Citation Nr: A20000833 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 190318-4058 DATE: January 27, 2020 ORDER Entitlement to service connection for right hip strain as secondary to service-connected left knee and lumbar spine disabilities is granted. Entitlement to service connection for right knee strain as secondary to service-connected left knee and lumbar spine disabilities is granted. Entitlement to service connection for right foot Morton’s neuroma as secondary to service-connected left knee and lumbar spine disabilities is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise in the finding that the Veteran’s right hip, right knee and right foot are proximately due to or caused by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip strain have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for right knee strain have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for right foot Morton’s neuroma have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the U.S. Marine Corps on active duty from June 2002 to April 2005. In July 2018, the Veteran elected to participate in the Rapid Appeals Modernization Program (RAMP), a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. RAMP is part of the Appeals Modernization Act (AMA) or Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, which has been codified as amended in scattered sections of 38 U.S.C. § 131 Stat. 1105 (2018). The Veteran elected RAMP’s supplemental claim option; this involved withdrawing his pending appeal and returning to the RO for further consideration. A January 2019 rating decision denied the Veteran’s claims and he timely appealed the RAMP rating decision to the Board and selected the evidence review lane, which allows for the submission of additional evidence for up to 90 days. The Board notes that the Veteran submitted additional evidence outside the 90-day submission period. Therefore, the Board may not consider this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The law also provides a disability may be service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Service connection for right hip secondary to service-connected left knee disability and lumbar strain. The Veteran asserts that his right hip strain is secondary to his service-connected left knee and/or lumbar spine disabilities. The Veteran has been service connected for his left knee since April 2005 and his lumbar strain since October 2012. In the March 2019 rating decision, the Agency of Original Jurisdiction (AOJ) determined the Veteran has a current right hip strain. The Board is bound by this favorable finding. 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)). The question in this case is whether the Veteran’s right hip strain is caused or aggravated by his service-connected disabilities. The Veterans right hip was examined by VA in September 2017 and the VA examiner determined the right hip strain is less likely than not proximately due to or the result of the service-connected lumbar strain. The examiner reasoned there was no evidence in the claims file such as gait disturbance or “other evidence for increased mechanical stress on the right hip, to create a nexus” between the Veteran’s right hip strain and lumbar strain. The examiner failed to discuss whether his right hip strain was aggravated by his lumbar strain and also did not discuss whether the Veteran’s service-connected left knee disability caused or aggravated the right hip disability. In an October 2017 VA medical opinion, the examiner opined the Veteran’s right hip disability is less likely than not proximately due to or the result of his service-connected left knee disability. The examiner’s reasoning was similar to the September 2017 opinion, noting there is no evidence of gait disturbance or “other evidence for increased mechanical stress on the right hip, to create a nexus” between the right hip and the left knee disabilities. The examiner did not address whether the Veteran’s right hip was aggravated by his left knee. In June 2018, the Veteran submitted an independent medical examination from a Doctor of Osteopathic Medicine, Dr. W.R.G. The examiner concluded that the Veteran has an antalgic gait resulting from his service-connected left knee disability and the failure to treat the disability properly resulted in “abnormal stress on his right lower extremities” causing him to develop several disabilities. The examiner identified disabilities to include lumbosacral spine strain, with radicular pain shooting down to his right foot and disarticulation in both hips. The examiner noted significantly, the Veteran’s left knee patellae revealed a circumference of 49 centimeters and the right knee patellae revealed a circumference of 53 centimeters. “This is indicative of some withering on the left lower extremity, which is consistent with a greater proportion of the load on walking carried by the right lower extremity.” The examiner went on to say that this inequity in load carrying, as manifested by an antalgic gait, has been the primary factor in the development of the severe abnormalities in the lumbar spine, which “prefaced the subsequent development of pain in the right hip, right knee, and right metatarsalgia.” In a February 2019 VA medical opinion, the VA examiner concluded the Veteran’s right hip strain is less likely than not due to or the result of his lumbar or left knee disabilities. The examiner noted that “while it may seem logical that maneuvers designed to lessen the load on one leg would increase that on the other, there is no evidence to support this.” The examiner further stated gait studies on patients with a short-leg limp show that while force was transmitted on to the affected leg was reduced, the force transmitted onto the opposite leg was the same as in normal. The examiner concluded the Veteran’s right hip condition is more likely due to his own anatomy. The March 2019 VA examiner did not comment on whether the Veteran’s right hip strain was aggravated by his lumbar spine or left knee disabilities. The September 2017, October 2017, and February 2019 VA opinions all conclude the Veteran’s right hip strain was not caused or the result of his service-connected disabilities, however the opinions do not address whether the right hip strain is aggravated by any service-connected disabilities. The Courts have observed that when VA is deciding such a case on the basis of “aggravation,” language “not due to,” “not caused by,” or “not related to” a service-connected disability is insufficient. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Instead, the opinion must be responsive to the question of whether or not a service-connected disorder worsened a disorder for which the Veteran is seeking service connection. As the September 2017, October 2017, and February 2019 VA opinions fail in this regard, the Board finds they are inadequate to assist the Board in adjudicating the claims. The June 2018 independent medical opinion concludes that the Veteran’s right hip strain is the result of his service-connected disabilities and includes an adequate supporting rationale. The conclusions were reached after a review of the claims file, and after hours obtaining a detailed history, and performing a physical examination of the Veteran. As this is the only adequate medical opinion of record, the Board finds it holds decisive weight. Thus, the preponderance of the evidence supports the Veteran’s claim of service connection for a right hip strain as secondary his service-connected left knee and lumbar spine disabilities. 2. Service connection for right knee disability secondary to service-connected left knee disability and lumbar strain. The Veteran asserts that his right knee condition is secondary to his service-connected left knee and/or lumbar spine conditions. In the March 2019 rating decision, the Agency of Original Jurisdiction (AOJ) determined the Veteran has a current right knee joint osteoarthritis and right knee chondromalacia patella. The Board is bound by this favorable finding. 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)). The question in this case is whether the Veteran’s right knee disability is caused or aggravated by his service-connected disabilities. A September 2017 VA opinion found the Veteran’s right knee disability is less likely than not proximately due to or the result of the service-connected left knee disability. The examiner stated there was no evidence in the Veteran’s claims file, to include gait disturbance, to create a causative relationship between the right knee strain and the service-connected left knee disability. The examiner noted the Veteran’s right knee strain is at least as likely as not the result of obesity. In an October 2017 VA medical opinion, the examiner opined the Veteran’s right knee disability is less likely than not proximately due to or the result of his service-connected lumbar spine disability. The examiner’s reasoning was similar to the September 2017 opinion, noting there is no evidence of gait disturbance or “other evidence for increased mechanical stress on the right knee, to create a nexus” between the right hip and the left knee disabilities. The examiner failed to opine as to whether the Veteran’s right knee disability was aggravated by his service-connected disabilities. As noted above, the Veteran submitted an independent medical opinion in June 2018 and that opinion concluded the Veteran’s right knee strain was the result of his service-connected disabilities. In a February 2019 VA medical opinion, the VA examiner concluded the Veteran’s right knee strain is less likely than not due to or the result of his lumbar or left knee disabilities. The examiner reasoned there was no clear evidence to show the Veteran’s lumbar spine disability would have a significant impact unless the injury resulted in major muscle or nerve damage and/or a significant limb length discrepancy. The examiner noted with respect to the Veteran’s right knee strain being secondary to his left knee disability, “while it may see logical that maneuvers designed to lessen the load on one leg would increase that on the other, there is no evidence to support this.” The examiner further stated gait studies on patients with a short-leg limp show that while force was transmitted on to the affected leg was reduced, the force transmitted onto the opposite leg was the same as in normal. The examiner failed to opine as to whether the Veteran’s right knee disability was aggravated by his service-connected disabilities. The September 2017, October 2017 and February 2019 VA medical opinions do not address the element of aggravation and are therefore inadequate to assist the Board in deciding the claim. The June 2018 independent medical opinion concludes that the Veteran’s right knee strain is the result of the Veteran’s service-connected disabilities and includes an adequate supporting rationale. The conclusions were reached after a review of the claims file, and after hours spent obtaining a detailed history and performing a physical examination of the Veteran and the Board finds the opinion highly probative. As this is the only adequate medical opinion of record, the Board finds it holds decisive weight. Thus, the preponderance of the evidence supports service connection for a right knee strain as secondary his service-connected left knee and lumbar spine disabilities. 3. Service connection for right foot Morton’s neuroma secondary to service-connected left knee disability and lumbar strain. The Veteran asserts that his right foot Morton’s neuroma is secondary to his service-connected left knee and/or lumbar spine conditions. In the March 2019 rating decision, the Agency of Original Jurisdiction (AOJ) determined the Veteran has a current right foot Morton’s neuroma. The Board is bound by this favorable finding. 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)). The question in this case is whether the Veteran’s right foot disability is caused or aggravated by his service-connected disabilities. The Veteran’s right foot was first examined by VA in January 2013 and the VA examiner concluded that without relying on pure speculation, there could be no correlation associated between the Veteran’s right foot disability and the service-connected left knee disability. A supporting rationale was not included with this opinion. As mentioned previously, the June 2018 independent medical opinion concluded the Veteran’s right lower extremity disabilities, to include right foot Morton’s neuroma were the result of his service-connected lumbar spine and left knee disabilities. The Veteran’s right foot was examined most recently by VA in March 2019 and the VA examiner opined the evidence does not show the Veteran’s right foot disabilities resulted from or was aggravated by a service-connected disability. However, the VA examiner failed to include a supporting rationale for the conclusions reached. The January 2013 and March 2019 VA medical opinions fail to include supporting rationale for the conclusions reached and fail to address the element of aggravation; thereby making the opinions inadequate to assist the Board in adjudicating the claim. The June 2018 independent medical opinion concludes that the Veteran’s right foot Morton’s neuroma is the result of the Veteran’s service-connected disabilities and includes an adequate supporting rationale. The conclusions were reached after a review of the claims file, and after hours spent obtaining a detailed history and performing a physical examination of the Veteran and the Board finds the opinion highly probative. As this is the only adequate medical opinion of record, the Board finds it holds decisive weight. Thus, the preponderance of the evidence supports service connection for a right foot Morton’s neuroma as secondary his service-connected left knee and lumbar spine disabilities. REASONS FOR REMAND 1. Service connection for GERD. The Veteran contends his GERD is caused or aggravated by his service-connected acquired psychiatric disorder. In September 2017, the Veteran was examined by VA and the VA examiner opined the Veteran’s GERD was less likely than not secondary to his service-connected acquired psychiatric disorder. The examiner noted the Veteran’s obesity is at least as likely as not the proximate cause of his GERD. The examiner failed to opine as to whether the Veteran’s GERD was aggravated by his service-connected mood disorder. The opinion must be responsive to the question of whether or not a service-connected disorder worsened a disorder for which the Veteran is seeking service connection. The United States Court of Appeals for Veterans Claims (Court) held in the case of Ward v. Wilkie, 31 Vet. App. 233, 238 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. As such, the examiner should also consider this clarified standard. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from the appropriate medical professional to determine the nature and origin of the Veteran’s GERD. Whether a physical examination of the Veteran is required will be left to the discretion of the selected examiner. The examiner is asked to provide an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) GERD is caused or aggravated by the Veteran’s service-connected acquired psychiatric disorder, to include any incremental increase or non-permanent aggravation of the GERD. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner shall note that an opinion which does not address “aggravation,” or a worsening of the Veteran’s current disability may be deemed inadequate. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Shannon 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.