Citation Nr: 18152262 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-42 065 DATE: November 21, 2018 ORDER New and material evidence having been received, the claim for service connection for residuals of a right hip fracture is reopened. Entitlement to service connection for residuals of a right hip fracture is granted. REMANDED Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for left ankle degenerative arthritis is remanded. Entitlement to service connection for right ankle arthritis is remanded. Entitlement to a higher rating for degenerative arthritis of the lumbar spine is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDING OF FACT 1. Service connection for a right hip disability was denied in an unappealed February 1988 rating decision. New and material evidence was not received within a year of notice of the decision. 2. Evidence received since the February 1988 rating decision was not previously considered by the agency decision makers, relates to unestablished facts and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in the Veteran favor, residuals of right hip fracture are related to an injury during active service. CONCLUSIONS OF LAW 1. The criteria to reopen a previously denied claim of entitlement to service connection for residuals of right hip fracture are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for residuals of a right hip fracture are met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1976 to July 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. 1. New and Material evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In a February 1988 rating decision, the RO denied service connection for residuals of a right hip fracture on the basis that there was no evidence of an injury in service and nexus between a current disability and service. The Veteran was provided notice of the decision, and of his appellate rights, in March 1988 correspondence. The Veteran did not appeal the decision and no new and material evidence was associated with the claims file within one year of receiving notice. 38 C.F.R. § 3.156(b). The February 1988 decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed an application to reopen his claim in February 2012. At the time of the February 1988 rating decision, evidence relevant to the claim included the Veteran’s DD Form 214, service personnel records, a copy of an August 1976 entrance examination, and a report from an August 1987 VA examination. Evidence since the February 1988 rating decision includes a June 2018 hearing transcript and lay statements from the Veteran describing his in-service injury, and a copy of a June 2013 VA examination report. This evidence was not previously submitted, and therefore is new. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA examination report shows an examiner considered the Veteran’s description of his in-service injury and treatment and opined that his right hip disability is related to service. This evidence relates to unestablished facts – the occurrence of an in-service injury and whether the Veteran’s current hip condition is related to such. The petition to reopen the claim of entitlement to service connection for residuals of a right hip fracture is granted. 2. Entitlement to service connection for residuals of right hip fracture The Veteran seeks service connection for residuals of a right hip fracture. He asserts that he injured both his hip while lifting ammunition up from a dock space. He indicates that he was crushed against the dock when a truck backed into him and fractured his hip. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds the Veteran has a current hip disability. A June 2013 VA examination report shows reduced range of motion, weakened movement, excess fatigability, and pain on movement. Associated imaging showed a deformity of the right superior and inferior pubic rami compatible with remote healed fractures, and joint space narrowing and sclerosis of the sacroiliac joints bilaterally. The examiner provided a diagnosis of residuals of a right hip fracture. As to whether an injury was incurred in service, the evidence largely consists of the Veteran’s self-reported history. This is because most of his service treatment records are missing through no fault of his own. The Board therefore has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Of the service records available, there are a few dental records, a few entries noting back pain, and the Veteran’s enlistment examination dated July 1976. The enlistment examination report shows his lower extremities were evaluated and found normal. The lower extremities were assigned a profile of “1.” See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the ‘PULHES’ profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The addendum notation on this form dated August 17, 1976; appears to indicate that no disqualifying defects were noted. Thus, the Veteran is presumed to have entered service in sound condition. Although not dispositive of an injury in service, the Board notes that a post-service VA examination report dated in August 1987- less than a month of service discharge- shows the Veteran reported that he had been struck by a 2 ½ ton truck, in August 1976, fracturing his right hip. He reported that he had been hospitalized for 6 weeks, followed by physical therapy for six weeks. An associated radiologic report showed evidence of an old fracture through the acetabulum extending inferiorly through the lateral and superior pubic ramus. This contemporaneous evidence buttresses the Veteran’s current testimony that he injured his hip during service. Based on this evidence, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that an in-service injury occurred as described. The remaining question is whether the Veteran’s current right hip fracture residuals are related to his in-service injury. At the June 2013 VA examination, an examiner opined that, “It is at least as likely as not that the Veteran’s fracture of the acetabulum and pubic ramus with decreased range of motion in hip is related to military service.” The examiner explained that an August 1987 VA examination report shows evidence of an old fracture and shows a condition consistent with the reported injury in service. He explained that the [current] findings are consistent with a chronic ongoing condition back to the date of service. The Board finds the June 2013 VA opinion to be persuasive and of significant probative value because it addressed the relevant evidence, reflects consideration of the credible lay evidence and contemporaneous findings, and provided a supporting rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record. In conclusion, the evidence supports an injury during service, a current diagnosis, and competent evidence of a link between the current right hip disability and service. Therefore, the Board finds a sufficient basis for granting service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left knee arthritis, to include as secondary to arthritis of the lumbar spine is remanded. 2. Entitlement to service connection for right knee arthritis, to include as secondary to arthritis of the lumbar spine is remanded. 3. Entitlement to service connection for left ankle degenerative arthritis, to include as secondary to arthritis of the lumbar spine is remanded. 4. Entitlement to service connection for right ankle arthritis, to include as secondary to arthritis of the lumbar spine is remanded. The Veteran seeks service connection for bilateral knee and ankle arthritis. He has asserted that these disabilities are directly related to an injury incurred in service, or in the alternative, are secondary to his service-connected lumbar spine disability. Further development is required. First, additional development needs to be undertaken to obtain the Veteran’s service treatment records. As noted, the available service treatment records are scant. It does not appear that all efforts to locate these records have been exhausted. The record also does not contain a formal finding showing development efforts undertaken. Second, the June 2013 VA opinion requires an addendum. The examiner opined that the current bilateral knee and ankle arthritis are less likely as not related to his military service. The examiner did not, however, provide an opinion as to whether the disabilities were caused or aggravated by the service-connected lumbar spine disability as the Veteran asserts. See § 3.310. Accordingly, a medical opinion along with supporting clinical rationale is needed. 5. Entitlement to a higher rating for degenerative arthritis of the lumbar spine is remanded. During the pendency of the appeal, the Veteran underwent VA examinations for his lumbar spine disability in June 2013 and March 2016. These examination reports do not include all the required testing pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Specifically, these examination reports reflect ranges of motion, but do not indicate whether pain was present during both active and passive range of motion, or whether pain on nonweight-bearing was observed as required by Correia. Moreover, the March 2016 VA examiner indicated that an opinion on functional loss during a flare-up could not be provided without resort to mere speculation. The report provides no further explanation, and the examiner did not otherwise obtain sufficient information from the Veteran regarding the nature or frequency of his flare-ups. In Sharp, the Court addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. The Court noted that VA examiners should offer opinions based on estimates of functional impairment (after repetitive use or during a flare-up) derived from information procured from all relevant sources, including the lay statements of veterans. Accordingly, on remand, the Veteran should be scheduled for a new VA examination to address the criteria set out in these cases. 6. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU and asserts that he is unable to work due ot his service-connected lumbar spine and right hip, and his legs. The Board has granted service connection for the right hip in this decision. The effectuation of the grant and assignment of an initial rating may impact the Veteran’s TDIU claim. Also, claims for an increased rating for the service-connected lumbar spine disability and entitlement to service connection for the bilateral knee and ankles, are being remanded for further development. As the resolution of these claims could impact the TDIU claim, they are inextricably intertwined. Accordingly, adjudication of the claim for TDIU is deferred. The matters are REMANDED for the following action: 1. Contact the appropriate locations (e.g., National Personnel Records Center (NPRC), the Army Reserve Personnel Center, the Records Management Center (RMC), etc.), to request the Veteran’s complete service personnel and treatment records. If complete STRs cannot be located or are otherwise unavailable, the Veteran must be notified, and a Formal Finding of Unavailability must be included in the claims file. 2. Update the claims file with any outstanding VA and private treatment records. 3. Obtain medical opinions concerning the etiology of the Veteran’s bilateral knee and ankle arthritis. The examiner must review the entire claims file and a copy of this Remand in conjunction with authoring the opinion. The need for a physical examination is left to the discretion of the examiner. The examiner is asked to answer the following questions: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral knee and/or ankle arthritis are related to his reported in-service injury? b) Is it at least as likely as not that bilateral knee and/or ankle arthritis are either caused or aggravated by his service-connected arthritis of the lumbar spine and/or service-connected residuals of right hip fracture? This question requires two separate opinions: one for proximate causation and a second for aggravation. The term “aggravation” means a permanent worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity for the bilateral knees and/or ankles prior to aggravation by the service-connected arthritis of the lumbar spine or right hip fracture. A complete rationale, which reflects consideration of the pertinent evidence of record, to include the Veteran’s lay statements, must be provided for all opinions. 4. Schedule the Veteran for an appropriate VA examination to evaluate the current nature and severity of his lumbar arthritis. The claims file should be reviewed. The joints involved should be tested for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this cannot be performed, the examiner should explain why. The examiner should note whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess additional functional impairment in terms of the degrees of additional range of motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time, the examiner must still estimate any additional functional impairment (in terms of the degrees of additional range of motion lost) based on the evidence of record and the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. To be clear, the Veteran should be asked to give a lay description of such characteristics, and the examiner should consider his response in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner. All opinions expressed should be accompanied by supporting rationale. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel