Citation Nr: 20004877 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 17-65 876 DATE: January 22, 2020 ORDER Service connection for right ankle arthritis and calcific tendonitis is granted. Service connection for right hip disabilities diagnosed as synovitis, iliotibial band syndrome, bursitis, and symphysis pubis instability is granted. REMANDED Service connection for an atrial septal defect (claimed as a heart condition) is remanded. FINDINGS OF FACT 1. The Veteran’s January 2015 VA examination report establishes a current diagnosis of right ankle arthritis. A December 2017 private chiropractic treatment record also diagnoses current right ankle calcific tendonitis. The Veteran’s service treatment records (STRs) reflect an in-service right ankle sprain and repeated reports of continuing right ankle pain. During the Veteran’s October 2019 Board of Veterans’ Appeals (Board) hearing, the Veteran provided competent and credible testimony that he has had peristent right ankle pain and functional impairment since twisting his ankle during a lengthy road march while on active duty. He also testified that he has seen a chiropractor for related treatment since discharge and submitted those treatment records and a December 2017 letter from the chiropractor relating the Veteran’s current ankle disabilities to his in-service ankle injury. [The Board notes that the January 2015 and October 2017 VA examiners’ negative nexus opinions cannot be assigned significant probative weight because the examiners did not consider the Veteran’s chiropractic treatment records or the Veteran’s competent and credible reports of persistent right ankle pain and functional loss since service.] 2. The Veteran’s January 2015 VA examination report establishes a current diagnosis of right hip synovitis. The October 2017 VA examiner also diagnosed right iliotibial band syndrome. A December 2017 private chiropractic treatment record also diagnoses right hip chronic bursitis and symphysis pubis instability secondary to the Veteran’s now service-connected right ankle and back disabilities. The Veteran’s STRs reflect several in-service right hip injuries sustained during long road marches. During the Veteran’s October 2019 Board hearing, the Veteran provided competent and credible testimony that he has had peristent right hip pain and functional impairment since the in-service hip injuries. He also testified that he has seen a chiropractor for related treatment since discharge. A December 2017 written statement from the chiropractor notes that the Veteran’s right hip bursitis and symphysis pubis instability was caused by the Veteran’s current right ankle disability and his associated abnormal gait. [The Board acknowledges the January 2015 and October 2017 VA examiners’ negative nexus opinions but cannot assign them significant probative weight because the examiners did not consider the Veteran’s chiropractic treatment records or the Veteran’s competent and credible reports of persistent right hip pain and functional loss since service and did not provide a detailed explanation for their conclusions.] CONCLUSIONS OF LAW 1. The criteria for service connection for right ankle arthritis have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for right hip synovitis and iliotibial band syndrome (on a direct basis) and chronic bursitis and symphysis pubic instability (as secondary to now service-connected right ankle and back disabilities) have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1994 to July 1998 in the United States Marine Corps. These matters are before the Board on appeal from a January 2015 rating decision. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Service connection for a back disability, previously associated with these appeals, was granted by the RO in an October 2017 rating decision. Accordingly, that issue is not before the Board and will not be addressed further here. The Board would also like to recognize the Veteran’s numerous written statements and Board hearing testimony where he patiently explained and summarized his medical conditions. He also ensured that the Board would have a complete record upon which to evaluate his claims by personally obtaining and submitting many of his records and relevant treatise evidence. In short, the Board appreciates the Veteran’s diligent and thorough efforts to explain his conditions. The Veteran truly partnered with VA in developing these claims. 1. Service connection for right ankle arthritis and calcific tendonitis 2. Service connection for right hip synovitis, iliotibial band syndrome, bursitis, and symphysis pubis instability For the reasons outlined above, service connection for these disabilities is warranted. REASONS FOR REMAND Service connection for an atrial septal defect (claimed as a heart condition) is remanded. A remand is needed to arrange an examination with a cardiologist to better evaluate the nature and progression of the Veteran’s now post-surgical atrial septal defect. The matters are REMANDED for the following action: 1. Obtain any records of VA treatment. 2. Send the Veteran a letter asking him to identify all treatment providers for his atrial septal defect and to authorize VA to obtain available records not already associated with the claims file. 3. Then please schedule the Veteran for an examination with a cardiologist to evaluate the nature and cause of the Veteran’s claimed heart disabilities, to include post-operative atrial septal defect. The Board recognizes that the detailed medical questions require significant work on the part of the medical examiner. The Board regrets the need to remand the matter to the RO, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. [The Board draws the examiner and RO’s attention to the private cardiology treatment records; a September 2013 private treadmill study report showing ischemia by EKG criteria; the December 2014 article from Pulmonary Circulation discussing impaired exercise capacity following ASD closure; the Veteran’s October 2017 VA examination report; the Veteran’s October 2019 Board hearing transcript; and the Veteran’s November 2019 written statement noting his worsening lack of endurance during active duty and that his cardiologist told him that physical activity in the Marine Corps caused his heart to enlarge (accompanied by a copy of a February 1999 echocardiogram report showing an enlarged heart), that will hopefully provide helpful information to the RO and the examiner.] The examiner should answer the following questions based on (1) a review of the claims file with a focus on the files referenced above and (2) interview and examination of the Veteran. A remand is necessary because the October 2017 VA examiner did not provide a sufficiently detailed explanation for the conclusion that the Veteran’s atrial septal defect was a static congenital defect and did not address the theory of service connection which allows for service connection to be granted when a disability is superimposed on a congenital defect. [For VA disability purposes (and under federal caselaw) a congenital abnormality that can improve or deteriorate/worsen is considered a DISEASE. In contrast, a congenital condition that is cannot change/is considered stationary or static is considered a DEFECT.] a) Identify all current cardiac conditions, to include post-operative atrial septal defect. Current means present at any time from August 2014 to present. b) Please describe all current symptoms or other manifestations of the identified condition c) Was/Is the diagnosed condition capable of worsening/deteriorating over time? (i) If the answer to c) is YES, i.e. Veteran’s heart condition is considered a disease (within the meaning of the legal term defined above), is it at least as likely as not (a 50 percent or greater probability) the condition was AGGRAVATED beyond natural progression during the Veteran’s Marine Corps service? AGGRAVATION in this context means permanent worsening beyond normal progression. (ii) If answer to c) is NO, i.e., the Veteran’s heart condition is considered a static defect (within the meaning of the legal term defined above), is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in additional cardiac disability? For example, does the Veteran have a current enlarged heart superimposed on his original atrial septal defect? If so, please identify the additional disability. In this answer, the examiner is specifically directed to consider and discuss the Veteran’s October 2019 Board testimony describing increased shortness of breath and decreased exercise tolerance during his service in the Marine Corps and the statement from his cardiologist that physical activity in the Marine Corps caused the Veteran’s heart to enlarge. The examiner is also advised that the Veteran’s reports of symptoms during service are to be considered competent and credible. These reports must be specifically acknowledged and considered in formulating any opinion. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) explanation. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Robinson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.