaches, given the evidence that has been added to the claims file since the most recent VA examination in August 2014, this issue must also be remanded to provide the Veteran with a new VA examination to ascertain the current severity of his headaches. See 38 U.S.C.A. § 5103A(d) (West 2014); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). The Board also finds that the claim for a TDIU must be remanded because adjudication of this claim is inextricably intertwined with the above rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, these issues are REMANDED for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Obtain and associate with the record any outstanding VA treatment records. 3. Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge of the any right knee and headaches symptoms, to include the impact of the conditions on his ability to work. 4. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his right knee disorder. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for a VA examination to determine the frequency and severity of the Veteran's headache disorder. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. 6. Then, after conducting any further development deemed warranted, adjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) that gives the Veteran notice of all the evidence added to the record since the February 2015 SSOC. The Veteran and his representative should be given an appropriate opportunity for response before returning 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). These claims 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 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs