Citation Nr: 1803847	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-12 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for a right hip disability, to include as secondary to service-connected residuals of a right knee injury and a right ankle injury.

2.  Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, and to include as secondary to service-connected residuals of a right knee injury and a right ankle injury.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Ryan Frank, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Navy from December 1974 to November 1977.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  In the April 2011 rating decision, in pertinent part, the RO denied service connection for PTSD, depression, and a right hip condition.

The Veteran's claims for service connection for PTSD and depression have been recharacterized as a psychiatric disability to include PTSD and major depressive disorder.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  

The issue of entitlement to service connection for a psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The probative evidence of record is at least in equipoise as to whether the Veteran's right hip disability is etiologically related to his service-connected residuals of a right knee injury and a right ankle injury.


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for a right hip disability have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310.  In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against the claim that the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

During a February 2001 private treatment appointment, the Veteran reported right hip pain.  An April 2003 private treatment record notes that the treatment provider found the etiology of this right hip pain to be unclear.  The February 2001 and April 2003 private treatment records also note Paget's disease involving the left femur.

The Veteran was afforded a VA examination in September 2009.  The examiner noted the Veteran's past diagnosis of Paget's disease of the left hip.  The Veteran reported right hip pain.  The examiner diagnosed left hip Paget's disease, right hip bursitis, and right hip flexor tendonitis, but expressed no opinion as to the etiology of any right hip disability.  

The Veteran was afforded an additional VA examination in October 2010.  The examiner diagnosed Paget's disease of the pelvis, without specifying a side.  The examiner opined that the Veteran's right hip pain was actually sacroiliac pain and that it was a symptom of his Paget's disease of the pelvis.  The examiner did not discuss the past diagnoses of right hip bursitis or right hip flexor tendonitis.  

During an October 2012 VA treatment appointment, the Veteran reported pain radiating from his right knee to his right hip.  The treatment provider characterized the Veteran's gait as "R hand cane w/wide base and RLE circumduction, and R knee minimally flexed throughout gait phases."  The treatment provider opined that it "appears that R knee and hip pains contributed by [the Veteran's] altered R circumduction gait pattern."  During a January 2013 VA treatment appointment, the same treatment provider again opined that the Veteran's "R hip region pain also contributed by altered gait mechanics."

In March 2014, the Veteran underwent a diagnostic arthroscopy of the right hip with acetabuloplasty, femoroplasty, and resection of a torn labrum by a private provider.  The provider's diagnosis was combined femoroacetabular impingement of the right hip and a labral tear of the right hip.  

During an August 2017 private treatment appointment, the treatment provider diagnosed a subchondral cyst of the right hip.  The treatment provider noted that the Veteran had had an antalgic gait for "years" and opined that this was a "possible contribution to his symptoms."

The Board notes that the August 2017 medical record employs speculative language to discuss the possibility of a relationship between an antalgic gait and the Veteran's right hip symptoms.  Speculative language such as this does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship.  See Warren v. Brown, 6 Vet. App. 4 (1993); Utendahl v. Derwinski, 1 Vet. App. 530 (1991); Stegman v. Derwinski, 3 Vet. App. 228 (1992); Obert v. Brown, 5 Vet. App. 30 (1993).  The August 2017 record is not probative evidence.  

The Veteran's treatment records note diagnoses of multiple right hip disorders and an opinion that an antalgic gait was a contributory factor.  The Veteran is service connected for the residuals of a right knee injury and a right ankle injury.  Of the two VA examiners, one expressed no opinion as to etiology and the other found that the Veteran had no right hip disabilities at all and opined that any reported pain was a symptom of Paget's disease.  The VA examiner expressing this opinion did not explain how Paget's disease of the left hip was responsible for the Veteran's reported right hip pain and did not discuss the right hip diagnoses in the Veteran's treatment records.  In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's right hip disability was caused by an antalgic gait due to his service-connected residuals of a right knee injury and a right ankle injury.  Accordingly, the Board finds that granting service connection for a right hip disability as secondary to the Veteran's service-connected residuals of a right knee injury and a right ankle injury is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case.  38 C.F.R. § 3.310.  


ORDER

Service connection for a right hip disability is granted.  


REMAND

The Veteran was most recently afforded a VA psychiatric examination in November 2010.  The examiner focused entirely on the issue of PTSD and found that the Veteran did not meet the criteria for that diagnosis.  The examiner also noted a past diagnosis of a depressive disorder but admitted that this "was not fully evaluated" in the examination.  The Veteran ascribes his depression to pain and sleep disturbance caused by his service-connected physical disabilities.  A remand for an addendum opinion is therefore warranted.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination with an appropriate clinician for his psychiatric disability.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

The examiner must provide opinions as to the following:

a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disability began during active service or is related to an incident of service.

b. Whether it is at least as likely as not that the Veteran's psychiatric disability is proximately due to or the result of his service-connected right ankle, right knee, or right hip disabilities; 

c.  Whether it is at least as likely as not that the Veteran's psychiatric disability was aggravated beyond its natural progression by his service-connected right ankle, right knee, or right hip disabilities.

The rationale for any opinion expressed should be provided.  If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible.  

2.  Readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.  

The Veteran 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. §§ 5109B, 7112 (2012).


______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs