Citation Nr: 18151292 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 13-35 518 DATE: November 20, 2018 ORDER Entitlement to service connection for a low back disorder is dismissed. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a right hip disorder, to include as due to a service-connected left hip disorder is denied. Entitlement to service connection for a right ankle disorder, to include as due to a service-connected left hip disorder is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for stress fracture of the left femoral neck with limited flexion is remanded. FINDINGS OF FACT 1. Entitlement to service connection for a low back disorder was granted by the Regional Office (RO) in a September 2016 rating decision. 2. The Veteran’s tenosynovitis in her right shoulder is not related to her military service. 3. The Veteran does not have a current diagnosis of a right hip condition, to include as due to the Veteran’s service-connected left hip disorder, her reported pain of the right hip has not created any functional impairment at any time during the appeal period. 4. The Veteran does not have a current diagnosis of a right ankle condition, and her reported pain has not created any functional impairment of the ankle, at any time during the appeal period. CONCLUSIONS OF LAW 1. There is no question of law or fact involving the claim of entitlement to service connection for a low back disorder; therefore, the appeal must be dismissed as moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. 2. The criteria for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for a right hip disorder, to include as due to a service-connected left hip disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for a right ankle disorder, to include as due to a service-connected left hip disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 2016, the Board remanded the Veteran’s claims for entitlement to an initial increased rating for a left hip disorder as well as the Veteran’s claims for entitlement to service connection for a right shoulder disorder, a low back disorder, a right hip disorder, and a right ankle disorder to obtain VA examinations for these claims. Although an examiner provided an opinion on the Veteran’s claims for entitlement to service connection for her right shoulder, lower back, and right hip in March 2013, the Board found that the examination was inadequate as the 2013 examiner failed to consider and discuss any in-service symptoms or the Veteran’s testimony regarding such symptoms. In compliance with the remand orders, an opinion was provided by a VA examiner on the etiology of the Veteran’s claims for entitlement to service connection for a right shoulder disorder, a low back disorder, a right hip disorder, and a right ankle disorder in August 2016. A VA examination was also conducted in August 2016 to determine the severity and manifestation of the Veteran’s service-connected left hip disorder, to include a left labrum tear. The Board finds substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Entitlement to service connection for a low back disorder Under 38 U.S.C. § 7104; 38 C.F.R. § 20.101, the Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A September 2016 rating decision by the RO granted the relief sought, i.e., entitlement to service connection for a low back disorder. As such, the Veteran’s appeal for entitlement to service connection for a low back disorder is moot, as the benefits sought on appeal have already been granted. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Because there remains no case or controversy concerning whether the Veteran is entitled to the benefits sought, as the issue has been granted, the appeal with respect to this issue is dismissed. 38 U.S.C. § 7105(d)(5). 2. Entitlement to service connection for a right shoulder disorder The Veteran contends that she has a right shoulder condition that began in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of tenosynovitis in her right shoulder. However, the most probative evidence of record does not establish that her current tenosynovitis is related to her active service. The Veteran’s August 2016 VA examination shows that the Veteran was not diagnosed with tenosynovitis in her right shoulder until 2015, years after her separation from service. While the Veteran is competent to report having experienced symptoms of pain and popping in her right shoulder since service, she is not competent to provide a nexus in this case or determine that these symptoms were manifestations of her current tenosynovitis. The issue of etiology of an orthopedic condition is medically complex, as it requires training, medical knowledge and interpretation of complicated diagnostic medical testing. Further, the August 2016 VA examiner opined that the Veteran’s right shoulder condition is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that there was no documented evidence of a right shoulder injury or recurrent right shoulder pain while the Veteran was in service. The examiner further noted that the Veteran’s December 2008 separation examination noted that her upper extremities were normal at the time. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the most probative evidence of record is against the claim, and entitlement to service connection for a right shoulder disability is denied. 3. Entitlement to service connection for a right hip disorder, to include as due to a service-connected left hip disorder The Veteran contends that she experienced right hip pain on and off after her military service. She contends that her right hip disorder may be due to her service-connected left hip disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right hip condition, to include as due to the Veteran’s service-connected left hip disorder, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The August 2016 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of pain in her right hip and expressed that she was unable to walk long distances due to her hip condition, she did not have a diagnosis of a right hip condition. According to a review of the Veteran’s medical records, the examiner indicated and the Board also finds that there was no documentation of a right hip condition or recurrent treatments for a right hip condition during or immediately after service. An x-ray performed in March 2013, four years after the Veteran’s military service, was also negative for a right hip condition. The VA examiner also opined that the Veteran’s right hip pain without any objective evidence of a right hip condition is less likely related nor aggravated by the Veteran’s service-connected left hip condition. The Board notes that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467, at 28 (Fed. Cir. Apr. 3, 2018). Thus, pain alone is sufficient to establish the existence of a present disability if the pain reaches the level of a functional impairment of earning capacity. See id. However, in this case, there is no evidence of functional impairment of earning capacity. The pain is only intermittent, it only impacts her ability to walk distances, and does not require treatment. Accordingly, while pain can be a disability, the Board finds that here, the Veteran’s pain alone does not constitute a right hip disability and thus, in the absence of a current disability of the right hip, the claim must be denied. 4. Entitlement to service connection for a right ankle disorder, to include as due to a service-connected left hip disorder The Veteran contends that she has a right ankle disorder due to her service-connected left hip disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right ankle condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The August 2016 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of right ankle pain, she did not have a diagnosis of a right ankle condition. The examiner noted that, according to the March 2013 VA examination, the Veteran’s right ankle stress reaction was noted while in service but resolved without any residuals. The Board notes that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467, at 28 (Fed. Cir. Apr. 3, 2018). Thus, pain alone is sufficient to establish the existence of a present disability if the pain reaches the level of a functional impairment of earning capacity. See id. However, in this case, there is no evidence of functional impairment of earning capacity. The pain is does not require treatment or limit her functionality in any meaningful way. Accordingly, while pain can be a disability, the Board finds that here, the Veteran’s pain alone does not constitute a right ankle disability and thus, in the absence of a current disability of the right ankle, the claim must be denied. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for stress fracture of the left femoral neck with limited flexion is remanded. A VA examination was conducted in August 2016 to determine the severity of the Veteran’s stress fracture left femoral neck. The Veteran did not report any flare-ups of her hip and thigh at the time of the examination. However, with respect to functional loss or functional impairment, the Veteran reported that she is not able to walk for long distances secondary to her left hip pain. The examiner indicated that the Veteran’s range of motion in her left hip was abnormal or outside of normal range. Flexion was 0 to 110 degrees; extension was 0 to 20 degrees; abduction was 0 to 30 degrees; adduction was 0 to 25 degrees. Adduction was not so limited such that the Veteran could not cross her legs. The examiner indicated that the Veteran’s range of motion in her left hip did not itself contribute to a functional loss. There is evidence of pain with weight bearing. There is no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue. There was no objective evidence of crepitus. During repetitive use testing, there was no additional loss of function or range of motion after three repetitions. With respect to repetitive use over time, the examiner noted that the Veteran’s pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no evidence of reduction in muscle strength, muscle atrophy, ankylosis, or malunion of the femur, flail hip joint, or leg length discrepancy. The examiner indicated that the Veteran uses a cane due to her left hip pain. The Board notes that the Court has held that 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). Unfortunately, the August 2016 VA examination did not address pain on passive motion and on nonweight-bearing. Therefore, the Veteran must be afforded a new examination that complies with these requirements. The matter is REMANDED for the following action: 1. Schedule a VA examination to evaluate the current severity of the Veteran’s left hip, including her stress fracture of the left femoral neck. The electronic claims folders should be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. The examinations should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the hip. The examiner should fully describe and distinguish any impairment arising from pain on active motion, passive motion, in weight-bearing, and 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. The rationale for all opinions expressed must be provided. 2. After completion of the above, readjudicate the claim. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the appellant and her representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel