Citation Nr: 18150534 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-22 253 DATE: November 15, 2018 ORDER Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative arthritis, is granted. REMANDED The issue of entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to an evaluation in excess of 10 percent for residuals, left femur fracture with left hip bursitis, is remanded. FINDING OF FACT It is reasonably shown that the Veteran’s currently diagnosed degenerative arthritis of the lumbar spine began in service and has persisted since that time. CONCLUSION OF LAW The criteria for service connection for a low back disability, diagnosed as degenerative arthritis of the lumbar spine, have been met. 38 U.S.C.§§ 1131, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A Notice of Disagreement was submitted in June 2013; a Statement of the Case was issued in April 2015; and a VA Form 9 was received in June 2015. The Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing in December 2015; a transcript of that proceeding has been associated with the claims file. These matters were most recently before the Board in March 2016, at which time they were remanded for further development of the record. Service Connection – Applicable Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2018). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Lumbar Spine The Veteran contends that he injured his low back during the same incident/accident in which he sustained a (service-connected) left femur fracture. See, generally, Hearing Transcript, pp. 5-6. Specifically, during his Board hearing, the Veteran explained that he had injured his left femur in-service after jumping from a bridge to avoid being hit by a car. He noted that the incident had been inaccurately reported (in various records/STRs) as a “car accident.” He stated that he reported having back pain during active service and subsequent to the femur surgery, but was “ignored.” He has indicated a continuity of back symptoms since that time. With respect to a current diagnosis, the record reflects that the Veteran has been diagnosed with degenerative arthritis of the lumbar spine, i.e., a chronic disease. With respect to in-service injury, the Veteran is competent to report that he injured his low back in the same accident in which he fractured his femur. The Board also finds his statements concerning the in-service injury to be credible. In this regard, STRs show that the Veteran fractured his left femur after being “involved in a motor vehicle accident while on liberty on 13 January 1984.” A March 1984 STR reflects that the January 1984 injury actually occurred when the Veteran jumped off a bridge; notably, this is consistent with the Veteran’s hearing testimony. Although a back injury is not specifically noted in the STRs, given the documented in-service accident, as well as the Veteran’s competent and credible statements concerning a contemporaneous back injury/pain, in-service incurrence of a low back injury is conceded here. With respect to nexus, an April 2016 VA examiner initially opined that the lumbar spine disability was less likely than not related to the in-service injury. However, the Board does not consider the April 2016 VA medical opinion probative since the examiner’s rationale is internally inconsistent. Indeed, in the rationale portion of the opinion the examiner cited to both positive (e.g., Veteran’s statements regarding continuity of symptoms) and negative evidence; he then concluded that the lumbar spine disability was related to physical post-service work and that lumbar arthritis was “at least as likely as not related to the in-service left femur fracture.” Considering these inconsistencies, the opinion is not probative as to nexus. Nevertheless, the Board finds that the competent evidence of record reasonably supports the Veteran’s claim that he has suffered from a low back disability ever since service. See 38 C.F.R. § 3.303 (b); see also Walker, supra. His statements with regard to suffering in-service back injury are supported by the record and the findings noted in the STRs which indicate that he was involved in a significant accident; moreover, his consistent reports of ongoing low back pain ever since his in-service injury are considered forthright and credible. See Hearing Testimony (noting that he had complained of low back pain all along but it was dismissed as femur-related pain); see also April 2016 VA Examination Report. The medical evidence of record also documents that, since his military service, he has been treated for low back pain from degenerative arthritis of the lumbar spine. See, e.g., VA Treatment Records (noting chronic low back pain; joint pain; and radiating low back pain in 2003, 2004, 2009, 2013, 2014, and 2016). Resolving reasonable doubt in the Veteran’s favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that competent medical evidence, as well as the Veteran’s competent and credible statements about his in-service experiences and his in-service and post-service symptoms, all support a finding that the Veteran’s currently diagnosed degenerative arthritis of the lumbar spine began in service and has persisted since that time. Accordingly, service connection for low back disability, diagnosed as degenerative arthritis of the lumbar spine, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability The Veteran’s representative asserts that the April 2016 VA opinions obtained pursuant to the Board’s previous remand are inadequate. See IHP. The Board agrees. Specifically, the April 2016 VA examiner opined that the Veteran’s right hip disability was less likely than not related to the in-service femur fracture/injury; however, the accompanying rationale focused solely on the Veteran’s lumbar spine disability and failed to address the right hip. See April 2016 VA Hip and Thigh Conditions DBQ, p. 9 (Rationale #1-5). The examiner also provided a negative opinion with respect to aggravation; however, the accompanying rationale was entirely conclusory in nature, i.e., the examiner noted that the Veteran had a long history of physical work and that this caused the right hip disability, but he did not explain why the Veteran’s right hip disability could not otherwise be aggravated by his service-connected left femur, right knee, and/or left knee disabilities. See April 2016 VA Hip and Thigh Conditions DBQ, p. 13 (Rationale #1-3). In addition to the aforementioned deficiencies, the Veteran has long claimed that all of his orthopedic conditions are related. See Hearing Transcript. In light of this, and considering that the Board is granting service connection for a lumbar spine disability herein, the issue of secondary service connection has been raised by the record. As such, on remand, the examiner should also address whether the Veteran’s right hip disability is proximately due to, or aggravated by the service-connected lumbar spine disability. 2. Entitlement to an evaluation in excess of 10 percent for residuals, left femur fracture with left hip bursitis. The Veteran’s representative also asserts that the April 2016 VA Hip and Thigh examination is inadequate because it fails to address the severity of the Veteran’s left femur/hip disability (see DC 5255) and because it is not compliant with recent case law concerning joint testing for pain. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board agrees. In this regard, during the pendency of this appeal, the Court held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, supra. In light of the foregoing, the Board finds that a new examination is required to evaluate the current degree of impairment, to include testing in active and passive motion, in weight bearing and non-weight bearing. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and severity of his service-connected residuals of left femur fracture with left hip bursitis. The claims file should be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The VA examiner is directed to conduct range of motion testing for the left hip/femur and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. Any range of motion testing should be conducted in both active and passive range of motion, as well as in weight bearing and non-weight bearing conditions. The examiner should inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The VA examiner should comment on how and to what extent these manifestations affect the Veteran. If the severity of these manifestations cannot be quantified, the examiner must so indicate and fully explains the reasons therefor. With specific regard to the left hip/femur, the examiner is also directed to specifically comment on the following: (a) Whether the Veteran demonstrates favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction, or intermediate ankylosis, or extremely unfavorable ankylosis (the foot not reaching the ground and crutches necessitated) under 38 C.F.R. § 4.71a, Diagnostic Code 5250; (b) Whether the Veteran demonstrates flail joint of the right hip and/or left hip under 38 C.F.R. § 4.71a, Diagnostic Code 5254; (c) Whether the Veteran demonstrates malunion of the femur, with either marked, moderate, or slight knee or hip disability; or fracture of the surgical neck of the femur with false joint; or fracture of the shaft or anatomical neck of the femur with either (i) nonunion, with loose motion (spiral or oblique fracture) or (ii) nonunion, without loose motion, weight bearing preserved with aid of brace under 38 C.F.R. § 4.71a, Diagnostic Code 5255; and (d) Whether the Veteran has nerve impairment (i.e., radiculopathy involving a lower extremity) that is associated with the service-connected left hip/femur disability. If so, the examiner should determine which specific nerve groups are involved with the nerve impairment and characterize the overall neurological impairment as mild, moderate, moderately severe, or severe. The examiner should provide rationale for opinions expressed. 2. Forward the Veteran’s claims file, to include the VBMS file and Virtual VA file, to the examiner who provided the April 2016 medical opinion, or an alternate substitute if unavailable, to obtain addendum opinions as to: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right hip disability, diagnosed as osteoarthritis, is causally related to active duty, to include as due to the January 1984 incident documented in the STRs and as reported by the Veteran at his Board hearing and in other statements of record. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right hip disability is caused or proximately due to service-connected (i) residuals of left femur fracture with left hip bursitis; (ii) arthritis of the right knee; (iii) arthritis of the left knee; (iv) or degenerative arthritis of the lumbar spine. c) If causation is not established, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right hip disability is chronically aggravated by service-connected (i) residuals of left femur fracture with left hip bursitis; (ii) arthritis of the right knee; (iii) arthritis of the left knee; or (iv) degenerative arthritis of the lumbar spine. *The opinions must address both causation and aggravation to be deemed adequate. **The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. A conclusory statement (i.e., a listing of data followed by a conclusion with no supporting rationale) is not adequate. 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 an opinion cannot be made without resorting to speculation. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel