Citation Nr: 18152987 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-19 876A DATE: November 27, 2018 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from December 7, 2003 to March 11, 2005, and from March 12, 2005 to April 18, 2007, including a tour in Iraq. He had over 20 years of service in the Army National Guard, including service from June 29, 1982 to October 21, 1982 for active duty for training. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. In his June 2014 substantive appeal, the Veteran requested a videoconference hearing. In September 2018, the Veteran was scheduled to testify at a videoconference hearing before the Board at the Memphis, Tennessee Regional Office (RO). The Veteran did not appear for the hearing, did not submit a request for postponement, and has not proffered good cause for missing the hearing. Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn and will proceed to review the case based on the evidence of record. See C.F.R. § 20.704(d), (e). Additionally, the Board notes that new and relevant medical evidence in the form of VA medical records has been associated with the claims file since the RO certified the claim to the Board in August 2017. The Veteran has not waived initial consideration by the RO. However, the Board finds it would serve no useful purpose to seek such a waiver and further delay the process in this case, as both issues on appeal require remand to the RO for further development whether or not the new records are considered. The Board addresses service connection for a right hip and for a right knee disability together below, as the issues have substantially the same relevant factual information and are being remanded for the same reasons. 1. Entitlement to service connection for a right hip disability and for a right knee disability. The Veteran contends that his right hip disability and his right knee disability are both secondary to the altered gait caused by the pain from his service-connected bilateral foot disabilities. Several VA examinations are of record that provide negative evidence against the Veteran’s claims for service connection. A June 2009 VA examiner stated that the Veteran “does not describe hip pain or knee pain. What he describes is burning and numbness in his right thigh. This is pain from his lower back and the pain radiates to this thigh.” The examiner concluded that the Veteran did not have a right hip or right knee disability. An opinion issued by a VA examiner in May 2011 acknowledged that the Veteran had an antalgic gait, right hip pain associated with a non-service connected low back disability, and right knee degenerative joint disease. The examiner opined “his plantar fasciitis had no impact in causing either one of these problems nor in worsening them.” No explanation was provided regarding the examiner’s apparent conclusion there was no harm caused by the Veteran’s altered gait. May 2012 VA examinations for the Veteran’s right hip and right knee found limited range of motion, less movement than normal, weakened movement, and pain on movement. The examiner found that neither joint had arthritis. The examiner concluded that the Veteran’s conditions were less likely than not related to his time in service, but no opinion was given for whether the conditions could have been caused or aggravated by the Veteran’s service-connected foot disabilities. The stated rationale for the Veteran’s right knee was “no documentation to support chronic condition, hx of DDD of lumbar spine.” The stated rationale for the Veteran’s right hip was “no documentation of chronic condition, HX of DDD of lumbar spine causing pain in hips.” The Board notes that none of the above examinations directly discussed the Veteran’s contention that the altered gait associated with his service-connected foot disabilities caused his right hip and right knee disabilities to develop. The medical evidence of record shows many instances where the Veteran was noted to have an altered gait associated with his service-connected foot disabilities, including throughout the Veteran’s STRs. E.g., STR dated Aug. 18, 2006. Further, a letter from the Veteran’s private treatment provider dated May 2011 stated that the Veteran’s gait caused him to develop right hip pain. Other relevant evidence in the newly associated VA treatment records show that an association has been explored between the Veteran’s service-connected foot disabilities and both the Veteran’s right hip pain and right knee pain. For instance, in February 2011, the Veteran’s doctor offered “aggressive podiatric treatment” to help treat a flare up of the Veteran’s knee and hip pain. Thus, it is necessary to determine whether the Veteran’s service-connected foot disabilities, to include the altered gait caused by pain from the disabilities, caused or aggravated either disability. In addition to the positive evidence of record that has not been adequately discussed (or in some cases, reviewed) by VA examiners thus far, the Board notes that in October 2003 (two months before one of the Veteran’s instances of active duty service) the Veteran had diagnostic imaging that found “probable early degenerative arthritis.” However, as already described above, there is conflicting information of record regarding whether the Veteran actually has arthritis of the right knee. Imaging taken for the Veteran’s most recent VA examination in May 2012 found that the Veteran did not have arthritis of the right knee, but the examination does conflict with earlier evidence of record. Thus, it is necessary to get an opinion clarifying the proper diagnosis and timeline of disease progression for that joint. In particular, because the condition may have existed prior to a period of active duty service, the VA examiner must determine if there is clear and unmistakable evidence “both that (1) the Veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Accordingly, the Board finds that both issues must be remanded for additional medical examinations. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims file). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current right hip disability, to include pain that causes functional impairment. A copy of this remand must be provided to the VA examiner. Any clinically indicated imaging should be scheduled. The examiner must opine whether any identified right hip disability: (a.) Is at least as likely as not (a 50% or higher degree of probability) related to the Veteran’s active duty military service? In making a determination regarding whether any disability had its onset in service, the examiner should note that pain with functional impairment is a disability for service-connection purposes. (b.) Is at least as likely as not caused by the Veteran’s service-connected foot disabilities, to include any gait abnormalities from the associated pain? (c.) Is it at least as likely as not that the right hip disability has been aggravated by the Veteran’s service-connected foot disabilities, to include any gait abnormalities? In this context, the term “aggravation” means any increase in the claimed disability, and does not require a permanent increase. A rationale should be provided for all opinions rendered, to include discussion of the relevant information which is contained in the record. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current right knee disability, to include degenerative joint disease or pain that causes functional impairment. A copy of this remand must be provided to the VA examiner. Any clinically indicated imaging should be scheduled. The examiner must opine: (a.) If the Veteran has diagnosed arthritis of the right knee, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the arthritis preexisted the Veteran’s entrance into service in December 2003? The examiner should note that there are conflicting imaging results related to the Veteran’s right knee. X-ray findings from October 2003 noted the presence of “PFPS” and “probable early degenerative arthritis,” but a May 2012 VA examination indicates that an x-ray was taken and found the Veteran had no arthritic changes present in his knee. (b.) If the examiner answers the above in the affirmative, is it clear and unmistakable (obvious, manifest, or undebatable) that any increase in disability during service to the Veteran’s preexisting right knee arthritis was due to the natural progress of the disease? (c.) If the answer to (a) is negative, is it as least as likely as not (a 50% or higher degree of probability) that any identified right knee disability (to include pain with associated functional impairment) is related to the Veteran’s active duty military service? (d.) If the answer (a) is negative, is it as least as likely as not that any right knee disability is caused by the Veteran’s service-connected foot disabilities, to include any gait abnormalities from the associated pain? (e.) Is it at least as likely as not that the right knee disability has been aggravated by the Veteran’s service-connected foot disabilities, to include any gait abnormalities? In this context, the term “aggravation” means any increase in the claimed disability, and does not require a permanent increase. A rationale should be provided for all opinions rendered, to include discussion of the relevant information which is contained in the record. 4. In readjudicating the claim following the above development, the RO should note that new and relevant VA treatment records were received following certification of the claim to the Board in August 2017, and ensure that all such records are properly considered. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel