Citation Nr: 18148671 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-11 376 DATE: November 8, 2018 ORDER Entitlement to service connection for a back disability as secondary to service-connected right knee disability is granted. Entitlement to service connection for a right hip disability as secondary to service-connected right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability is remanded. Entitlement to service connection for a left hip disability as secondary to service-connected right knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for numbness and weakness of the upper extremities is remanded. Entitlement to service connection for numbness and weakness of the lower extremities is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent prior to December 17, 2012, and in excess of 30 percent from February 1, 2014, for a right knee disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s back disability has been aggravated by his service-connected right knee disability. 2. The Veteran’s right hip disability has been aggravated by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability as secondary to service-connected right knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right hip disability as secondary to service-connected right knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1975 to December 1982 and from December 1983 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. Service Connection 1. Entitlement to service connection for a back disability as secondary to service-connected right knee disability is granted. 2. Entitlement to service connection for a right hip disability as secondary to service-connected right knee disability is granted. Service connection may also be established on a secondary basis for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran seeks secondary service connection for his back and right hip disabilities due to his right knee disability. He maintains that his altered gait pattern has caused his back and right hip disabilities. See April 2012 Veteran Statement and February 2017 Board Hearing Transcript at 13. As the below discussion is favorable and no other theories of entitlement have been proffered (see Board Hearing Transcript at 13), only secondary service connection based on aggravation will be addressed. The Veteran has current diagnoses of myofascial changes in the lumbar region, degenerative changes of the lumbar spine, central spinal stenosis, lumbar root compression, lumbar radiculopathy, right hip osteoarthritis, and status post total right hip arthoplasty. See December 2011, December 2012, July 2016, December 2016, and February 2017 VA treatment records. Further, the Veteran is service-connected for a right knee disability. Thus, elements one and two of secondary service connection for both disabilities are met. The crux of the secondary service connection claim therefore rests on element three, whether there is a relationship between the current back and right hip diagnoses and the Veteran’s service-connected right knee disability. To this end, the only competent opinion of record, that of the February 2017 VA orthopedic physician Dr. R.A.F., substantiates this relationship for both back and right hip disabilities (the January 2012 VA opinion diagnosed only a compression fracture in his back and did not address secondary service connection). Specifically, Dr. R.A.F. notes that the Veteran has a complex diagnosis and that he never ceased having pain in his right knee since the initial injury, underwent a total right knee replacement, and is considerably incapacitated by repeated buckling of his right knee. As such, he stated that there is no question that the Veteran’s right knee has exaggerated his right hip and back symptoms, although additional diagnostic testing is needed to determine any further changes to his spinal stenosis and lumbar root compression. Albeit quite brief, the Board finds that this opinion tends to demonstrate that the Veteran’s back and right hip degeneration has been aggravated by his service-connected right knee disability as the VA orthopedic doctor provided an understandable and rational basis for his opinion which relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Accordingly, secondary service connection for the Veteran’s back and right hip disabilities is warranted. REASONS FOR REMAND 3. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability is remanded. 4. Entitlement to service connection for a left hip disability as secondary to service-connected right knee disability is remanded. The Veteran seeks service connection for his left knee and left hip disabilities as secondary to his right knee disability. Specifically, he maintains that the altered gait pattern due to his right knee disability has caused his left knee and left hip disabilities. See April 2012 Veteran Statement and February 2017 Board Hearing Transcript at 13. He has current diagnoses of left knee and left hip osteoarthritis and related these conditions to his service-connected right knee disability, triggering VA’s duty to obtain an examination and medical nexus opinions on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, during his February 2017 VA treatment cited above, it was noted that further diagnostic testing and evaluation of his disabilities should be performed, however there are no treatment records associated with the claims file after this date. Thus, any outstanding records should be secured on remand. 5. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss is due to in-service noise exposure related to his military occupational specialty (MOS) as a motor transport operator. Specifically, he maintains that his hearing loss is due to driving military vehicles with no hearing protection and has resulted in loss of his range of hearing since that time. Moreover, during the February 2017 Board hearing, the Veteran’s spouse testified that his hearing had worsened since his last VA examination in January 2012. See April 2012 Veteran Statement and February 2017 Board Hearing Transcript at 16. The Board notes an October 2015 VA treatment record noted a speech recognition score of 92 percent in the Veteran’s left ear, but did not indicate Maryland CNC testing was used, therefore the results are inadequate for VA rating purposes. Thus, an updated VA audiological examination is warranted on remand. 6. Entitlement to service connection for a neck disability is remanded. 7. Entitlement to service connection for numbness and weakness of the upper extremities is remanded. 8. Entitlement to service connection for numbness and weakness of the lower extremities is remanded. 9. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, is remanded. The appellant filed a timely Notice of Disagreement (NOD) with the September 2013 rating decision that denied service connection for a neck disability, numbness and weakness of the upper and lower extremities, and PTSD. See November 2013 NOD. To date, a Statement of the Case (SOC) has not been issued on these matters, and must be provided on remand. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 10. Entitlement to a rating in excess of 10 percent prior to December 17, 2012, and in excess of 30 percent from February 1, 2014, for a right knee disability, is remanded. The Veteran testified that his right knee disability “will go out from under him” two to three times a day; that he uses a cane for stability to prevent falls; has continuous right knee pain which increased with weather changes; swelling; clicking; difficulty with stairs; that he cannot run anymore or go out in the yard and play with his children or grandchildren; and he cannot stand, sit, or lie down for long periods of time due to knee or hip pain. Thus, the evidence suggests a worsening of his right knee disability. Additionally, the Veteran’s September 2015 VA examination is not compliant with the recent holding in Sharp as the VA examiner did not adequately address functional loss in terms of additional limitation of motion with repetitive use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, an updated VA examination is warranted on remand. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 11. Entitlement to a TDIU is remanded. The Veteran does not currently meet the schedular criteria for a TDIU. However, the agency of original jurisdiction must implement the above-detailed award of benefits for his back and right hip disabilities on remand, as this will impact the overall combined rating for his service-connected disabilities. Additionally, the TDIU claim is inextricably intertwined with his left knee, left hip, and neck claims, thus action on the TDIU claim is deferred pending these developments. Any outstanding VA treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including VA orthopedic testing results and evaluations since February 2017. 2. Then schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his left knee and left hip disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The examiner should elicit a complete history from the Veteran. All indicated tests and studies should be conducted on the left hip, and all findings reported in detail. No examination is necessary for the left knee, unless the examiner determines otherwise. (a) Please opine as to whether it is at least likely as not (50 percent or greater probability) that diagnosed left knee osteoarthritis: (i) is proximately due to his service-connected right knee disability; or (ii) has been aggravated (worsened) by his service-connected right knee disability. (b) For each diagnosed left hip disability, please also opine on whether it is at least likely as not (50 percent probability or greater) such disability: (i) is proximately due to his service-connected right knee disability; (ii) is proximately due to his left knee disability (if service-connected as a result of question (a)); (iii) has been aggravated (worsened beyond natural progression) by his service-connected right knee disability; or (iv) has been aggravated (worsened beyond natural progression) by his left knee disability (if service-connected as a result of question (a)). In addressing these questions, the examiner should acknowledge and comment on the Veteran’s reports that his altered gait pattern due to his right knee disability has caused his left knee and left hip problems and that he has simultaneous pain in both his knees and hips. See April 2012 Veteran Statement and February 2017 Board Hearing Transcript at 9,13. The examiner should note that two separate opinions are required for proximate causation and aggravation, and a rationale must be provided for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should provide a rationale for that conclusion. 3. Then schedule the Veteran for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss. The claims file should be reviewed and the Veteran’s hearing tested. Thereafter, if the Veteran has a hearing loss disability pursuant to VA regulations, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss had its onset in or is otherwise related to his service, to include as a result of conceded acoustic trauma sustained therein. Please provide a complete rationale, do not rely solely on the absence of hearing loss at service separation, discuss the possibility of delayed-onset hearing loss and note that the Veteran is service-connected for tinnitus. 4. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability. 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. (a) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-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. (b) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s right knee disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale must be given for all opinions expressed. 5. Implement the service connection award for the Veteran’s back and right hip disabilities. 6. Separately, issue a SOC addressing the issues of entitlement to service connection for neck, numbness and weakness of upper and lower extremities, and PTSD claims. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel